NASIR ASLAM ZAHID, J.--- Petitioner Khalid Waheed Khawaja, has invoked Constitution jurisdiction of this Court against an order, dated 19-2-1992, passed by the Sessions Judge, South Karachi in Criminal Revision No.15 of 1992.
Admittedly, petitioner was married with respondent No.2, Mst. Hind at Lahore and subsequently they lived together as husband and wife. Dispute between the parties has arisen in respect of Bungalow No.23 `M' Street, Phase IV Defence Officers' Housing Authority, Karachi. On 8-7-1991, the petitioner filed Suit No.777 of 1991 in this Court for a declaration that he was real owner and beneficiary of the disputed bungalow while the respondent No.2 was its ostensible owner and Benamidar with no right, title or interest in the said bungalow. He sought injunction restraining respondent No.2 from taking any step to dispose of said bungalow or to claim its ownership or to exercise any other right in respect of said Bungalow. Said suit was, however, transferred to Court of the 1st Senior Civil Judge, Karachi, South where it was numbered as Suit No.1499 of 1991 and where it is pending.
On 30-1-1992 respondent No.2 reported to the S.H.O. Of the area that the petitioner was trying to dispossess her by force from the disputed Bungalow. On 31-1-1992, father of the petitioner made an application to the same S.H.O. That respondent No.2 had forcibly occupied the disputed Bungalow.
On such reports, S.H.O. Gizri submitted reports under section 10 of Cr.P.C. Before the S.D.M. Civil Lines against both the parties. The S.H.C: also moved S.D.M. Civil Lines for action under section 145 of Cr.P.C. S.D.M., Civil Lines was seized of the proceedings under section 145 of Cr.P.C. When respondent No.2 filed Suit No.134 of 1992 against the petitioner and the S.D.M. Civil Lines challenging the action being taken by the S.D.M. Under section 145 of Cr.P.C. Against her and seeking an injunction restraining the S.D.M. From proceeding further in the matter.
On 4-2-1992 respondent No.2 filed Criminal Revision No. 15 of 1992 in Court of the Session Judge, Karachi South challenging the proceedings under section 145 of Cr.P.C. Pending in Court of the S.D.M. Civil Lines. Said application was decided under the impugned order by the Sessions Judge, Karachi South who ordered proceedings under section 145 of Cr.P.C. To be stayed till such time the Civil Court decided the suits filed by the petitioners and the respondent No.2. Hence this petition.
3. Mr. M. Ismail Kassim, learned counsel for the petitioner argued that the proceedings under section 145 of Cr.P.C. Pending in a Criminal Court were independent and they could not be subordinated to the proceedings of a civil suit pending in a Civil Court and that the respondent No.2 had forcibly occupied the disputed Bungalow and then had obtained status quo order from the Civil Court by misrepresentation of facts and by twisting the material facts and that illegal possession of the respondent No.2 could not be protected. It was also argued that there was no law to the effect that pendency of a civil suit would debar Criminal Court from entertaining proceedings under section 145 of Cr.P.C. Despite apprehension of breach of peace and that passing of status qua order by the Civil Court cannot be equated, with right to possess the premises under decree or order of a Court.
4. Perusal of the impugned order shows that this Court had ordered status quo during proceedings of Suit No.777/91. After transfer of said suit to the 1st Senior Civil Judge, Karachi South, the latter ordered maintenance of status quo which was extended from one date to another date. Status quo order was also passed in the suit filed by respondent No.2. The first Senior Civil Judge appointed two Advocates as Commissioners to visit the disputed Bungalow and submit report, about the party in possession. Such report was given in favour of the respondent No.2 being in possession of the disputed Bungalow. The title deeds in respect of the disputed Bungalow stand in name of the respondent No.2 as per the impugned order.
5. A Criminal Court cannot be permitted to change the status quo under, the garb of supposed existence of a dispute likely to cause a `breach of the peace' when property in question is subject- matter of cavil litigation and its title is disputed. In the case of Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240, it was held that where possession of a property which is subject-matter of proceedings under section 145; Cr.P.C. Has been regulated by a Civil Court, even through a temporary injunction, the matter falls outside the jurisdiction of the Magistrate under section 145, Cr.P.C. In the case of Shah Muhammad v. The State and others 1983 SCMR 1173, it was held that a case in which a Civil Court is already seized of the subject-matter of dispute and has passed an order regulating possession thereof, the matter falls outside the jurisdiction of the Magistrate under section 145, Cr.P.C. In the case of Syed Ghulam Murtaza Shah v. Babar Akbar Khan etc. 1991 P Cr. L J 720 it was held that proceedings under section 145, Cr.P.C. In respect of land which was subject-matter of civil litigation, are incompetent. In the case of Muhammad Hussain and another v. The State and another 1986 P Cr. L J 1198, a learned Single Judge of this Court took view that if a civil suit is filed in respect of a dispute relating to possession of immovable property and thereby Civil Court becomes seized of the subject-matter of the dispute and it passes an order by way of interim or permanent injunction regulating the possession of such property, the Criminal Court will have no jurisdiction under section 145, Cr.P.C. To deal with possession of such property.
In light of the case-law on the point, no exception can be taken to order of the learned Sessions Judge staying the proceedings under section 145 of Cr.P.C. Till decision of that suit filed by the petitioner against the respondent No.2. The impugned order appears to be well-reasoned and consistent with the case-law or the point and does not call for interference in a Constitution petition. Under a short order dated 26-3-1992 this Constitution petition was dismissed in limine and these are reasons for the same.