1. WAHIDUDDIN AHMAD, J.-This appeal by special leave is directed against the order of the High Court of West Pakistan, Lahore, in Criminal Revision No. 954 of 1965, dated the 7th July 1966. By this order the revision petition was dismissed.
2. The dispute between the parties is in respect of agricultural land measuring 875 kanals, situated in village Bagga, Police Station Mandi Bahauddin, District Gujrat. In 1939, one Muhammad Ali died issueless. Mst. Fatima, the respondent his widow, succeeded to his estate under Customary Law. In 1962, West Pakistan Muslim Law (Shariat) Application (Amendments) Act V of 1962, came into force.
3. The appellants who are the rever--sioners of deceased Muhammad Ali claimed shares in the estate of Muhammad Ali under the Muhammadan Law. By mutation No. 791, 1/4th share was given to Mst. Fatima and 3/4th share in the property was given to the appellants. Thereupon, the appellants threatened to take forcibly possession of the land and on the 17th September 1965, Mst.
4. Fatima respondent No. 1, along with Mehn, Nadir and Mst. Naziran, filed a civil suit in the Court of Civil Judge, Mandi Bahauddin for declaration and permanent injunction against appellants Ghulam Nabi, Shera and Baqri. It may be mentioned that Shera and Baqri had died during the pendency of this appeal.
5. In the suit, the respondent made an application under Order XXXIX, rule 1, C. P. C. And the learned Civil Judge, by order dated the 8th October 1964, issued notice to the appellants and directed that in the meanwhile the status quo be maintained. On the 21st October 1964, the civil Court, after hearing the parties, issued a temporary injunction against the appellants restraining them from interfering with the possession of the respondent of the property in dispute. On the 26th April 1965, the appellants moved an application for vacation of the temporary injunction which was dismissed by a detailed order dated the 30th July 1965. The learned Civil Judge, held that the possession of the land and the entries in the Khasra girdawari appear to have been manipulated after the issue of temporary injunction. The appellants challenged this order in Civil Revision No. 400 of 1965, in the High Court of West Pakistan, Lahore, which was dismissed in limine on the 27th October 1965.
6. It appears that in the meantime on the 14th May 1965, the appellants managed to have proceedings under section 145, Cr. P. C. Initiated by the S. H. O., Mandi Bahauddin. He represented to the Magistrate that there was apprehension of breach of peace between the parties, that the dispute between the parties has already culminated in the murder of one Ghulam Qadir and that preventive measures be taken to avoid the breach of the peace. The learned Magistrate, 1st Class, Mandi Bahauddin, took cognizance of the dispute on the report of S. I. Perran Ditta, Officer Incharge, Police Station, Mandi Bahauddin. He attached the land in dispute and ordered the Sub-Inspector of Police, Mandi Bahauddin to appoint a reliable supardar. Four Receivers were appointed by the S. H.
7. O. On the 6th June 1965. In this way, the possession of some of the land passed to the four Receivers. The respondent No. 1 raised an objection before the Magistrate that no proceedings could be taken legally because the dispute was already pending in the civil Court. She produced a certified copy of the order passed by the Civil Judge, on the 21st October 1964. According to this order, a temporary injunc--tion has been given by the civil Court to the effect that the land in dispute was in possession of Mst. Fatima and till the decision of, the suit, her possession was not to be disturbed. Respondent No. 1 also filed a certified copy of order dated the 30 July 1965, by the civil Court on the application for the vacation of the above-mentioned temporary injunction given in her favour. By this order, the civil Court refused to vacate the order. After considering this material, the Magistrate 1st. Class, Mandi Bahauddin, by order dated the 20th October, 1965, vacated the attachment order and directed that the possession should be given to Mst. Fatima as decided by the civil Court. In this connection, he observed as under;--- "It is an established law that proceedings under section 145, Cr. P. C. Are of a preventive nature and the intention is to see that the peace is not disturbed. In the instant case it is admitted on either side that the parties have been bound down to keep the peace under section 107, Cr. P. C. And so preven--tive action has already been taken. I feel, in view of the clear injunction of the civil Court, it shall now be futile to collect evidence to arrive on any finding about the factum of possession, because it already stands settled. Accordingly, I direct the proceedings under section 145, Cr. P. C.
8. Need no longer be taken. Effect should be given to the order of the civil Court. The attachment order is vacated and the posses--sion shall be given to Mst. Fatima as decided by the civil Court."
9. This order was challenged before the Additional Sessions Judge, Gujrat in Criminal Revision No. 81/21 of 1969 under section 435 read with section 438 of the Criminal Procedure Code for reference to the High Court after setting aside the order of the Magistrate. The learned Additional Sessions Judge rejected this application and declined to refer the matter by his order dated the 21st November 1965. The matter was then taken to the High Court in Criminal Revision No. 954 of 1965, which was dismissed in limine by Mr. Justice Inamullah Khan, the then Chief Justice of the High Court of West Pakistan, Lahore, by his order dated the 29th July 1966. The appellants have challenged this order in this appeal before us.
