MUHAMMAD IJAZ KHAN, J. Through the instant quashment petition, petitioner seeks quashment of the order and judgment of the learned Additional Sessions Judge/Izafi Zilla Qazi, Dir Lower at Chakdara dated 14.07.2017, whereby he accepted the revision petition of respondent No.1 namely Hazrat Gul and thereby set aside the order of the Worthy Assistant Commissioner, Adenzai at Chakdara dated 28.07.2016, who vide the same had dismissed the complaint filed by the respondent No. 1 being not maintainable.
2. For the purpose of better understanding and brevity, the respondent No. 1, who brought the instant complaint under section 145, Cr.P.C. hereinafter is to be referred as First Party, respondents Nos. 2 to 13 against whom the instant complaint was initially brought by the First Party are to be referred as Second Party and the present petitioner, who was not arrayed as a party in the complaint but was later on impleaded through his own application is to be referred as Third Party.
3. Precisely the facts of the case are that the First Party filed a complaint under section 145, Cr.P.C. stating therein that he (First Party) and the respondents Nos. 2 to 13 (Second Party) are belonging to the same village namely Tiso Bala( ) , where the First Party is the owner to the extent of 03 Pachai (local unit of measurement of land) of land/shuwara/mountain being a purchased owner, which he has purchased from Afghanan-e- Ouch( whereas the whole land/shuwaral/mountain is measuring as 72 Pachai ( ) and that the said land/shuwara/mountain is their joint property an everyowner is in possession to the extent of his share, however, the Second Party (i.e. respondents Nos. 2 to 13) are interfering in his lawful possession as they have started breaking the stones and are busy in plaining the area and in the process, they are also cutting the trees standing over the disputed property and as such through this exercise, they are trying their level best to take possession of the property which is in possession of the First Party and thus this controversy may lead to a blood feud and is also causing the breach of peace.
4. When the aforesaid complaint was received by the Worthy Additional Assistant Commissioner, he asked the local SHO for submitting his report and the same was accordingly submitted by him along with a site plan, which stipulates that the area under dispute between the two parties is a huge area and the whole land/shuwara/mountain has been shown as a disputed property and as such he recommended for attachment of the same. In view of the report of IHC, the Worthy Additional Assistant Commissioner passed a preliminary order, whereby he attached the disputed property vide order dated 13.04.2015.
5. It merits to mention here that the Third Party (present petitioner namely Gul Zada) was not made party in the present complaint, however, after passing of the preliminary order dated 13.04.2015, he got knowledge of the instant proceedings pending before the Additional Assistant Commissioner, therefore he rushed to the said Court and submitted an application for his impleadment in the complaint filed by the First Party, which was duly replied by both the parties, where both of them are unanimous in their stances qua the joint ownership of both the parties, whereas the ownership- in-possession of the petitioner/Third Party was denied. It is interesting to note that even the Second Party is not claiming his possession rather he is following the steps of First Party by stating that the disputed land/shuwara/mountain is their joint ownership-in-possession. The learned Additional Assistant Commissioner vide order dated 18.03.2016 allowed the application of the Third Party for his impleadment in the aforesaid complaint.
6. After his impleadment, the present petitioner/Third Party filed an application for summary dismissal of the complaint being not maintainable due to its nature of being a civil dispute and a dispute between the co-owners regarding their respective shares. To this application, both the parties submitted their replies, however, the said application was allowed by the Worthy Assistant Commissioner vide order and judgment dated 28.07.2016 and thereafter dismissed the complaint filed by the First Party terming the same as a dispute between the co-owners over their respective shares as well as on the ground that the same has been filed by the First and Second Party with intention against the Third Party. This order of the Worthy Assistant Commissioner was challenged by the First Party before the learned Sessions Judge/Zilla Qazi, Dir Lower at Timergara in a revision petition, which was allowed vide the impugned order and judgment dated 14.07.2017 and the complaint was remanded back to the Worthy Assistant Commissioner for proceeding with the same in accordance with law. This order and judgment has now been challenged by the Third Party, then respondent No. 13, before this Court through the instant quashment petition, however, it may be noted that the Second Party for reasons best known to them, have not challenged the aforesaid order and judgment before this Court.
