Shop No. U/1432, situated in Raja Bazar, Rawalpindi, was evacuee property. It was transferred in the name of one Mehraj Din, to whom P. T. O. Was issued on 10th October 1961. The price of the shop was fixed at Rs. 19,200 out of which, a sum of Rs. 6,780 was still due from Mehraj Din and as such, Permanent Transfer Deed was not issued to him. He died on 15th February 1965, leaving behind Sheikh Riaz Ahmad and Sheikh Mukhtar Ahmad his sons, who were his sole heirs. The sons of the deceased appointed one Sikandar Sardar as their general attorney.
2. Sikandar Sardar executed agreement of sale of the aforesaid shop in favour of Ghulam Habib petitioner on 22nd October 1969. It was mentioned therein inter alia, that the P. T. O. Holders would execute a deed of association in favour of Ghulam Habib petitioner and if there was no hitch or hindrance in the transfer of the shop to him, will get the P. T. D. From the Settlement Department and thereafter, execute a proper sale deed in favour of aforesaid Ghulam Habib. Rs. 30,000 were received by the General Attorney as earnest money. On the following day, Sikandar Sardar entered into an agreement of sale with regard to the aforesaid shop with Ghulam Qadir respondent. It was mentioned in the document inter alia, that possession of the shop had been delivered to the vendee and that after securing P. T. D., regular sale deed would be executed in favour of the vendee within two months.
3. On 10th November 1969 the owner, namely, Riaz Ahmad and Mukhtar Ahmad executed deed of association in favour of Ghulam Habib petitioner through their general attorney Sikandar Sardar.
On the following day, Ghulam Habib petitioner deposited Rs. 6,780 the balance of the price of the shop due to the Settlement Department in the Treasury along with settlement fee of Rs. 96 and as a result, the disputed shop was transferred to Ghulam Habib petitioner on 13th November 1969, vide P.
T. D. Exh. P. E. The order of the Deputy Settlement Commissioner, Rawalpindi is to the effect:- "Shop No. U/1432, Raja Bazar, Rawalpindi is permanently transferred to Ghulam Habib son of Noor Din."
The document marked Exh. P. F. Entitled Iqrar nama was executed by Sikandar Sardar in favour of the petitioner on 12th November 1969, stating therein, (a) that the possession of the disputed shop had been made over to Ghulam Habib and (b) that property such as crockery, furniture and fans etc. Lying therein, had also been sold to him. These articles had been sold for an amount of Rs.
40,000.
4. Ghulam Habib petitioner filed a complaint under sec--tion 145 of the Code of Criminal Procedure in the Court of a Local Magistrate at Rawalpindi on 26th November 1969, alleging, that he was the owner of the disputed shop having obtained its P. T. D. From the Settlement Department and was in possession of the same as also the goods contained therein. That during his absence, at about 9- 00 p.m. On 24th November 1969, Ghulam Qadir respondent and his son, had taken forcible possession of the shop and the goods by breaking open the lock. It was further alleged, that there was a danger of breach of peace. It was prayed that after due proceedings, possession of the shop be restored to him. On the same day, the local police reported to the Magistrate that there was a dispute with regard to shop No. U/1432 and that on the night between the 23rd and 24th of November 1969, when Ghulam Qadir had placed his lock on the shop, Ghulam Habib put his own lock on the same. It recom--mended that action be taken against the parties under section 107 read with section 151 of the Code of Criminal Procedure and that prohibitory order under section 145, Cr. P. C. Be passed, so that nobody interfered with the possession of the shop till the decision of the Court.
5. Immediate action was not taken on the complaint lodged by Ghulam Habib nor any action appears to have been taken on the report of the police.
6. Ghulam Qadir respondent, without waiting for the decision of the criminal Court, filed a civil suit in the Court of Administrative Civil Judge, Rawalpindi, on 26th November 1969, praying for the specific performance of contract of sale of the disputed shop entered into between him and the general attorney of Riaz Ahmad and Mukhtar Ahmad on 23rd October 1969. He mentioned therein, that in part performance of the contract, Riaz Ahmad and Mukhtar Ahmad had delivered the possession of the shop to him through their general attorney Sikandar Sardar. In these proceedings, Ghulam Qadir cited Ghulam Habib as a defendant, because he had obtained P. T. D.
