MOHAMMED AZAM KHAN, CJ. --- The captioned appeal with the leave of the Court arises out of the judgment of the High Court dated 21.3.2012, whereby Crl. Revision Petition No, 4/2012 is converted into an application under Section 561-A, Cr.P.C. and proceedings initiated under Section 145 Cr.P.C. for attachment of a house are quashed.
2. Necessary facts for disposal of the appeal are that appellant presented an application before the Superintendent of Police Bhimber stating therein that she owns a house in village Barhing. She lives in Karachi. Abdul Waheed s/o Muhammad Akram, Rafique, Muhammad Ateeq sons of Abdul Waheed and- Aftab Ali and Waqas Ali sons of Pervaiz Anjum have occupied the house. They are in illegal possession of the house. They have not vacated the house and are threatening to murder her and other members of the family. On this application, the Police presented Complaint No, 62 on 24.9.2011 in the Court of Sub-Divisional Magistrate First Class Bhimber against both the parties under Sections 107/150 and 145, Cr.P.C. After hearing the parties, the Magistrate passed an order on 28.12.2011 to the effect that a dispute in relation to the ownership of the house is pending in the Civil Court, therefore, till the decision by the Civil Court, the order for attachment of house is passed.
Aftab Ali and Waqas Ali filed a revision petition against the attachment order. The learned Sessions Judge dismissed the revision petition on 27.1.2012 on the ground that civil Court has not issued a stay order in the matter. Feeling aggrieved, Abdul Waheed filed a revision petition against the order of Sessions Judge. The learned single Judge in the High Court on objection raised by the respondent that second revision petition against the order of Sessions Judge is not competent, converted the revision petition into application for quashment of proceedings under Section 561-A, Cr.P.C., accepted the same and quashed the order passed by the Magistrate.
3. Sardar MOHAMMAD AZAM KHAN, advocate, counsel for the appellant, argued that the judgment of the High Court is not maintainable. The Sessions Judge passed the order under revisional jurisdictions against the order of Magistrate First Class. The order passed by the Sessions Judge under revisional jurisdictions cannot be assailed in the High Court in second revision petition. He referred to the cases reported as Zulfiqar All Butt vs. The State [1994 P.Cr.L.J. 2532] and Habibullah Qureshi vs. Farooque & 3 others [1996 MLD 92]. He contended that the house belongs to Pervaiz Anjum. Saleem Akhtar is his wife while Aftab Ali and Waqas Ali are his sons. Saleem Akhtar is also attorney of Pervaiz Anjum, who resides in Karachi for earning livelihood and the appellant has initiated proceedings on his behalf. He defended the order passed by the Magistrate.
In the case reported as Zulfiqar Ali Butt vs. The State [1994 P.Cr.L.J 2532] it was held that under Section 439(4)(b), Cr.P.C., a restriction has been placed on second revision petition but there was no restriction upon the Federal Shariat Court under Article 203(d)(d) of the Constitution of 1973 to entertain second revision petition.
In the case reported as Habibullah Qureshi vs. Farooque & 3 others [1995 MLD 92], it was observed that remedy under Section 561-A, Cr.P.C., can be exercised to serve the ends of justice or to prevent abuse of the process of the Court. The jurisdiction under Section 561-A, Cr.P.C., was not available to a party by way of additional or alternate jurisdiction after exhausting revisional jurisdiction.
4. While controverting the arguments of the counsel for the appellant, Ch. Jehandad Khan, counsel for the respondents, argued that the judgment of the High Court is perfectly legal. The Magistrate First Class and the Sessions Judge passed the order in an arbitrary manner against the clear provisions of law. He argued that the Civil Court is seized with the matter and the stay order is issued by the Court. In presence of stay order of civil Court, the Magistrate couldn't pass any order for attachment of such property, he passed the order in an illegal manner. It was enjoined upon the Sessions Judge to set aside the order under revisional jurisdiction. If the Sessions Court fails to exercise powers vested in it, then the High Court has jurisdiction to quash the orders while exercising powers under Section 561-A, Cr.P.C. The learned counsel forcefully argued that Aftab Ali and Waqas Ali filed civil suits in respect of same house in the Court of Senior Civil Judge Bhimber on 4.11.2011. They alleged that they are in possession of the same house. They sought perpetual injunction against Khalid Hussain and Saleem Akhtar. The Senior Civil Judge ordered for status quo but subsequently after hearing the parties he dismissed the suit on 28.2.2012 under Order VII Rule 11, CPC. The District Judge accepted the appeal and ordered the Trial Court to continue the proceedings vide order dated 10.4.2012. During the hearing of appeal the District Judge issued status quo order. He further argued that in presence of civil proceedings, any order under Section 145, Cr.P.C., for attachment of property cannot be passed. It is an abuse of the process of the Court.
