MUKHTAR AHMAD JUNEJO, J.- Applicant S. Iqbal Balighuddin has filed this Criminal Misc. Application challenging an order passed by the SDM Civil Lines Karachi in proceedings under Section 145 Cr.P.C, on 4-7-91.
2. Admittedly respondent No.2 Dr. Tabarak Hussain was owner of the disputed property viz Bungalow No.34, Khayaban-e-Janbaz Phase-V, Defence Housing Authority. Under an agreement of sale dated 30.6.1989 respondent No.2 agreed to sell the disputed Bangalow to applicant S. Iqbal Balighuddin. Subsequently applicant S. Iqbal Balighuddin filed suit No.515 of 1991 in this Court, for specific performance of the sale agreement dated 30.6.1989 and for issue of interim injunction protecting his possession of the disputed Bungalow. In said suit an application for interim injunction was filed and it was fixed for hearing on 16.5.1991 when it was ordered that the respondent No.2 would not dispossess the applicant from the disputed premises save in accordance with law. Apparently said order dated 16.5.1991 was passed with consent of the parties. On 19.5.1991 SHO.P.S Darkhshan submitted police report in court of the SDM Civil Lines for action under Section 145 Cr.P.C, in respect of the Bungalow in dispute. In said report it was mentioned that under orders of the Hon'ble Chief Justice of Sind High Court a case was registered on complaint of Dilshad Ahmad Khan against Majid Furqan, Muhammad Tariq, Nadeem Ahmad and Ateeq Ahmad Khan about having trespassed in the disputed Bungalow on 6.5.1991 and that said Bungalow stood in the record of Defence Housing Authority in the name of respondent No.2 and that on 19.5.1991 attorney of the applicant had moved an application that there was apprehension of breach of peace. On the basis of said report the SDM Civil Lines passed on order dated 25.5.1991 under sub-Section (1) of Section 145 of Cr.P.C, requiring the parties to attend his Court and put written statements in respect of their respective claims about the actual possession of the Bungalew in dispute. The SDM also ordered sealing of the disputed Bungalow, which was sealed on 10.7.1991. Hence this application. The applicant sought quash ment of the proceedings pending before the SDM under Section 145 Cr.P.C, and prayed for possession of the Bungalow in dispute.
3. Mr. Muhammad Sadiq learned counsel for the applicant argued that while passing the order about sealing of the disputed Bungalow in proceedings under Section 145 Cr.P.C., the SDM had ignored order of this Court passed in Civil Suit No.515 of 1991 on 16.5.1991. It was further argued that the case of Shah Nawaz and three others Vs Sub-Divisional Magistrate, Naushero Feroze (PLD 1974 Kar. 124) mentioned in order of the SDM, supported case of the applicant rather than that of the respondent No.2. Learned counsel for the applicant also cited the cases of Shah Muhammad Vs. Haq Nawaz and another (PLD 1970 S.C.470) and Mehr Muhammad Sarwar and others Vs. The State (PLD 1985 S.C.240).
4. Mr. Hashmat Habib learned counsel for the respondents 2 and 3 defended the orders passed by the SDM and argued that report by the SHO for action under Section 145 Cr.P.C, was in consequence of registration of FIR No. 2/91, which was registered under orders of this Court passed in C.P.D-533 of 1991. The main thrust of Mr. Hashmat Habib was that the consent order dated 16.5.1991 passed by this Court in a Civil suit, did not regulate possession. In respect of sale agreement dated 30.6.1989 in favour of the applicant, it was argued that the same was cancelled. It was also argued that the Bungalow in dispute was trespassed on 6.5.1991 and it was duty of the SDM under Section 145 Cr.P.C, to examine, as to whether any of the parties was forcibly dispossessed and then to order restoration of possession to the party dispossessed within the statutory period. Respondent No.2 was said to have obtained possession of the disputed Bungalow from police and he had engaged a company to guard the Bungalow. In support learned counsel for the respondents 2 and 3 relied on the case of Shah Nawaz and others (PLD 1974 Kar.124) Learned counsel for respondents 2 and 3 also cited the cases of Muhammad Yamin Vs. District and Sessions Judge D.I. Khan and others (1983 Cr. LJ. 2365), Abdul Qudoos Vs. Mangta (P.LJ. 1980 Cr.C.(AJ.K) 100) and Gul Khan Vs Muhammad Hafiz Khan and others (1992 M LD 2105).
5. Mr. Habibur Rashid learned counsel for A.G. Sind for State supported action of the SDM in initiating the proceedings under Section 145 Cr.P.C, and in passing the impugned order about sealing of the Bungalow. He was of the view that SDM be allowed to ascertain, as to who was in possession and who was dispossessed.