10. Special leave was granted in this case to consider the question whether the order for the delivery of possession to Mst. Fatima goes beyond the injuction order of the civil Court and whether the execution of the Magistrate's order through executive process is likely to disturb the status quo and the Magistrate should have said no more after making his order lifting the attachment.
11. Ch. Muhammad Anwar Buttar, learned counsel for the appellants, has contended that the learned Magistrate, Ist Class, Mandi Bahauddin could vacate the order of attachment but he could not direct that the possession of the property in dispute should be handed over to Mst. Fatima as decided by the civil Court. According to the learned counsel, this direction could not be given underth section 145, Cr. P. C. The learned counsel further contended that the decision of this Court in the case of Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470) requires further consideration. He contended that the civil Court and criminal Court have separate jurisdiction and the action taken by a Magistrate under section 145, Cr. P. C. Cannot be dropped merely because the civil Court is seized of the dispute. The contention of the learned counsel has not impressed us.
12. We are in agreement with the view taken by a Bench of this Court in the case of Shah Muhammad.
13. After review of the case-law on the subject, it was held in that case as under:---- "The provisions of the two Codes set out above have a material bearing on the question whether a Magistrate, under section 145 of the Criminal Procedure Code, act in violation of a decree of 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 Pro--cedure Code is to prevent breach of peace arising out of a dispute concerning `land' or `water'. These proceedings though concerning the subject-matter of a dispute between' the con--tending 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.
14. 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 posses--sion 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."
15. If the order of the Magistrate is examined in the light of the above observation, it becomes quite clear that he also respected the order of the civil Court and has raised the attachment issued by his learned predecessor. He further directed that the posses--sion of the property be delivered to Mst. Fatima according to the decision of the civil Court. In our opinion, the order of the learned Magistrate is quite valid and no exception can be taken to it.
16. The learned counsel for the appellants, has contended that some portion of the property was in possession of the appellants and the possession of that portion could not be delivered to respondent No. 1. This contention also is not supported by the facts of this case. This aspect of the question was considered by the High Court and it was observed as under :---- "The submission of the learned Advocate for the petitioners is that his clients were also in possession of the land in dispute and, therefore, they should not have been dispossessed by the learned Magistrate by giving the possession of the entire land to Mst. Fatima. On the other hand, it appears from the finding of the learned Civil Judge that he had finally come to the conclusion that Mst. Fatima was in possession of the disputed H land and it was on that conclusion that he made the interim order absolute."
17. This point was also considered in the application for the vacation of the stay order by the Civil Judge, Mandx Bahauddin. He came to the conclusion that the appellants have managed to get themselves entered in possession of the suit in Khasra girdawari for Rabi 1964 through fake tenants.
18. His observation reproduced below throw abundant light on this aspect of the case :- "Even a naked eye can see that the defendants have managed to get themselves entered in possession of the suit in Khasra girdawari for Rabi 1964 through fake tenants by fair and foul measures. Then, they produced faked witnesses in the Court and after this, they have moved the Court for vacation of temporary injunction issued against them. If their contention had been true one, they would not have been kept quiet for a considerable long time, and moreover, they would have gone in appeal against the order dated 21-10-1964."
19. The last contention of the learned counsel for the appellants that the Magistrate should not have ordered the restoration of possession to Mst. Fatima is also devoid of all force. Admittedly in the present case, the possession of the property in dispute was taken under the orders of the Magistrate by S. I. Mandi Bahauddin. He appointed four supardars for the management of the property. In this way the possession of the entire property was taken by S. I. Mandi Bahauddin. It was, therefore, natural for the Magistrate to order the restoration of the possession of the property in dispute to the party from whom it was taken by the Sub-Inspector. Under the orders of the civil Court, Mst. Fatima was in possession of the property and the status quo was maintained in that respect. The Magistrate, therefore, was perfectly justified in directing the S. I. To hand over the possession to Mst. Fatima respondent No. 1. In law on the withdrawal of the attachment under section 146(1) of the Cr. P. C., it is open to the Magistrate to pass ancillary orders about the custody of the property. . It is his duty, to restore the property to the person from whose possession it was taken. This view finds support in a decision of the Dacca High Court in the case of Abdul Gam, Bepari v. Sahed Ali Majhi and others (PLD 1970 Dacca 246).
20. After going through the facts of the present case, we are satisfied that the Magistrate, 1st Class, Mandi Bahauddin has passed a valid order on the 20th October 1965, in directing that the possession of the property be given to Mst. Fatima as decided by the civil Court. We are further satisfied that he has not acted beyond his jurisdiction in passing this order. There is no force in the appeal which is dismissed without costs.