' MUHAMMAD SAJID MEHMOOD SETHI, J. --Relevant facts forming background for filing this writ petition are that petitioner and others were in possession of land in dispute and a civil suit titled "Haji Muhammad and others v. Province of Punjab and others" was pending in the Court of learned Civil Judge, Layyah. The respondent No. 3/SHO prepared a Qalandra u/s. 145, Cr.P.C. That there was dispute between petitioner and others and the respondents No. 4 to 10, regarding the agricultural land. Respondent No. 3 submitted said Qalandra in the Court of respondent No. 2 and possession of land was handed over to Syed Allah Wasaya Shah and on the submission of Qalandra, respondent No. 2 held that there was civil litigation between the parties and the present respondents were not present on the final date of hearing i.e. 02.05.2005 and learned respondent No. 2 dismissed the Qalandra. Thereafter, on 23.09.2006, respondent No. 4 submitted an application before respondent No. 2 for getting possession of the disputed land, which was misread and on 11.04.2007 respondent No. 2 passed order that the possession of land be handed over to respondent No.
4. Against that order, petitioner filed a revision petition before learned respondent No. 1, which was dismissed vide order dated 17.04.2007. Now, through instant writ petition, petitioner has challenged both the orders of respondents No. 1 & 2, dated 11.04.2007 and 17.04.2007 respectively, and has made the foiowing prayer:--- "Under the circumstances it is most respectfully prayed that this writ petition may kindly be accepted and the order passed by respondent No. 1 & 2 may kindly be set aside and the possession of the land be handed over to the petitioner as he was in possession of the land prior to the proceeding U/S. 145, Cr.P.C. Any other relief which this Hon'ble Court deems fit and proper may also be awarded to the petitioner in the interest of justice."
2. Learned counsel for the petitioner contends that learned Magistrate while delivering possession to respondent No. 4 had wrongly held that the civil litigation between the parties stood terminated.
Adds that the inhabitants of the locality had sworn the affidavits that the possession of the dispute property had been taken from the petitioner. Further submits that no proceedings under Section 145, Cr.P.C. Could be initiated when civil litigation is pending. Adds that while passing the impugned orders the learned Courts below did not apply their judicial mind and had illegally delivered the possession of the disputed land to respondent No. 4 without even recording any evidence and giving petitioner any opportunity of being heard. His precise case is that the dispute as to title is to be determined and adjudicated upon by a Civil Court of competent jurisdiction and in terms of Section 145, Cr.P.C. The person who was in possession at the time of initiation of the said proceedings, be put into possession nor to any other person. Since the petitioner was in possession the petitioner was entitled to retain it which has been illegally disturbed in illegal and unlawful manner and given to respondent No. 4.
3. On the other hand, learned counsel for the respondent submits that respondent No. 4 is already in -possession of the property and the petitioner has nothing to do with it. He stated at the bar that the civil suit filed by the petitioner had already been dismissed and there is no litigation pending.
The petitioner has no right and interest in the property in dispute, therefore, the instant writ petition is liable to be dismissed in the interest of justice.
4. Heard.
5. The provisions of Section 145, Cr.P.C. Clearly envisage apprehension of breach of peace as a jurisdictional requirement. The issue of possession of a party could only be gone into by a Magistrate after his jurisdictional requirement is satisfied. The purpose of this Section is to prevent imminent apprehension of breach of peace over the immovable property. This provision does not authorize a Magistrate to exercise jurisdiction in mere existence of a dispute relating to an immovable property. The Magistrate on receipt of application from a party has to pass order under Section 145(1), Cr.P.C. He is required to call the report from the police and after perusal of the same, if he is satisfied from such report or from any other information that there exists a dispute between the parties in respect of the land, which is likely to cause breach of peace, he may pass interim order in terms of Section 145(4), Cr.P.C. And proceed to record evidence of the parties to determine which party was in possession of the property in dispute prior to its dispossession.