From the Settlement Department, and in whose favour the P. T. O. Holders had surrendered their rights. The plaintiff also filed an application for the grant of temporary injunction seeking to restrain defendant No. 3 from interfering with his possession of the disputed shop. It appears from the order of the learned District Judge dated 16th March 1970, that temporary injunction was granted to Ghulam Qadir respondent by the Administrative Civil Judge, restraining Ghulam Habib from interfering with the possession of the shop, but subsequently, the learned Administrative Civil Judge, by his order dated 29th January 1970, dismissed the application. While doing so, he observed that the P. T. O. Holders could not transfer their rights in the disputed property permanently. It was thus held, that prima facie the plaintiff had no case. The learned Administrative Civil Judge also observed that in view of the proceedings, pending between the parties under section 145 of the Code of Criminal Procedure, neither could be said to be in actual physical possession of the shop "at the moment".
7. After the rejection of the application of Ghulam Qadir respondent by the Administrative Civil Judge on 29th January 1970, Ghulam Habib is said to have taken possession of the shop in dispute and as a result, the local police made another report to the Ilaqa Magistrate on 30th January 1970 contending therein that there was danger of breach of peace between the parties and thus, in order to prevent the same, the shop may be sealed. The Magistrate in his order observed:- "It is evident from the police report that the situation is very tense and quite alarming. I feel that the case is one of emergency and calls for action as contemplated under subsection (4) of section 145, Cr. R C. It is therefore, Imperative that to avoid breach of peace, the shop in question should be immediately sealed and attached pending the decision of the proceeding under section 145, Cr. P.
C. It is ordered that shop No. U/1432, Raja Bazar, Rawalpindi, be sealed and attached accordingly.
The copy of this order is made over, to the S. H. O. For necessary action."
8. Aggrieved with the order of the Administrative Civil Judge dated 29 January 1970, Ghulam Qadir respondent preferred an appeal in the Court of District Judge, Rawalpindi. It was urged before him by the counsel for the appellant, that the P. T. D. Issued in favour of Ghulam Habib had been challenged before the Settlement authorities and the case had been remanded by the Assistant Settlement Commissioner, and that defendant No. 3 should be directed not to interfere with the pos. Session of the plaintiff, pending the decision of the suit of specific performances. The contention was repelled. It was observed that the plaintiff had no case as the holders of the P. T. O.
Could not sell the property by virtue of section 22 of the Displaced Persons (Compensation and Rehabilitation) Act, 1959. The. Appeal was dismissed on 16th March 1970.
9. The impugned order passed by the Magistrate sealing and attaching the shop, was challenged by Ghulam Habib petitioner on the following day of the passing of the aforesaid order. The impugned order had not been passed in the presence of the parties. However, when it was questioned by Ghulam Habib petitioner, the learned Magistrate passed the following order on 3rd February 1970:- "I do not see any reason to vacate the order, if accordance with which the shop in question has been sealed. To avoid the breach of peace and in the interest of both parties, the shop No. U/1432, Raja Bazar, will remain sealed and attached till the decision of the case pending under section 145, Cr. P. C. In this Court" it is after passing of the last mentioned order by the Magistrate, that Ghulam Habib petitioner moved the learned Sessions Judge, Rawalpindi, under section 435 read with section 439, Cr. P. C. The learned Sessions Judge, after hearing the parties, has recommended to the High Court for quashment of the proceedings taken by the Magistrate, especially when independent pro--ceedings under section 107, Cr. P. C. Are pending against the parties in his Court.
This recommendation has been registered in this Court as Criminal Revision No. 453 of 1970.
Besides this, the petitioner has also filed a revision petition direct in this Court bearing No. 162 of 1970. Both these revisions arising out of the same dispute shall be disposed of by this order.
10. It may be usefully repeated, that it was Ghulam Habib petitioner, who first approached the criminal Court by way of an application under section 145 of the Code of Criminal Procedure on 26th November 1969, alleging therein, that he had been put in possession of the disputed shop by Riaz Ahmad and Mukhtar Ahmad, on 10th November 1969. It was on 24th November 1969, that Ghulam Qadir respondent took forcible possession of the same by placing his own lock over the petitioner's lock. On the same day, the local police sent report to the Court under section 145, Cr. P.