7. Arguments of learned counsel for the parties were heard in considerable detail and the record perused with their able assistance in a daylong arguments.
8. In this case, there are four questions which are to be determined by this Court. The same are as under:--
1. Whether the language of the complaint filed by the First Party and its reply by the Second Party does or does not constitute a civil dispute regarding the partition of their respective shares?
2. Whether in absence of any claim qua the exclusive possession of the disputed property, a complaint under section 145, Cr.P.C. would be maintainable?
34 Whether in absence of existence of a dispute between the parties which may likely to cause breach of peace, a complaint under section 145, Cr.P.C. would be maintainable?
4. Whether the complaint has been filed in good-faith or with ill-intention and as to whether the two parties through the instant complaint have joined hands against the present petitioner and as an attempt to nullify the already proceedings culminated in favour of the present petitioner?
9. Determination of Question (1): Whether the language of the complaint filed by the First Party and its reply by the Second Party does or does not constitute a civil dispute regarding the partition of their respective shares?
If one perused the complaint of the First Party on the touchstone of the above criteria, it may be noted that it speaks that the disputed land/shuwara/mountain is a huge area comprising of millions of feet and as per the local unit, it is measured as 72 Pachai of land out of which admittedly the First Party claims his ownership to the extent of 03 Pachai of land, whereas the Second Party claims their ownership of 69 Pachai of land and the ownership-in-possession of the present petitioner/Third Party as per his assertion has been purposely not brought on record and thus the prerequisite conditions for maintaining proceedings under section 145, Cr.P.C. are not spelling out from the same rather the same speaks of a suit for possession through partition.
10. The aforesaid lacunas/flaws in the complaint which glean from the plain reading of it are further substantiated from the reply submitted by the Second Party as they too follow the steps of the First Party by stating that they are owners of the remaining 69 Pachai of land and acknowledging the ownership of the First Party to the extent of 03 Pachai of land with a open heart and as such both the parties are admitting that it is a joint property between the two rival parties.
11. Determination of question (2): Whether in absence of any claim qua the exclusive possession of the disputed property, a complaint under section 145, Cr.P.C. would be maintainable?
If one sees the above stated stances of both the parties against each other, then it is undisputedly established that they are not claiming any "exclusive possession" against each other. The complaint itself is a vague, evasive and standing in vacuum regarding the specific and perfect portion of the land which is in "possession" of the First Party and which has been interfered with by the Second Party and as against this, it appears that both the parties through the instant complaint under section 145, Cr.P.C. are trying to ascertain their respective portions/ shares of land.
It may be noted that the pray made by the respondent No. 1 in his complaint is of much relevance and speaks of the hidden intention of the complainant, which is reproduced below:-- The aforesaid pray manifests that the respondent No. 1/complainant wants that his share may be separated and may be handed over to him, therefore the complaint filed by him falls short of the legal requirements for maintaining or proceeding with the same. The question of title or claiming share or separation of share could not be determined in proceedings under section 145, Cr.P.C. and thus, this aspect of the case was rightly appreciated by the Worthy Assistant Commissioner. In a case of this jurisdiction titled Mst. Rifat Rana v. Rashid Mahmood reported as PLD 2019 Peshawar 230, it was held that proceedings under section 145, Cr.P.C. are meant to avoid breach of peace and in no way amounts to be decided after discussing a title dispute or a dispute of restoration of possession.
