' IQBAL HAMEED-UR-REHMAN, C.J.---By means of present Criminal Miscellaneous filed under section 561-A, Cr.P.C., the petitioner has made the following prayer:-- ' It is prayed that on the acceptance of this petition, the impugned portion of order dated 20-7-2011 relating to directions for initiating 145, Cr.P.C. Proceedings and order regarding leading of prayers by Mouzan of Masjid Al-Momineen may graciously be quashed.
2. The facts forming background of this petition are that the petitioner had been performing his duties as Imam and Khateeb of Mosque known as Masjid-al-Momineen since 2001. Subsequently, some disputes arose between the petitioner/Imam, Nimazies and Mosque Administration and in this regard an application was moved by present respondents Nos.2 to 5, which was marked to Police Station Shalimar, upon which, Azmat ASI summoned both the parties to the Police Station, who after hearing both the sides held that the matter is of religious nature, which can be converted into a serious and dangerous situation and there is also a chance of breach of peace and tranquility, therefore, Kalandra under sections 107/150, Cr.P.C. Was prepared and sent to the Court.
Assistant Commissioner/Magistrate Ist Class, Islamabad vide order dated 29-6-2011 directed the Moazan of Masjid Al-Momineen to lead prayers as Imam and the Auqaf Department was also directed to manage any other undisputed Imam to lead the prayer of Jumma. Feeling dissatisfied, the petitioner assailed the said order by way of revision under section 439-A, Cr.P.C. The learned Additional Sessions Judge, Islamabad vide the impugned order dated 20-7-2011, upheld the order under sections 107/150, Cr.P.C. Of Assistant Commissioner/ Magistrate Ist Class Islamabad.
Nevertheless, the order regarding appointment of Mouazan as Imam instead of present petitioner was declared to be coram non judice and set aside the same and the case was remanded to the learned Magistrate Ist Class, Islamabad to initiate proceedings under section 145, Cr.P.C., hence the present petition.
3. Learned counsel for the petitioner contends that the impugned order is arbitrary, against the law and fundamental rights of the petitioner guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973; that the impugned order is unique one inasmuch as on one hand respondent No,6 has been held coram non judice and on the other hand the case has been remanded to him to try the same afresh; that the Mosque being a public place could not be proceeded against under section 145, Cr.P.C.; that the learned Magistrate Ist Class passed' the order in absence of petitioner and thus an injunctive order has been passed without fixing the next date of hearing; that though the learned Additional Sessions Judge accepted the petition of the petitioner, but no relief was given to him; that since there was no dispute regarding Mosque and the only there was question of office of Imam, therefore, there was no question of proceedings under section 145, Cr.P.C.; that the matter was purely of civil nature, regarding which civil suits are already pending before the Court of competent jurisdiction. He explains that there are two types of mosques in Islamabad i.e, one is under the supervision of Auqaf Department and other are under the Mosque Committees; that the petitioner was appointed as Imam 10 years ago and no allegation whatsoever was levelled against him during this long period. By the dint of above submission, it is prayed that the impugned order may be set aside. In order to strengthen his contentions; the learned counsel has relied upon 2010 SCMR 1835, PLD 2011 Lahore 181, 2008 SCMR 1151, PLD 201 Lahore 246, 2011 YLR 437, 1987 PCr.LJ 263, Karachi, PLD 1958 (W.P.) Karachi 513, 1974 PCr.LJ Note at p.8, PLD 1966 (W.P) Lahore 675, PLD 1970 Peshawar 19, PLD 1993 Karachi 805, PLD 2004 Supreme Court 321, 1984 PLC 1510. PLD 2002 Supreme Court 280, 2004 CLC 834, Lahore, 2006 MLD 938, Lahore, PLD 2008 Quetta 7, 2010 YLR 948 and 2008 YLR 593.
4. Conversely, learned counsel for respondents Nos.2 to 5 contends that the present petition is not maintainable; that the petitioner was appointed as Imam under some terms and conditions and he has violated the same; that the petitioner was not authorized to receive the subscription, but even then he used to receive the same; that one Tariq Sheikh delivered $ 1400 to the petitioner as subscription, but he kept the same with him and did not deposit the same, therefore, he was removed from the office of Imam by the Board of Trustees with cheque of salary of one month, which he received in presence of witnesses. It is added that the impugned order was passed quite in accordance with law. Learned Deputy Attorney-General also supported the impugned order.
