' The petition is addressed under section 561-A, Criminal Procedure Code, for quashment of proceedings under section 145, Cr.P.C., pending before the Magistrate (Revenue Assistant) Mirpur.
2. Raja Lorasab Khan, the ancestor of present respondents, moved the District Magistrate Mirpur under section 145, Cr.P.C. It was alleged that the applicant was in possession of land measuring 192 Kanals 18 Marlas out of 1118 Kanals under survey number 113, situate in village Sankiah, Police Station Afzalpur. Muhammad Afzal, Iftikhar Ahmad, Afzaal Mehdi, Nazakat and Sajjad, non-applicants, were trying to evict him from the land in dispute in derogation to due course of law. The action of the non-applicants caused apprehension of imminent breach of peace. It was further stated that on September 23, 1990, the non-applicants took Patwari and Girdawar to the spot and trespassed in the land to assure the revenue officers of their possession in the suit land. It was further alleged that the building material stored by the applicant in the land in dispute was stolen by the non- applicants at night. It was prayed that action may be taken in exercise of powers under section 145, Cr.P.C. By making attachment of the land in dispute. The application was supported by an affidavit and copies of record of rights. In preliminary enquiry, statements of Habibur Rehman, attorney of the applicant, Navid Khan and Babar Ali were recorded. The Magistrate passed the preliminary order on satisfaction that the conditions laid down under section 145, Cr.P.C. Were fully satisfied.
Moreover, it was deemed that there was an imminent danger of breach of peace, as such the property was attached. The order of attachment was passed on October 13. The non-applicant- petitioners, instead of filing objections before the Magistrate, felt advised to invoke the jurisdiction of this Court under section 561-A, Cr.P.C. To seek quashment of the proceedings.
3. It was explained by the learned counsel for the petitioners that before passing of the impugned order, a civil suit was instituted by Raja Lorasab Khan in the Court of Additional Sub-Judge, Mirpur on October 6, 1990. It was a suit for declaration and perpetual injunction. He also applied for issuance of temporary injunction. The learned Additional Sub-Judge accepted the prayer and issued interim injunction, whereby defendant-petitioners were directed to refrain from transferring the suit land by gift, sale or any other device to third party and also to desist from interfering in the possession of the plaintiff. It was argued that in presence of civil proceedings and issuance of interim injunction, the proceedings under section 145, Cr.P.C. Were unsustainable. Mr. M.Y. Arvi, the learned counsel for the opposite side, opposed the application and contended that proceedings under section 145, Cr.P.C. Were maintainable even in presence of civil suit. The learned counsel made reference to an unreported case of this Court, "Gut Hussain and others v. Shan", decided on May 14, 1980, and "Abdul Qudoos v. Mangta", PLD 1980 Azad J&K 17.
4. Section 145, Cr.P.C., conceives a situation where there was likelihood of breach of peace on account of dispute concerning land, water or the boundaries thereof. It postulated that in presence of the aforesaid conditions, the Magistrate was empowered to record his satisfaction and pass a preliminary order by fixing a time and asking the opposite-party to put in written statement of his respective claim in respect of the fact of actual possession of the subject of dispute. The Magistrate was enjoined to enquire into the question of actual physical possession of the subject of dispute, without reference to the merits or the claim of any of such parties to a right to possess the subject of dispute. This was so, as ultimately the title or right to possess the subject of dispute was determinable by competent Civil Court. The nature of the proceedings under section 145, Cr.P.C., preconceived an emergency resulting in an imminent danger to peace on account of dispute over possession of land, water or the boundaries thereof.
5. The Magistrate was also empowered to attach the subject of dispute pending his decision, on the satisfaction that it was a case one of emergency. The authority to make attachment rested on satisfaction of the Magistrate, to avert the danger of breach of peace. The scheme of law suggests that the provisions were introduced by the legislature to meet an emergency, as a stop-gap, to maintain peace and to enable the parties to seek their redress about title or claim of right to possess the subject of dispute in a Civil Court. Thus, the ultimate arbiter to determine title or right to possess the subject of dispute was the Civil Court and not the Magistrate.
6. In a situation where the parties to the dispute were already before Civil Court contesting their title and right to hold the property and furthermore, when a definite interim injunction was issued by the Civil Court, where, prima facie, the possession of plaintiff over the subject of dispute was accepted and the defendants were directed to refrain from interfering in the possession of the plaintiff, it was not permissible for the Magistrate to interfere in the possession regulated by Civil Court. The restriction on exercise of jurisdiction under section 145, Cr.P.C., was enforceable to avoid conflicting directions. In such a situation, an order of attachment was considered as over lapping.