12. As stated above that proceedings under section 145, Cr.P.C. would only be maintainable if the two rival parties claim their exclusive possession without having any interest or care of opposite party and such dispute is of such a nature that it has either created a law and order situation or the same is likely to create the breach of peace, however, in the present case, the contents of the complaint filed by the First Party and its reply by the Second Party would manifestly show that both the parties appear to be very friendly as" they are accepting the ownership and possession of each other over the disputed property which is comprising of a huge area. It also manifests that either of the party has not claimed or asserted their possession on any of the specific portion of the disputed property by describing them through boundaries or any other mode of specification and as such the claims of both the parties as per the available material are standing in vacuum. It may be reiterated that nothing is available on file to show that the said dispute has either already caused breach of peace or is likely to create the chance of breach of peace as both of them admit the possession of each other with open heart since long without any incident of any apprehension of law and order situation. In the case of Saleem-ur-Rehman v. Faqir Hussain and others reported as 2004 SCMR 667, the Hon'ble Apex Court has held that the question of entitlement of land is not a matter of consideration before a Magistrate while exercising jurisdiction under section 145, Cr.P.C.
Such question is always to be decided by a civil Court. A criminal Court is only supposed to determine the factum of actual physical possession on the crucial dates.
13. It may also be noted that in the present case, both the parties have not come forward to claim possession of any specific portion of the disputed land and as such the complaint filed by the First Party lacks the pre-requisite conditions for maintaining a complaint under section 145, Cr.P.C. In the case of Ghulam Maseih alias Gaman and another v. Ch. Abdur Rehman and 3 others reported as 1973 PCr.LJ 439, it was held that the respondent/vendee could not prove his actual physical possession of any specific Khasra number out of the entire land shown to have been passed to him and as such, the respondent at the best could be a co-sharer with the other heirs of such property.
It was also held that proceedings under section 145, Cr.P.C. are not applicable to the case of parties who are in joint possession of the property. Similarly, in the case of Sultan Room and 6 others v.
Bakht Karam and another reported as 2010 MLD 1669, it was held that when one of the party was in possession of the joint property, then the recourse for the other party would not be under section 145, Cr.P.C. as it appeared from the main complaint under section 145, Cr.P.C. that one party in the complaint has admitted the possession of the other party. Exercise of jurisdiction by the Magistrate in such circumstances would amount to unlawful exercise of jurisdiction and continuation of such proceedings would certainly amount to abuse of the process of Court.
14. As discussed above that none of the parties who were before the Magistrate except the present petitioner who was claiming exclusive possession against each other as the complaint itself and reply to the same speaks of their compromising position. In the case of Abdus Salam Meaji and others v. Abdul Kadir Bepari reported as PLD 1967 Dacca 715, it was held that Section 145, Cr.P.C. contemplates dispute between two parties each claiming exclusive possession against other and opposing group of partners cannot claim exclusive possession of such property and as such proceedings under section 145, Cr.P.C. are not competent, however, if the Magistrate deems necessary, can draw up proceedings under Section 144 in such case. It was also held that the property in question is the subject-matter of a partnership business, therefore, in law and in-fact, the property is in possession of all the partners. This proceeding was instituted at the instance of the 1st party opposite-party in this petition. I asked the learned Advocate for the opposite-party to point out from the materials before me that exclusive possession was claimed by him. He failed to do so. The position therefore, is that neither the petitioner nor the opposite-party claims or, can have exclusive possession. That being so, a proceeding under section 145 is misconceived and the impugned order must be set aside. Similarly, the Calcutta High Court in the case of Tarujan Bibee v. Asamuddi Bepari and others (4 CWN 426) has held that in this case the Magistrate seems to have found that both parties are in possession, and therefore this was not a case in which he was competent to make an order under section 145. Section 145 seems to contemplate a dispute between two parties each of which claims to hold possession as against the other. The last part of the order is moreover manifestly bad but inasmuch as the first part has also been declared to be bad, the whole of the order is set aside.
15. Determination of question (3): Whether in absence of existence of a dispute between the parties which may likely to cause breach of peace, a complaint under section 145, Cr.P.C. would be maintainable?
