MUHAMMAD TARIQ ABBASI J.---Through the instant petition, the orders dated 6.7.2013 and 19.11.2013, respectively passed by the learned Judicial Magistrate and learned Additional Sessions Judge, Chakwal have been called in question.
2. Through the above mentioned earlier order dated 6.7.2013, in the proceedings, initiated by the Police under Section 145 of Cr.P.C., to seal a mosque, sealing of it has been ordered. Whereas, through the above said lateral order dated 19.11.2013, a revision petition filed by the petitioners has been dismissed.
3. The facts as per record are that the petitioners' party built a mosque, having the name "Jamia Masjid Toheed Muslim" at Mohallah Madina Town, Chakwal. The inhabitants of the locality raised objections over establishment of the said mosque. The matter went to the Police. The Police carried on the proceedings under Section 145 of Cr.P.C. And recommended that the mosque should be sealed. When the said proceedings were filed in the court of learned Judicial Magistrate, Chakwal, the request of the Police was accepted and sealing of the mosque was directed, through order dated 6.7.2013, in the following words:-- "While perusing the record it reveals that Anjum Afzal and Shahzad Afzal constructed a mosque at Mohallah Madina Town Chakwal, they belong to Qadiani Sect' and Haji Bostan Khan and Haq Nawaz party at Mohallah Madina Town have raised objections for registration of mosque. So, there is apprehension at Mohallah Madina Town due to registration of mosque of Qadiani. In this situation it is appropriate property/mosque be sealed till further orders to maintain peace and tranquility in the society of Mohallah Madina Town Chakwal City. SHO/Inspector of P.S. City Chakwal is directed to comply the order of this court forthwith. To come up for further proceedings on 07 . 09 .2013 . "
4. The petitioners had challenged the above mentioned order, before the learned Sessions Court, Chakwal in shape of a revision petition, which was entrusted to the learned Additional Sessions Judge, Chakwal, from where the order dated 19.11.2013 was pronounced and the revision petition was dismissed.
5. Consequently, the instant petition has been preferred, with the contention and the grounds that the petitioners being Muslims had built the mosque for the worship of Sunni Muslims but with mala fide, the proceedings under Section 145 of Cr.P.C. Were carried on, with the contention that the petitioners belonged to Qadiani sect and the mosque was also of the said sect, hence not permitted; that the learned Judicial Magistrate in a blind manner, without any inquiry or probe had acted as a tool at the hands of the Police and while holding the petitioners and the mosque to be of Qadiani sect had ordered to seal it; that when the petitioners had brought the matter in shape of a revision petition before the learned Sessions Court, without considering the attending .Facts and circumstances, in a slipshod and mechanical manner, a stamp of confirmation was affixed at the above mentioned unjustified and unseasoned order of the learned Judicial Magistrate and the revision had been dismissed and that the above mentioned orders of both the learned courts below being unreasonable, unjustifiable and against all the norms of natural justice and law on the subject are not sustainable.
6. The learned counsel for the petitioners has advanced his arguments in the above mentioned lines and the grounds. The learned ADPP has not seriously opposed the petition. Whereas the learned private counsel for Muhammad Nawaz etc., the inhabitants of the locality, who are not party in the petition, has seriously objected and opposed the petition in hand.
7. Arguments heard and record perused.
8. The proceedings under Section 145 of Cr.P.C. Are meant for special purpose, regarding particular property. For convenience, the said provision is reproduced herein below:-- "145. Procedure where dispute concerning land, etc., is likely to cause breach of peace.---(1)
Whenever a [Magistrate of the 1st Class] is satisfied from a police-report or other information that dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute.
(2). For the purposes of this section the expression "land or water" Includes buildings, markets, fisheries, crops or other produce of land, and The rents or profits of any such property.
(3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) Inquiry as to possession. The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: ' Provided that, if it appears to the Magistrate that any party' has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: ' Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed,. And in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (I) shall be final.
(6) Party in possession to retain possession until legally evicted. If the Magistrate decides that one of the parties was or should under the first proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed.
(7) When any party to any such proceedings dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceedings is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the 'subject of dispute in a proceedings under this section pending before him is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale proceeds thereof as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107. "
9. From the above mentioned provision, it is clear that dispute endangering breach of peace must be regarding any land or water, which has been explained to be a building, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
10. In the situation in hand, the mosque does not fall in any of the above mentioned categories.
Furthermore, for passing an order under Section 145 of Cr.P.C., a Magistrate should mention the reasons for passing the order. But as highlighted above, the Judicial Magistrate has directed for seal of the mosque, on the sole ground that it belongs to Qadiani sect. The said reason has been found totally false and incorrect, because the mosque has been built tor worship of `Sunni/Hanfi sect.' Neither the petitioners are Qadiani nor the mosque belongs to the said sect or having any concern with the said class. This fact has not only been observed by the learned revision court, but also admitted by the above named private learned counsel, appearing on behalf of Muhammad Nawaz etc.
11. Therefore, the above mentioned stance narrated by the learned Judicial Magistrate that as the petitioners as well as the mosque is for Qadiani sect, hence its establishment could not be permitted, is totally unjustified and unreasonable.
12. It is very strange that on the basis of unjustified and unreasonable order, the Judicial Magistrate has directed seal of the mosque, for worship and when the matter went to the learned Additional Sessions Judge, in shape of a revision petition, again the attending facts and circumstances were not realized and the order of the Judicial Magistrate was maintained. The learned Judicial Magistrate as well as the learned Additional Sessions Judge have failed to consider that they were going to seal the mosque, which admittedly is "House of Allah Almighty", hence one should not dare to seal such a House and deprive the concerned from worship according to their sect. In this regard, reference can be made to the cases reported as Abdul Majeed v. The State and others (1968 PCr.LJ 659) and Abdul Razzaq v. The State etc. (2013 PCr.LJ 718). The relevant portion of the above mentioned citation (1968 PCr.LJ 659) reads as under:- "The house of God cannot be possessed by any individual. It vests in God and as such cannot be sealed under Section 145, Cr.P.C. Even a prohibitory order under Section 144, Cr.P.C. Was held to be illegal and undesirable by a Division Bench of the Calcutta High Court. That order is also based on the principle that no Muslim can be prohibited from saying his prayers in a mosque. The entire case law in the Indo-Pak sub-continent regarding the use of mosque is also on the same line that any Muslim can go and say his prayers in a mosque, of course without disturbing the congregation even if the congregation is led by another sect. Surely, two congregations cannot be held in a mosque and nobody can claim to introduce a congregation of his own choice in the mosque. It is the right of the Mutwali to make arrangements for the congregation and the control in the mosque.
However, if there is any dispute regarding the use of the mosque and there exists an apprehension of breach of peace, in such a case the Magistrate under Section 147 Cr.P.C. Can only prohibit interference with such a user. On the other hand if the dispute is regarding the control and management of a mosque and there is an apprehension of breach of peace, a Criminal Court under Section 145, Cr.P.C., cannot decide such a dispute. "
13. The Constitution of the Islamic Republic of Pakistan, 1973 also gives a right to every citizen to profess, practice and propagate his religion. In this regard, the relevant Article is 20, which is as under:-- "20. Freedom to profess religion and to manage religious institutions-- Subject to law, public order and morality--
(a) every citizen shall have the right to profess, practice and propagate his religion; and
(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.
14. As a result of the above discussion, the instant petition is accepted, the impugned orders dated 6.7.2013 and 19.11.2013 are set aside and the proceedings under Section 145 of Cr.P.C. Are quashed/dropped.