6. In the proceedings under Section 145, Cr.P.C., the Magistrate has to take cognizance on an application/complaint by a party/or report by the police on his satisfaction of imminent danger of breach of peace, and if there is sufficient material, he may pass preliminary orders in terms of Section 145(4), Cr.P.C., in case, however, if the material is not sufficient requiring him to pass an interim order, he may hold inquiry as provided under Section 145, Cr.P.C. By examining the parties and pass final order restoring possession to a party which was dispossessed two months prior to its wrongful dispossession under Section 145(6), Cr.P.C. And or in case, if after inquiry, the material brought on record is not sufficient to record a finding over possession, he may order attachment of the property in terms of Section 146(1), Cr.P.C. The Section 145, Cr.P.C. Does not curtail the powers of the Magistrate to pass final order under Section 145(6), Cr.P.C. After holding inquiry, in case of his failure to pass preliminary order under Section 145(4), Cr.P.C. Within two months. The only restriction imposed is that the party to whom possession is restored must have been dispossessed within two months of the complaint. The Magistrate while conducting inquiry is not competent to decide either title of the property or its right to possession. Section 145, Cr.P.C. Only empowers the Magistrate to make enquiry under Section 145, Cr.P.C. To regulate possession of the property in dispute for the time being to avert apprehension of breach of peace. Reference can be made to Mukhtar Ahmad v. Haji Muhammad Saleem (2013 SCM R 357)
7. In the instant case, learned Magistrate with the consent of the parties appointed "Supardar" and handed over the possession of the disputed plot to respondent No. 4 till the decision of the suit pending regarding subject-matter. Both the Courts below heard the parties and came to the conclusion that the civil litigation regarding the subject-matter stood terminated in favour of Muhammad Ismail respondent No. 4, which fact has not been disputed by learned counsel for the petitioner. The petitioner-has failed to produce any document showing his right, title and interest in the property in dispute. The possession has already been delivered to respondent No. 4 who is the owner of the property.
8. Writ is a discretionary relief and it is to be exercised to meet the ends of justice and not injustice.
It is well established that discretionary relief cannot be granted to a party even if order of Courts below may be defective due to any technical reason as held by the Hon'ble Supreme Court of Pakistan in the cases reported as follows:---
(I) Messrs Best Buy Computers, Lahore and another v. Director, Intelligence & Investigation (Customs & Excise), Lahore and others (2009 SCM R 19).
(ii) Multan Electric Power Company, Ltd. Through Chief Executive and another v. Muhammad Ashiq and others (PLD 2006 SC 328)
(iii) Malik Muhammad Nawaz v. Municipal Committee, Pattoki and others (2003 SCM R 1191)
(iv) Muhammad Sharif through Legal Heirs and 4 others v. Sultan Hamayun and others (2003 SCM R 1221)
(v) Rana Muhammad Arshad v. Additional Commissioner (Revenue), Multan Division' and others (1998 SCM R 1462)
(vi) Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351).
9. In the case of Dr. S. Muhammad Zafar Bukhari, supra, the Hon'ble Supreme Court while discussing the concept of discretionary relief in exercise of writ jurisdiction laid down the following principles of law.
"A study of various cases decided by this Court would show that before a person can be permitted to invoke the discretionary powers of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party rather it cures a manifest illegality then the extraordinary jurisdiction ought not be allowed to be invoked PLD 1973 SC 236(258); likewise in the case of Begum Shamsun Nisa v. Said Akbar Abbasi and another, PLD 1982 SC 413, it was held that the High Court in exercise of its discretionary jurisdiction is not bound to interfere in all circumstances and it would have been proper exercise of its discretion, if it had not interfered with the order of the Chief Settlement Commissioner in that case even if it felt that the order of the Chief Settlement Commissioner whereby he rendered the order of the Settlement Commissioner as null and void, was not strictly legal". Again this Court refused to intervene where the grant of relief would amount to retention of ill-gotten gains or would lead to injustice or aiding the injustice. See Gul Muhammad v. Addl. Settlement Commissioner, 1985 SCM R 491; Nazim Ali, etc. v. Mustafa Ali, etc., 1981 SCM R 231; Wali Muhammad and others v. Sheikh Muhammad and others, PLD 1974 SC 106; Meraj Din v. Director, Health Services, 1969 SCM R 4; Tufail Muhammad v. Muhammad Ziaullah Khan, PLD 1965 SC 269; Azmat Ali v. Chief Settlement and Rehabilitation Commissioner, PLD 1964 SC 260. The object of the superior Courts while exercising its discretionary jurisdiction is to foster justice, preserve rights and to right a wrong and keeping this object in view, it may in equity set aside or annul a void judgment or enjoin enforcement by refusing to intervene in the circumstances of the case before it."
10. In view of aforesaid discussion, this writ petition has no merit and is, therefore, dismissed.