The First Party has not stated a single word in his complaint with respect to any past history or any active dispute between the two parties, which may justify the existence of apprehension of the breach of peach due to the said dispute and as such in absence of a dispute between the parties over the possession of the subject property would take such controversy from the domain of Magistrate who is seized of a complaint under section 145, Cr.P.C. As stated above that the dispute as find mentioned in Section 145, Cr.P.C. should be of such a nature, which may likely to cause breach of peace and in absence of such apprehension of breach of peace, the Magistrate would lack the jurisdiction to entertain the proceedings. In the present case, both the parties appear to be in friendly terms as they are accepting each other ownership-in-possession over the disputed property. In the case of Mukhtiar Ahmad and others v. Hail Muhammad Saleem and another reported as 2013 SCMR 357, the Hon'ble Apex Court has held that provision of Section 145, Cr.P.C. clearly envisages the apprehension of breach of peace as a jurisdictional requirement, issue of possession of a party could only be gone into by a Magistrate after his jurisdictional requirement is satisfied. It was further held that Section 145, Cr.P.C. did not authorize a Magistrate to exercise jurisdiction on mere existence of a dispute relating to an immovable property as the purpose of Section 145, Cr.P.C. was to prevent imminent apprehension of breach of peace over the immovable or movable property. In the case of Municipal Committee, Kohat v. Mst. Piari reported as AIR 1947 Peshawar 8, it was held that it appears from the order of the trial Court that though the parties were at issue so far as the question of the apprehension of the breach of peace is concerned, he gave no finding on it. The mere existence of a dispute between the parties does not justify the exercise of jurisdiction conferred by section 145, Criminal P.C. on the Criminal Courts. The only justification for an order by a Criminal Court under section 145, Criminal P.C., is the danger to the public peace. The absence of any finding to the effect that there was any such apprehension vitiated the order. The settlement of disputes relating to property which are not likely to lead to a breach of the peace is within the exclusive jurisdiction of the Civil Courts. The jurisdiction of the Criminal Court cannot be invoked except on the ground of the likelihood of a breach of the peace.
Similarly, in the case of Hail Shamsuddin Ismail and others v. The State and others reported as PLD 1969 Karachi 515, it was held that the learned Sub-Divisional Magistrate, Nazimabad failed to appreciate the policy of law contained in section 145(1), Criminal Procedure Code inasmuch as before entering upon his jurisdiction he was required to be satisfied from a police-report or other information that a dispute", likely to cause the breach of the peace exists or existed. This was a condition precedent to the exercise of his said jurisdiction whereafter alone he could competently make an order in writing stating the ground of his being so satisfied and requiring the parties to the dispute to attend his Court on specified date. By going through the complaint of respondents 2 and 3 it was noted that it nowhere alleged that any; dispute likely to cause the breach of the peace exists or had existed and consequently it must be held that the learned Sub-Divisional Magistrate could not take cognizance of case nor could he pass the impugned order under section 145(4), Criminal Procedure Code. This position would not alter the least even if allegations of this nature were made in a complaint but not supported by any evidence as required by subsection (4) of section 145, Criminal Procedure Code or admitted by the opposite-party. Admittedly no evidence was produced before the learned Magistrate to show that either a dispute likely to cause the breach of the peace existed or that the applicants had forcibly trespassed into the Mill and taken its possession. In this view obviously the learned Sub-Divisional Magistrate exceeded his jurisdiction in passing the impugned order. In the case of Qazi Gran v. Muhammad Jan and State reported as PLD 1996 SC 541, it was held that Section 145, Cr.P.C. deals with the procedure where dispute concerning immovable property is likely to cause breach of peace. It does not suffice for proceedings under this section that there should be a dispute but it is necessary also that there should be a dispute likely to cause a breach of peace. The primary object of provision is the prevention of breach of public peace arising in respect of dispute relating to immovable property.
The settlement of dispute relating to property which is not likely to lead to a breach of peace is within the exclusive jurisdiction of the civil court. If there was/is no imminent danger to the public peace, the magistrate need not take cognizance of an application under section 145, Cr.P.C. and also need not determined the factum of actual physical possession of the disputed property/ land.
