' The respondents are absent despite service. Therefore, this order shall operate ex parte against them.
2. Dil Muhammad moved an application under Section 145, Cr.P.C. In the Court of Additional District Magistrate, Mirpur, on 12th August, 1986. It was alleged that the petitioner was in possession of the land by virtue of his title. The non-applicant respondents were in an organised group. By pre- concert, they forcibly converted land measuring 8 feet in width and 116 feet in length, in survey number (previous) 1276 (present 1613), measuring 2 kanals 8 marlas, situate in village Kanaily, as their passage. The non-applicants converted the land into their passage on 11th August, 1986. On account of resistance of the applicant-petitioner, the non-petitioner created breach of peace, as such the petitioner apprehended serious danger to his property and life. The application was sent to Revenue Assistant/Magistrate 1st Class for its disposal. Later on, it was transferred to Collector Mangla Dam/Magistrate 1st Class. Due process was issued and objections were filed. The evidence of the parties was also recorded. The application was dismissed on the ground that as a civil suit was instituted by the petitioner against the non-petitioners wherein the subject in dispute was the land in question and an interim injunction was also issued, the proceedings under section 145, Cr.P.C., in the circumstances, were unwarranted. The finding was based on a decision of this Court recorded in a case titled "Muhammad Sadiq v. Fazal Elahi". Thus, the application was dismissed on 31st May, 1989. A revision before the Sessions Judge also failed.
3. The learned counsel for the petitioner argued that a proceeding under section 145, Cr.P.C. Was not to be dismissed merely on satisfaction that a civil proceeding in respect of the same subject of dispute was sub judice in a Civil Court. He relied on a decision of the Supreme Court of Azad Jammu and Kashmir reported in 1983 P Cr. L J.
2590.
4. Subsection (4) of section 145, Cr.P.C. Empowers the Magistrate, who takes cognisance of an application under Section 145, to enter into enquiry in order to ascertain as to which of the parties was, on the date of the order, in possession of the subject of dispute. It includes his authority to determine the right of possession of a party who, to his satisfaction, was found to have been wrongfully dispossessed within two months next before the date of order passed under subsection (1). Under subsection (6), the Magistrate, on finding a party in possession, is empowered to declare such party to be entitled to retain possession until evicted therefrom in due course of law. In order to maintain possession of such party, the Magistrate has to forbid all disturbance relating to possession of the subject of dispute. In the present case, it is admitted that civil suit has been instituted and an interim injunction has also been issued. In such a situation, one of the views of this Court was that the Magistrate was empowered to determine the proposition of possession of the subject of dispute irrespective of the civil proceedings and the interim injunction of the Civil Court. The counterview was otherwise. As conflicting views were expressed in different cases, the Supreme Court considered it expedient to put an end to the aforesaid expression of divergent views of the High Court. Thus, in Suleman Khan's case, 1983 P Cr. I. J 2590, the proposition was settled in the following manner:- "The Legislature keeping in view the nature of the proceedings of section 145, Cr.P.C. And the duty assigned to a Magistrate was conscious of the situation where in absence of sufficient and convincing evidence the Magistrate would not be able to reach a definite conclusion as to which party was in actual possession of the subject at the relevant time. To meet such a situation, the Legislature introduced section 146, Cr.P.C. Which contemplates that if the Magistrate reached the conclusion that none of the parties was then in such possession or finds himself unable to satisfy as to which of them was then in such possession of the subject of dispute he may attach it until a competent Court determines the rights of the parties thereto or persons entitled to possession thereof. Thus the provisions of section 146, Cr.P.C. Which are in continuation of the provisions under section 145, Cr.P.C. Are the enabling provisions to resolve the controversy in the terms of the Section and to leave the final settlement of the dispute to the discretion of competent Civil Court. The matter does not end there as the Section further provides that when a Magistrate attaches the subject of dispute or appoints a receiver of the subject the possession of the subject of dispute shall be made over to a receiver appointed by any Civil Court subsequent to the order of attachment or appointment of the receiver by Magistrate.
' We have already noticed that under subsection (4) of section 145, Cr.P.C. The introduction of the words 'if possible' and incorporation of the proviso under subsection (2) of section 146, Cr.P.C.
Clearly reflects that the order of the Magistrate whether under section 145, Cr.P.C. Or 146, Cr.P.C., is not only subject to decision of a competent Civil Court, but it also provides that the moment Civil Court takes a step to regulate the possession of the subject of dispute by appointment of a receiver, the order of the Magistrate automatically gives way to the order of Civil Court as the Civil Court is vested with power as final arbiter. Therefore, it is wrong to suggest that it is nowhere laid down under section 145, Cr.P.C. That the Magistrate is divested of his power in presence of civil proceedings or when the possession is regulated by a temporary injunction or in absence of a recent decree for perpetual injunction. The Magistrate acting under section 145, Cr.P.C. Is under an obligation to respect any recent decision concerning possession of the subject, given by a competent Civil Court. In case such a decision is not given due consideration and weight the action of Magistrate shall not only be derogatory to the norms of administration of justice but it may also culminate in disastrous results. To give importance to the recent decree of the Civil Court or an interim order in the terms of appointment of the receiver or issuance of ad interim injunction, is also a question of judicial propriety. Thus, the position finally comes to this that the Magistrate is, of course, competent to initiate proceedings under section 145, Cr.P.C. When he is satisfied from any information that there exists likelihood of breach of the peace concerning the possession of land or water or the boundaries thereof and he is within his jurisdiction to constitute an enquiry in order to determine the question of factum of possession, but the power of the Magistrate is restricted in the manner that he is excluded to advert into scrutiny of the merits of the claims of the parties to a right to possess the subject of dispute. Secondly, when merits are claimed to a title or right to possess the subject is recently settled by a competent Civil Court the Magistrate shall give effect to such a recent decree concerning the question of possession and shall maintain the possession acquired by either party in the light of such decree and its execution in due course of law. Likewise, the Magistrate shall avoid interference into possession of the subject by having a recourse to attachment in presence of an order of competent Civil Court of appointment of a receiver or issuance of ad interim injunction. But mere institution of a civil suit may not necessarily stop the hands of the Magistrate to enquire into the question of possession when other conditions contained under the Section are fulfilled.
' The next question pertinent to the proposition is as to what remedy is available to avoid likelihood of breach of the peace in presence of the recent decree of the Civil Court concerning the possession or an order regulating the possession for interim period? The proper answer is that when the question of possession of the subject is settled by the decision of a competent Court or its possession is regulated in one of the aforesaid manners, during the pendency of civil proceedings, on information of likelihood of breach of the peace, the Magistrate is within his power to proceed against the disturbance maker under section 107, Cr.P.C. It is well admitted that the provisions of section 107, Cr.P.C., which are general in character, are even attracted in such like cases. Besides that in case of a trespass or forcible dispossession of the rightful owner, the Magistrate is equally competent to proceed against the accused for commission of substantive offence."
5. In presence of the aforesaid dictum of the Supreme Court, it has to be accepted that once the Magistrate is satisfied that the possessory title. Of the subject of dispute is sub judice before a Civil Court and interim injunction is equally issued to maintain status quo, it is not imperative for the Magistrate to continue proceedings under section 145, Cr.P.C. The allegation of apprehension of danger to peace and tranquillity can be settled by resort to Section 107, Cr.P.C. Thus, in this case, once it is satisfied that the possessory title of the subject of dispute has already received attention of the Civil Court and an interim injunction is also issued, no further proceedings are warranted.
' There is no force in the petition. It is, therefore, dismissed.