In somewhat similar proposition before the Supreme Court in Suleman Khan's case, 1983 PCr.LJ 2590, it was observed that the Magistrate was under duty to honour the order of the Civil Court and to refrain from acting in its derogation by making attachment of land when a patty was put in its possession by virtue of a decree of the Civil Court. It was suggested that it was advisable for the Magistrate, in such cases, to act in exercise of powers under section 107, Cr.P.C., to avert danger of breach of peace. A similar view was held in a previous decision of this Court in Muhammad Ashraf Khan's case, 1981 PCr.LJ 1018. The proposition under consideration received attention of the Supreme Court of Pakistan in Shah Muhammad's case PLD 1970 Supreme Court 470. Mr. Justice M. Yaqub Ali, the learned Judge, as he then was, obse7ed: "A Magistrate cannot 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. 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 peek 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. Different consideration may of course arise in individual cases for example in an action for possession, the decree might not have been executed within the time prescribed by law and the judgment-debtor thereby acquires a right to continue in possession. In such a case a 'dispute' may well arise as to possession and attract the jurisdiction of a Magistrate under section 145 of the Criminal Procedure Code. Cases in which a perpetual or temporary injunction has been issued restraining the defendant from interfering with the possession of the plaintiff stand, however, on a different footing. A case in which a Civil Court is already seized with the 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 possession 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."
'The aforesaid view was reiterated in Imamdad Khan's case, 1971 SCMR 581. In Mirza Muhammad Aziz's case, AIR 1962 Allahabad 68, Mr. Justice A.N. Mulla considered the controversy in the following manner: "It is one I of the maxims of administration of justice that a conflict of decisions should be avoided and where disputes are really of a civil nature, the orders of competent Civil Courts should be given precedence over the orders of Criminal Courts.
' Criminal Courts in disputes as to immovable property are merely stop-gaps and their orders are only meant to ensure peace and the dispute is finally decided by a competent Civil Court.
' Where a party against whom an order has been passed in a case under section 145, files a suit in a competent Civil Court for the decision of the dispute and the Civil Court issues a temporary injunction stopping the other party from taking possession of the property in dispute according to the order of the Magistrate, the order of. The Criminal Court although valid cannot be enforced so long as the injunction is in force."
' The aforesaid view was followed in 1982 PCr.LJ 1146; 1983 PCr.LI 42 and 129; 1985 PCr,LJ 2564 and 1986 PCr.LJ 1198.
7. A contrary view was recorded by Mr. Justice A.R. Changez in Dilbaz Khan's case, PLD 1959 .Lahore
264. The learned Judge was of the view that institution of a civil suit and issuance of temporary injunction by a Civil Court could not stand in the way of Magistrate to act in the matter under section 145, Cr.P.C. And to continue proceedings and to make attachment of the subject of dispute.
In view of the learned Judge, issuance of an interim injunction was not a final determination of rights of the parties as the order of interim injunction was subject to review, revision and appeal, as such liable to modification. The finding of the learned Judge was not supported by any other authority. Such a view cannot be given preference over the aforesaid consensus including the dictum of the Supreme Court. The unreported case of Gul Hussain is of no help, to the respondents as in that case, the interim injunction issued in favour of the plaintiff was not definite and clear enough to support his possession. In that case, interim injunction was issued to maintain status quo. The learned Judge was of the opinion that the interim injunction was in vague terms, as such the danger of breach of peace continued as a threat. Therefore, the proceedings under section 145, Cr.P.C. Were ,allowed to continue. A similar view was recorded in Abdul Qudoos' case, PLD 1980 Azad J&K 17. These authorities are quite distinguishable from the state of facts of the present case.
Moreover, the authorities do not lay down any hard and fast rule of law in support of continuation of proceedings under section 145, Cr.P.C., in presence of a civil suit and interim injunction.
8. In present case, it is noticed that the Civil Court entertained the suit of Raja Lorasab Khan on October 6 and issued notice to the defendants to file their written statements. On the same day, interim injunction was issued whereby possession of the plaintiff over the suit land was, prima facie, accepted and the defendants were directed to refrain from transferring the land to third party and from interfering in the possession of the plaintiff. In presence of the aforesaid categorical direction of the Civil Court, it was not permissible for the Magistrate to entertain proceedings under section 145, Cr.P.C. And to make attachment, as it definitely resulted in interference in the jurisdiction of the Civil Court. The proceedings were obviously unsustainable.
9. Mr. M.Y. Arvi, the learned counsel explained that the interim injunction issued by the Civil Court was insufficient to avert apprehension of breach of peace. The suggestion may be genuine, but in such case, the Magistrate and the police were empowered to take action against the persons creating violence or breach of peace, under the provisions meant for security measures. Action under sections 107 and 151, Cr.P.C. In such situation, was well provided by the legislature. Moreover, in case of violation or disobedience of the terms of interim injunction, the Civil Court was empowered under rule 2(3) of Order 39, Civil Procedure Code, to take action by making attachment of the property and detaining the defaulter in civil prison for a period up to six months.
The Civil Court was vested with better power to vindicate its honour to ensure obedience of its orders and directions.
The aforesaid discussion leads to the conclusion that the proceedings under section 145, Cr.P.C., in present case, are unwarranted. The same are, therefore, quashed.