It was also held in the case of Shamshamir Khan v. The State and 6 others reported as PLD 1999 Peshawar 70, that the dispute between the parties being totally of civil nature, could not be made a ground for proceedings under section 145, Cr.P.C. and such proceedings would mean nothing but to harass the petitioner. The primary object and scope of section 145, Cr.P.C. is the prevention of breach of public peace arising in respect of dispute relating to immovable property. Settlement of dispute relating to property, which is not likely to lead to a breach of peace is within the exclusive jurisdiction of Civil Court. Where there is no imminent danger, as in this case, to the public peace, Magistrate need not take cognizance of an application under section 145, Cr.P.C. The record of the case does not suggest any imminent danger of peace necessitating continuation of proceedings under section 145, Cr.P.C. In this case, the proceedings remained pending for a long time but there was no breach of peace. Section 145, Cr.P.C. deals with the procedure where dispute concerning immovable property is likely to cause breach of peace. It does not suffice for proceedings under this section that there should be a dispute but it is necessary also that there should be a dispute likely to cause a breach of peace. In the case of Malik Manzoor Elahi v. Lala Bishambar Dass and another reported as PLD 1964 Supreme Court 137, the Hon'ble Apex Court has held that the provisions of section 145 read as a whole clearly indicate that there should be a continuing danger of a breach of peace till the time the final order is made. The use of the word 'exists' in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of this section being the maintenance of public peace and the prevention of breaches thereof it would follow that where there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the summary procedure provided by this section is no longer called for and should be put an end to.
Similarly, this Court in the case of Abdur Razzaq and 3 others v. The State and 2 others reported as PLD 2004 Peshawar 87, has also held that it is by now well settled that jurisdiction of the criminal Court under section 145, Cr.P.C. can only be invoked on the ground of likelihood of breach of peace and for such purpose the Court intending to take cognizance of the matter must consider objectively the facts and circumstances of the case and to satisfy itself whether likelihood of breach of peace exists or not. The Hon'ble Apex Court in the case of Chaudhary Munir v. Mst.
Surriya and others reported as PLD 2007 Supreme Court 189, has held that there is no cavil with the proposition that the prime object of the proceedings under section 145, Cr.P.C. is to prevent a breach of peace and to maintain status quo till the controversy is decided by the civil Court of competent jurisdiction. The purpose of proceedings under section 145, Cr.P.C. is to meet an emergent situation in order to maintain peace and further to enable the parties to set the controversy at naught through civil court qua the title or claim of the property in dispute. It is mandatory requirement of section 145, Cr.P.C. that there must not only a dispute but it is essential that a dispute is likely to cause breach of peace. In the case of Husein Ali J. Merchant v. The State and 2 others reported as 2003 YLR 1742, it was held that the applicant is not residing at the alleged disputed property although the applicant has possession of one room in the said house. At present there is no material that any apprehension of breach of peace arising between the parties. The provisions of section 145, Cr.P.C. is designed to meet an emergent situation only pausing threat to the peace and cannot be used for settling the rights of the parties on their claim of title.
16. Determination of question (4): Whether the complaint has been filed in good-faith or with ill-intention and as to whether the two parties through the instant complaint have joined hands against the present petitioner and as an attempt to nullify the already proceedings culminated in favour of the present petitioner?
Now to address the fourth question that the proceedings have been initiated by the First Party against the Second Party with the and mala fide, where he did not implead the present petitioner as a party as the record which is to be highlighted would show that much before filing of the instant complaint, proceedings initiated under section 145, Cr.P.C. by the present petitioner have been culminated into his successful delivery of possession. The record appended with the instant quashment petition would show that earlier an FIR bearing No. 261 dated 16.07.2011 under sections 506/148/149/427, P.P.C. of Police Station Ouch, District Dir Lower was registered by the present petitioner namely Gul Zada against 39 persons including respondent No.1 namely Hazrat Gul for their interference in the disputed Shuwara( ). Later on, the local police converted the same into a complaint filed under section 145, Cr.P.C. and submitted the same to the local S.H.O. on 17.10.2011. The local S.H.O. prepared the site plan specifically showing a portion of the disputed property which is in possession of the present petitioner. The said complaint after going through a full-fledged trial culminated in favour of the present petitioner vide order dated 07.10.2013, whereby the petitioner was found entitled for possession of the disputed property. Later on, the present petitioner filed an application to the Worthy Additional Assistant Commissioner Dir Lower at Chakdara on 21.10.2013 for execution of the aforesaid order dated 07.10.2013 and delivery of possession, which was accordingly delivered to him vide order dated 02.12.2013. The original order dated 07.10.2013 was challenged by the Second Party in a revision petition, however their revision was dismissed by the learned Additional Sessions Judge/Izafi Zilla Qazi, Dir Lower at Chakdara vide order and judgment dated 18.06.2014.