5. After hearing the learned counsel for the parties we felt advised to summon the record of civil suit from the Court of Senior Civil Judge Bhimber in the case titled Aftab Ali & others vs. Khalid Hussain & others, The record has been received, which is being considered.
6. We have heard the learned counsel for the parties and perused the record.
7. It is on the record that Saleem Akhtar is wife of Pervaiz Anjum while Aftab Ali and Waqas Ali are sons of Pervaiz Anjum, who, according to the record of Magistrate, is one of the owners of the house and according to Saleem Akhtar, Pervaiz Anjum is serving in Karachi and Aftab Ali and others, in their absence, after breaking the lock, have entered into the possession of the house. The claim of Saleem Akhtar in the application is not that she was in possession and has been dispossessed. She only claims that she is owner and Aftab Ali and others have entered into the possession of the house. She requested for possession of the house. The SHO of concerned Police Station submitted the complaint before the Magistrate wherein he specifically mentioned that sons of Pervaiz Anjum, who is the owner of the house, have filed civil suit where the date of hearing is 30.11.2011, meaning thereby that prior to filing of complaint before the Magistrate and the order of the Magistrate, civil suit was already pending in the Court.
8. The first question which needs resolution is that whether learned single Judge in the High Court was justified in treating the revision petition as application under Section 561-A, Cr.P.C. when second revision petition was not competent. It is an admitted position that under Section 439(4)
(b), Cr.P.C., second revision petition is not competent in the High Court against the order passed by the Sessions Court under the revisional jurisdiction but at the same time it may be stated that if the Magistrate has acted illegally, without lawful authority and the reasons given by the Sessions Court while agreeing with the Magistrates are not legal and well reasoned, and there is material irregularity in the order. It is an abuse of the process of the Court and to that case the High Court under the powers vested in it under Section 561-A, Cr.P.C., can interfere in the order recorded by the Sessions Court under revisional jurisdiction. At the same time if the order passed by the Sessions Court in revisional jurisdiction is a legal order, the High Court cannot interfere in such order under Section 561-A, Cr.P.C. In the case reported as Punjab Agricultural Development & Supplies Corporation through Managing Director vs. Shukar Ullah & others [PLD 1996 Lahore 215], it was observed that where the revisional jurisdiction is exercised totally illegally or extravagantly and in fanciful manner, then the power under Section 561-A, Cr.P.C., can be exercised, if abuse of the process of the Court is established. It was observed as under:- ''.........There is no cavil with the proposition that section 561-A, Cr.P.C. bestows inherent powers upon a High Court to check abuse of the process of a Court but before bringing into play the powers, fault is to be detected in the order of the Additional Sessions Judge."
The learned single Judge in the High Court correctly exercised powers under Section 561-A, Cr.P.C., and quashed the attachment order, passed by the Magistrate.