5. I have heard the learned counsel for The parties at length and perused the material made available.
6. The prayer clause of present petition transpires that the petitioner is seeking the setting aside of the impugned order dated 20-7-2011 only to the extent of direction of initiation of, proceedings under section 145, Cr.P.C. And leading of prayers by Mouazan of Masjid Al-Momineen. As regards the direction regarding initiation of proceedings under section 145, Cr.P.C. Both the parties have admitted that neither they had made any prayer to the same nor it was the dispute between the parties before the learned Additional Sessions Judge, Islamabad. The learned Additional Sessions Judge, Islamabad has also not recorded any findings before issuance of said direction. There was also not a dispute of ownership of Mosque. Therefore, there was no need to issue such direction.
Even otherwise, proceedings under section 145, Cr.P.C. Cannot be initiated against Mosque. In this regard, I am pining my faith on the case of Abdul Majid v. The State and others (1968 PCr.LJ 659, Lahore), wherein it has been held as under:--- "Criminal Procedure Code (V of 1898), Ss. 145 & 147,- Muhammadan Law-Mosque-House of God cannot be possessed by an individual---cannot be sealed under S.145---locking of mosque not only illegal, unjustified and without jurisdiction but also attracts wrath of Almighty on person responsible for passing such order-dispute regarding user of mosque-Magistrate can, under section 147, only prohibit interference with such user-Dispute regarding control and management of mosque with apprehension of breach of peace cannot be decided by Criminal Court either under S.145 9r S.147."
' In view of this situation, the impugned order remanding the case to the learned Magistrate Ist Class, Islamabad to initiate proceedings under section 145, Cr.P.C. Is against the law and not sustainable and as such to this extent the same is set aside.
7. Now adverting to second portion of prayer i.e, leading of prayer 'by Mouazan, without indulging into the controversy whether the petitioner was removed rightly or wrongly, I would like to refer Rule 10(2) of Mosque Committee Constitution, Function, and Dissolution Rules, 1986, which provides a remedy in case of dispute between Mosque Committee and Khateeb, which reads as under:- "10(2) In case of any dispute between the Khateeb and the Mosque Committee the matter would be referred to Deputy Director (Auqaf) for resolution."
' From the above rule, it is crystal clear that Deputy Director (Auqaf) is the competent authority to resolve the matter in issue. It is an admitted fact that none of the parties has approached the said quarter to resolve the present controversy. As the controversy has arisen between the Imam and the Mosque Committee, therefore, the matter falls within the purview of Rule 10(2) Mosque Committee Constitution, Functions and Dissolution Rules, 1986, which is to be decided by the Deputy Director Auqaf. In such like situation, the appropriate concerned department would naturally be the Auqaf Department which overall supervises the functions of Mosques and Enshrines in ICT, Islamabad.
8. In view of what has been discussed above, the instant petition is disposed of in the terms, that the order of Magistrate Ist Class, Islamabad to the extent of leading prayers by Mouzan of mosque and the impugned order dated 20-7-2011 to extent of issuance of direction regarding initiation of proceedings under section 145, Cr.PC. And remand of case to the learned Magistrate Ist Class, Islamabad is hereby set aside and as per Rule 10(2) of Mosque Committee Constitution, Functions and Dissolution Rules, 1986 the parties are directed to approach the Deputy Director, Auqaf Department, ICT, Islamabad for redressal of their grievances, who shall decide the same after hearing the parties in accordance with law within a period of two months from receipt of the same.
At the same time, during the pendency of the matter before the Deputy Director Auqaf, the Director Auqaf/Deputy Commissioner, ICT, Islamabad is directed to immediately make alternate arrangements for running the affairs of the mosque as well as for leading prayers and Taraweehs etc. For interim period. The competent authority of Auqaf may seek assistance from the Magistrate concerned to tackle the law and order situation if so arises and to avoid any untoward incident.