17. It also merits to mention here that non-impleadment of the present petitioner by the First Party in the instant complaint is an active connivance of the Second Party as in February, 2013, a suit was filed by the Second Party against the present petitioner for cancellation of a partition deed dated 10.10.2004. It would be relevant to mention here that the record would show that the Second Party has executed a power of attorney in favour of Muhammad Iqbal to pursue the aforesaid suit, where the First Party namely Hazrat Gul has been shown as a witness of the said power of attorney. The written statement filed by the present petitioner in the said suit would show the factual position qua the entitlement of petitioner to the extent of 01 Pachai of land and that the whole Shuwara/mountain is of 72 Pachai of land, where he specifically stated that the property which is in his possession is marked, however, interestingly the said suit was withdrawn by the plaintiffs on 02.06.2015 with permission to file a fresh one but till date, no suit has been filed by the respondents.
18. The record further shows that when the revision petition filed by the First Party earlier in the proceedings initiated by the present petitioner under section 145, Cr.P.C. was dismissed by the learned Additional Sessions Judge/Izafi Zilla Qazi, Dir Lower at Chakdara vide order and judgment dated 18.06.2014, then the First Party soon thereafter has filed the instant complaint just to defeat the effect of the proceedings which were culminated into successful delivery of possession of the present petitioner.
19. From the above discussion, it can easily be gathered that non-impleadment of the present petitioner in the instant complaint by the First Party prima facie speaks of the active connivance of the Second Party. It further finds support from the concessional and compromising position taken by both the parties against each other. The aforesaid active connivance could also be read from the fact that when the revisional Court remanded the case for regular trial of the complaint filed by the First Party, then the said order has not been challenged by the Second Party before this Court like the present petitioner. Even before this Court during the course of arguments, learned counsel representing the Second Party was supporting the remand order of the complaint and on the query that how he could support continuation of the complaint and instead why not for the out- right dismissal of the complaint, his reply was that they too want the separation of their portion of land but after recording of evidence. This stance by itself speaks volume that through the instant proceedings both the parties intend to ascertain their portion of land in the disputed land/Shuwara/mountain and as such the instant proceedings have been filed by the two parties just to deprive the present petitioner from the fruits of proceedings which have already been ended in his favour.
20. From the above exposition of law on the subject, it is held and declared as under:--
1. That proceedings under section 145, Cr.P.C. could only be initiated if there is a dispute regarding the land, water or boundaries of land but such dispute should be of such a nature which has either raised or is likely to raise apprehension of breach of peace;
2. Proceedings under section 145, Cr.P.C. could not be initiated for establishment the question of title or for the separation of shares amongst the joint owners;
3. Proceedings under section 145, Cr.P.C. could only be maintainable if the rival parties claim exclusive possession against each other and such dispute has turned them inimical to each other;
4. Proceedings under section 145, Cr.P.C. could not be maintainable where the contents and language of the complaint speak of a civil dispute amongst the joint owners/co-owners.
21. Accordingly, the instant quashment petition is allowed and it is held that the Worthy Assistant Commissioner has rightly appreciated the facts and circumstances of this case and has nipped the evil in the bud at the initial stage by dismissing the complaint while the learned revisional Court through the impugned order and judgment dated 14.07.2017 has wrongly remanded the complaint back to the Worthy Assistant Commissioner for proceeding with the same in accordance with law, therefore the impugned order and judgment dated 14.07.2017 passed by the learned revisional Court is set aside whereas that of the Worthy Assistant Commissioner dated 28.07.2016 is restored and maintained.