9. An important question involved in the case is the filing of civil suit. It is well-settled that if a civil suit in respect of a property is pending in a Court and the application for proceedings under Section 145, Cr.P.C., is filed before the Magistrate and the civil Court has already regulated the possession while issuing stay order, the Magistrate has no power to continue the proceedings. The proposition came under consideration of this Court in the case reported as Muhammad Nazir Khan & 6 others vs. Saltanat Khan & 5 others [PLJ 1997 SC (AJ&K) 146]. This Court while relying upon the judgment of this Court recorded in the case reported as Suleman Khan vs. Abdul Aziz & 33 others [PLJ 1984 SC (AJ&K) 47], observed as under:- "8. It is indeed correct that Section 145 Cr.P.C. is so coached as not to be appreciated easily by the Magistrates performing their functions in far flung backward areas. At a time there used to be divergent views of the High Court of Azad Jammu and Kashmir recorded in different cases under Section 145 Cr.P.C. One view was that the jurisdiction of Magistrate to attach the subject of dispute under Section 145 Cr.P.C. is not excluded even in presence of a recent decree of Civil Court for perpetual injunction or an order regulating the possession passed in terms of ad-interim injunction, upholding the possession of one of the parties to the proceedings whereas the counter view was that in order to avoid conflicting decisions on the same matter proceedings under Section 145 Cr.P.C. should not be allowed when the matter is simultaneously taken to a Civil Court but by now this controversy stands settled by a reported judgment of this Court in a case titled "Suleman Khan vs. Abdul Aziz and 33 others" (PLJ 1984 SC(AJK) 47), wherein it was held at pages 51 and 52 of the report in the following manner:- We have already noticed that under sub-section (4) of Section 145, Cr.P.C. the introduction of the words "if possible" and incorporation of the proviso under sub-section (2) of Section 146, Cr.P.C. clearly reflect that the order of the Magistrate, whether under Sections 145, Cr.P.C. or 146, Cr.P.C., is not only subject to the decision of a competent civil Court, but it also provides that the moment civil Court takes a step to regulate the possession of the subject of dispute by appointment of a receiver, the order of the Magistrate automatically gives way to the order of Civil Court as the Civil Court is vested with power as final arbiter. Therefore, it is wrong to suggest that it is nowhere laid down under Section 145, Cr.P.C. that the Magistrate is divested of his power in presence of civil proceedings or when the possession is regulated by a temporary injunction or in presence of a recent decree for the perpetual injunction. The Magistrate acting under Section 145, Cr.P.C, is under an obligation to respect any recent decision concerning possession of the subject, given by a competent civil Court. In case such a decision is not given due consideration and weight the action of Magistrate shall not only be derogatory to the norms of administration of justice, but it may also culminate in disastrous results. To give importance to the recent decree of the civil Court or an interim order in the terms of appointment of the receiver of issuance of ad interim injunction, is also a question of judicial propriety. Thus the position finally comes to this that the Magistrate is, of course, competent to initiate proceedings under Section 145, Cr.P.C. when he is satisfied from any information that there exists likelihood of breach of the peace concerning the possession of land or water or the boundaries thereof and he is within his jurisdiction to constitute an inquiry in order to determine the question of factum of possession, but the power of the Magistrate is restricted in the manner that he is excluded to advert into scrutiny of the merits or the claims of the parties to a right to possess the subject of dispute. Secondly, when merits or claim to a title or right to possess the subject is recently settled by a competent civil Court the Magistrate shall give effect to such a recent decree concerning the question of possession and shall maintain the possession acquired by either party in the light of such decree and its execution in due course of law. Likewise, the Magistrate shall avoid interference into possession of the subject by having recourse to attachment in presence of an order of competent civil Court of appointment of a receiver of issuance of ad- interim injunction. But mere institution of a civil suit may not necessarily stop the hands of the Magistrate to inquire into the question of possession when other conditions contained under the section are fulfilled."
"The next question pertinent to the proposition is as to what remedy is available to avoid likelihood of breach of the peace in presence of the recent decree of the civil Court concerning the possession or an order regulating the possession for interim period? The proper answer is that when the question of possession of the subject is settled by the decision of a competent Court or its possession is regulated in open of the aforesaid manners, during the pendency of the civil proceedings, on information of likelihood of breach of the peace, the Magistrate is within his power to proceed against the disturbance maker under Section 107, Cr.P.C. It is well admitted that the provisions of Section 107, Cr.P.C. which are general in character, are even attracted in such like cases. Besides that in case of a trespass or forcible dispossession of the rightful owner, the Magistrate is equally competent to proceed against the accused for commission of substantive offence."