C., which gave a version contrary to the version of the petitioner. The police reported that the respondent was in possession, whereas the petitioner had taken forcible possession of the shop by placing his own lock over the lock of the respon--dent. In spite of these conflicting reports, immediate action was not taken. On the same day, the respondent filed a suit for specific performance of the contract of sale of the disputed shop, wherein he claimed to be in possession.
He made an application for issue of temporary injunction restraining the defendant (petitioner in the present proceedings) from interfering with his possession. This request was declined by the Court. It is after she refusal of the civil Court to grant injunction that the petitioner is said to haveth removed the lock of the respondent from the disputed shop as a result of which, the impugned order was passed by the Magistrate.
11. Lengthy arguments were addressed and a number of authorities were quoted. These need no mention as most of these authorities have been considered by the Supreme Court in the case of Shah Muhammad v. Haq Nawaz (PLD 1.970 SC 470).
12. It is an admitted fact that besides the proceedings, taken under section 145, Cr. P. C. Proceedings under sections 107 and 151, Cr. P. C. Are also going on in the Court of the learned Magis--trate. It is also apparent from the facts stated above, that civil 4 litigation regarding this very property is going on before the civil, Court. The question would be, whether, in these circumstances without giving notice to the parties as required lay sub-section(3) of section 145, Cr. P. C., the Magistrate was justified in passing the impugned order and declining to vacate the same, when an application to that effect was made before him on the following day of the passing of the same. It seems to me that the fact of the pen--dency of the civil litigation between the parties, with regard to the subject-matter of the dispute having been brought to his notice and specially when the security proceedings were pending in his Court, the Magistrate was not justified, without coming to a definite finding that the case was one of emergency, to pass the impugned order. As a matter of fact, proceedings under section 145, Cr. P. C. Are taken in the aid of civil Court. And if the matter is pending before the civil Court, the criminal Court should decline to interfere especially, when proceedings under section 107, Cr. P. C. To bind down the parties, are pending before him. It is only the civil Court, which can decide the rights of the parties. The proceedings under section 145, Cr. P.
C. Are of a temporary nature. These are taken to afford an opportunity to the parties to approach the civil Court and get their dispute finally decided. This very proposition came up before their Lordships of the Supreme Court in the case of Shah Muhammad v. Haq Nawaz referred to above.
After considering a large number of authorities, my Lord Mr. Justice Yaqoob Ali (now acting Chief Justice), who wrote the leading judgment, observed:-- "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."
At another place, it was observed:- "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 a civil Court is seized with the dispute and has passed a decree declaring the rights of the parties there in or has passed an order relating to possession of the subject-matter of the suit. In such a case, if apprehension of breach of peace prevails, the Magistrate can taken 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.--- It was also observed:- "The conclusion we have reached thus, is that a case in which a civil Court is already seized with subject-matter of dispute and has passed an order regulating possession thereof, or a case in which a decree for possession has been granted, or a permanent injunction granted restraining the opposite-party from interfering with the posses--si6n of the decree-holder fall outside the jurisdiction of a Magistrate under section 145, Cr. P. C. Action can of course be taken always under sections 107 and 151 of the Criminal Procedure Code to prevent breach of peace in case of this nature, but no order for attachment of the property can be made."
In the case before me, the respondent had after instituting suit for specific performance, prayed for the grant of temporary injunction. This was refused to him. His appeal also failed subsequently. It thus means that the civil Court, before which the dispute is pending, did not find it proper to restrain the peti--tioner from interfering with the possession of the respondent. Thus even if the latest report of the local police dated 30th January 1970, that the petitioner broke open the lock of the respondent and had entered into possession of the shop be correct, it would not empower the Magistrate to take action under section 145 of the Code of Criminal Procedure though he may if so desired by 'him, bind down the parties, to keep peace with regard to which proceedings are pending before him.
12. With these observations, the revisions are allowed and the impugned order is set aside. The possession of the shop shall be restored to the petitioner.