6. Since all the contesting parties relied on the case of Shah Nawaz and others (PLD 1974 Kar. 124 ) it is necessary to discuss that case first. In the cited case the main parties to proceedings under Section 145 Cr.P.C were the same, who were the parties in civil suit and in the order for maintenance of status qua. In said case a learned Single Judge of this Court observed that the proceedings under Section 145 Cr.P.C are in the nature of stop-gap arrangements and must in disputes as to immovable property yield to orders of the civil Courts, which alone are competent to determine questions of title and right of possession to immovable property. It was also observed that mere fact that a civil suit is filed or is pending in regard to the subject matter of the dispute, is not by itself sufficient to oust the jurisdiction of the Magistrate under Section 145 Cr.P.C. It was also observed that where a civil Court has passed an order in regard to any immovable property which is in dispute, whether such order was passed before or after the initiation of proceedings under Section 145 Cr.P.C, the Magistrate must respect such order, and any orders by the Magistrate in respect of the said property have to be subservient thereto. In the case of Shah Muhammad (PLD 1970 S.C.470) it was held that a Magistrate can not under section 145 of Cr.P.C, act in violation of a decree or the terms of an order passed by a civil Court during the trial of a suit, It was also held that the proceeding 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. It was also observed that a Magistrate will bot appoint a receiver, if the property in dispute is already in the possession of a civil Court and that Section 145 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 or an order regulating possession of the subject matter of the suit. In the case of Mehr Muhammad Sarwar and others (PLD 1985 S.C. 240) it was held that in an enquiry under Section 145 Cr.P.C all that a Magistrate is empowered to do is to regulate possession of the property in dispute for the time being, to avert the apprehension of breach of peace, but where the possession of the same property has been regulated by a civil court, even through a temporary injunction the matter falls outside the jurisdiction of the Magistrate under section 145 of Cr.P.C. In this case the observations made in the case of Shah Mohammad were followed.
7. As against this, learned counsel for respondents 2 and 3 relied on the case of Muhammad Yousuf (1992 P.Cr.L.J.1370) where the view taken t/as, that pendency of civil litigation between the parties in respect of the disputed property is by- itself no ground to oust the jurisdiction of a Magistrate to exercise powers under Section 145 Cr.P.C., but where the possession of the disputed property is regulated by an order of competent civil Court, the Magistrate should decline to interfere. This view was taken on basis of the cases of Shah Muhammad Vs. Haq Nawaz and another (PLD 1970 S.C.
470) Shera and others Vs. Mst. Fatimah and another (1971 SGMR 449), Shah Muhammad Vs. State and others (1983 SCM R 1173) and Mehr Muhammad Sarwar Vs. State and others (PLD 1985 S.C.240).
In the case of Gul Khan (1992 M LD 2105) the view taken was that a Magistrate should refrain from pa-ssing an order in derogation to the direction of Civil Court, In the same case it was observed that as against the scheme of Section 145 Cr.P.C, the disputes relating to title or right to possess land, water or boundaries there of are or civil nature and Civil Court alone was competent to decide such dispute. As per this authority the SDM Civil Lines should have refrained from passing any order in respect of the bungalow in dispute, in derogation to the direction of a civil Court, In the case of Muhammad Yamin (1983 P.Cr.L.J 2365) a learned D.B. Of Peshawar High Court held that any proceedings under Section 145 Cr.P.C, would be subject to any order made by a Civil Court. Learned D.B. Did not reject or disapprove the proposition of law raised before it that where an order of status quo was issued by a Senior Civil Judge any order passed under Section 145 Cr.P.C was uncalled for and was without jurisdiction . In the case of Abdul Qudoos (PLD 1980 Cr.C. (AJ.K. 100)) the view taken was that an order of attachment of a disputed land, can be passed at any stage or time during the proceedings by the trial court under Section 145 Cr.P.C. It was also observed in the same case that pendency of a civil suit between the parties may not become a bar to proceed under Section 145 Cr.P.C if the circumstances are such which require the interference of a Criminal Court to avoid a breach of peace over the subject matter of the dispute. This observation was subject to an exception to the effect that if a civil court appears to have taken such steps during the pendency of the civil suit which in a way are sufficient by themselves to stop the breach of peace to be caused.
8. In the present case nothing has been brought on record to show that an apprehension of breach of peace concerning the property in litigation existed to the extent that the breach of peace could not be avoided except by way of sealing the disputed bungalow. The respondent No. 2 was party to the consent order passed on 16.5.1991 in Civil Suit No.515 of 1991 and was bound by the same. By agreeing not to dispossess the applicant from the disputed bungalow save in accordance with law, respondent No. 2 appears to have conceded to the fact that the disputed bungalow on 16.5.1991 was in physical possession of the applicant. The order of this Court in Suit No.515 of 1991 as a Civil Court, is an order regulating possession of the disputed bungalow. Consequently it was not proper on part of the S.D.M, to sit above said order dated 16.5.1991 and order sealing of the bungalow in question.
9. For the foregoing reasons, I accept this Cr. Misc: Application and set aside order of the SDM directing sealing of the disputed bungalow and direct the SDM to had over physical possession of the disputed bungalow to the applicant. In case the respondent No.2 or respondent No.3 is dis- satisfied he can move the Civil Court and present order would be subject to any order that is passed by a Civil Court.