In the case reported as "Shah Muhammad vs. Haq Nawaz and others" (PLD 1970 SC 470), the Supreme Court of Pakistan spoke for the relevant proposition at page 481 in the following way:- "The provisions of the two Codes set out above have a material bearing on the question whether a Magistrate can, under section 145 of the Criminal Procedure Code, act in violation of a decree or the terms of an order passed by a civil Court during the trial of a suit. It becomes apparent at once that the proceedings initiated under section 145, Cr.P.C., are subordinate to a decree or order passed by a civil Court in respect of the property in dispute before the Magistrate. The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning `land' or 'water'. These proceedings though concerning the Subject-matter of dispute between the contending parties, do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a civil Court. The orders passed by a Magistrate for attachment of the subject-matter of dispute are therefore of a transitory nature. That is why a Magistrate will not appoint a receiver if the property in dispute is already in the possession of a civil Court through a receiver appointed by it and the receiver appointed by a Magistrate must make over possession to the receiver appointed by a civil Court subsequently. Section 145 therefore proceeds on the premises that the Magistrate will cease to deal with the possession of "land" or "water" in dispute before him as soon as a civil Court is seized with the dispute and has passed a decree declaring the rights of the parties therein or has passed an order regulating possession of the subject-matter of the suit. In such a case, if apprehension of breach of peace prevails, the Magistrate can take action under sections 107 and 151, Cr.P.C., and bind down the party threatening to act in violation of the decree of the Court or the terms of an interim order appointing a receiver or requiring the parties to maintain status quo. A contrary position will indeed lead to anomalous results."
In the case reported as "Mehr Muhammad Sarwar and others vs. The State and 2 others" (PLJ .1985 SC 540), the Supreme Court of Pakistan observed at page 542 as under: - "It requires to be mentioned that in an inquiry under section 145, Cr.P.C. all that a Magistrate is ultimately empowered to do is to regulate the possession of the property in dispute for the time being, so that the apprehended breach of peace is averted. But as held by this Court in Shah Muhammad vs. Hag Nawaz and another (PLD 1970 SC 470) where the possession of the same property has been regulated by a civil Court, even through a temporary injunction, the manner falls outside the jurisdiction of the learned Magistrate under section 145, Cr.P.C."
10. It was concluded in para 9 as under:- "9. From the case law cited above, it becomes abundantly clear that in order to avoid conflicting decisions on the same matter proceedings under Section 145 Cr.P.C. should not be allowed when the matter is simultaneously taken to a civil Court. Another substantial reason is that ultimately the decision of the civil Court is to prevail either with regard to .the possession or right to possess certain property. Thus in presence of both the litigations, the civil litigation should be resorted to wherein the rights of parties are conclusively resolved. The learned counsel for respondents also relied on the reported case Suleman Khan vs. Abdul Aziz and 3 others which is reported in N.L.R. 1984 Criminal page 9 which we have already discussed and the same is reported in PLJ 1984 SC (AJK) at page 47."
11. Same view has been reiterated in a recent judgment of this Court delivered in the case reported as Muhammad Khurshid Khan vs. Muhammad Rahim Khan & 2 others [2012 SCR 156].
12. It is clear that proceedings under Section 145, Cr.P.C., are not maintainable in presence of a civil suit where the civil Court has already regulated the possession.
13. The record reveals that Aftab Ali, one of the respondents, filed a civil suit on 4.8.2011. Initially it was dismissed on 31.10.2011. He filed another suit on 4.11.2011. The Senior Civil Judge issued interim injunction on the same day. The Sub-Divisional Magistrate passed the order for attachment of house on 28.12.2011 whereby while admitting that civil suit is pending in the Court, he passed the order for attachment of the house. From the record of civil Court it is clear that on the date when the Magistrate passed attachment order, the stay order for maintaining status quo was already in the field. Aftab Ali has alleged in the suit that he is in possession of the house. The civil Court issued stay order for maintaining the status quo. The Magistrate had no jurisdiction to issue the attachment order. The Magistrate has acted in an illegal manner and without authority. In the circumstances it was enjoined upon the Sessions Judge to vacate the order of attachment passed by the Magistrate. It was an abuse of the process of the Court. The High Court was justified in exercising powers under Section 561-A, Cr.P.C. for quashing the proceedings initiated under Section 145, Cr.P.C.
The result of above discussion is that finding no force in this appeal, it is hereby dismissed.