This-petition under section 561-A of the Code of Criminal Procedure seeking the quashment of the proceedings under section 145 of the Code of Criminal Procedure pending in the Court of Magistrate 1st Class, Bhalwal, District Sargodha, has arisen in the following circumstances.
2. The land in dispute belonged to Muhammad Bakhsh and his wife Mst. Raj Bihi. Muhammad Bakhsh died m the year 1961 and Raj Bibi died in the year 1973. Mst. Fazal Begum petitioner is the daughter of Muhammad Bakhsh and Mst. Raj Bibi. Ghulam Hussain is the husband and the remaining petitioners, Afral Hussain, Mushtaq Hussain, Abid Hussain and Fayyaz Hussain are their sons. The petitioners' case is that on the death of the parents of Mst. Fazal Begum a mutation of inheritance was sanctioned in her favour, and first she had been receiving her share of the produce from the tenants. In the beginning of 1981, she obtained physical possession of the land comprising Khewat Nos. 53, 82, 33 and 120, which was converted into Square No. 66, Killa Nos. 3, 4, 5, 6, 7, 14, 15, 16, 17 and 18/1 and Square No. 98, Killa Nos. 12 and 13. Since then she had been in the cultivating possession of the land through her sons. The respondents, Muzaffar Hussain, Ghulam Muhammad and Muhammad Afzal, threatened to take back the land from her. She, therefore, instituted a suit for perpetual injunction against them in the Court of Civil Judge Bhalwal and on 13-10-1982 "stay order with regard to the possession of the petitioners" restraining the respondents Nos. 3 to 7 was issued. The said respondents were served with notice of the stay application. But on 18-10-1982 they moved the Collector for the correction of entries of Khasra Girdawri. That application was entrusted to the Assistant Commissioner Bhalwal for inquiry and ultimately on the report of the Patwari that the petitioners were not in the possession of the land, the Assistant Commissioner by his order dated 26-10-1982 directed that the entries of Khasra Girdawri be changed. Thereafter, the said respondents made a report to the police that the petitioners had entered into the land, destroyed the crops and taken forcibly possession thereof. The petitioner approached this Court by means of writ petition and the operation of the Assistant Collector's order dated 26-10-1982 was suspended.
Despite all this, the police initiated proceedings under section 145, Cr.P.C. And the learned Magistrate directed the attachment of the land by his order dated 15-1-1983.
3. The petitioners' case is that as in the civil suit, which was instituted before the proceedings under section 145, Cr.P.C. Were initiated, an order regulating the possession of the land in dispute had been made, the learned Magistrate had no jurisdiction to proceed under section 145, Cr.P.C. And to make the order attaching the land in dispute.
4. The respondents Muzaffar Hussain, Ghulam Muhammad and Muhammad AD .Al have. Not controverted the facts stated above. According to them, however, as there was an apprehension of the breach of peace as respects the land in dispute, the learned Magistrate was fully competent to proceed as he did.
5. The leading authority on the point is Shah Muhammad v. Haq Naqaz PLD 1970 SC 470. In that case, the appellant had filed a suit in the civil Court on the 12th September, 1969 against the respondent for a declaration that he was a tenant of the disputed premises and for grant of permanent injunction restraining the respondent from interfering with his possession. An ad interim injunction was granted by the Court on the 13th September, 1969, for maintaining status quo and that order was in operation when the Additional District Magistrate passed the impugned order sealing the shop in dispute and attaching the workshop in possession of the appellant. The appellant before the Supreme Court challenged the order of the Magistrate under sections 439 and 561-A, Cr.P.C. And learned Single Judge of this Court held that the two jurisdictions, the one under section 42 of the Specific Relief Act and the other under section 145, Cr.P.C. Were normally parallel and co-existent; that as a necessary corollary from this it would follow that in certain circumstances, even a clash of jurisdiction would he inevitable and that where despite an order of the civil Court regarding an ad interim injunction being in the field, the Magistrate is satisfied in regard to the genuine existence of apprehension of breach of peace regarding a dispute over land, he will have the jurisdiction to move in the matter. The High Court decision is reported as Shah Muhammad v. Haq Nawaz 1971 P Cr. L J 610. The appellant appealed to the Supreme Court and it was held: "The provisions of the two Courts set out above have a material bearing on the question whether a Magistrate can, under section 145 of the Criminal Procedure Code, act in violation of a decree or 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 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. 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 possession 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:'
The conclusion thus reached was that a case in which a civil Court is also seized of the subject- matter of the dispute and has passed an order regulating possession thereof falls outside the jurisdiction of the Magistrate under section 145, Cr.P.C. And that action can always be taken under sections 107 and 151, Cr.P.C. To prevent breach of peace in case of this nature, but no order for attachment of the property can be made. (See Shah Muhammad v. Haq Nawaz PLD 1970 S.C. 470.
6. Learned counsel for the respondents referred to Haji Muhammad Ashraf v. The State 1988 P Cr. L J 2268 for his contention that an order of status quo in a civil suit is no bar to proceedings under section 145, Cr. P.C. In that case, however, a civil suit had been instituted after the police had initiated proceedings under section 145, Cr.P.C. Against the parties. Learned counsel for the respondents also contended that the petitioners' remedy was the remedy of revision under section 439, Cr.P.C. And as they did not avail themselves of that remedy, they were not entitled to any relief under section 561-A, Cr.P.C. I agree that when an ordinary remedy under the Cr.P.C. Is available, a person must avail himself of that remedy before invoking this Court's extraordinary jurisdiction under section 561-A, Cr.P.C. But, for one, this matter has been pending in this case since August, 1983, and secondly, the question relates to the jurisdiction of the Magistrate to proceed against the petitioners under section 145, Cr.P.C. Learned counsel for the State threw his weight on the side of the respondents and cited Shah Muhammad v. Haq Nawaz 1971 P Cr. L J 610. As seen above, when that matter reached the Supreme Court, the view taken by the learned Single .Judge was not approved.
7. For these reasons, the petition is accepted and the proceedings under section 145, Cr.P.C., pending in the Court of Magistrate 1st Class, Bhalwal, are quashed. Consequently, the order of the learned Magistrate attaching the land in dispute shall also stand vacated.