' Through this petition under section 561-A, Cr.P.C. The petitioners seek quashment of order, dated 15-7-1993 passed by the learned Additional Sessions Judge, Lahore whereby the learned Judge set aside the order of learned trial Judge, dated 16-2-1993 and remanded the case for proceedings after obtaining the written statements from the parties.
2. Briefly the facts are respondent No,1 filed a petition under section 145, Cr.P.C. For the restoration of possession to the respondent No,1 of the property in dispute measuring 16 Marlas out of Khasra No,1110 of Mauza Rakh Khamba (Jaffarabad), Tehsil and District Lahore on 16-8-1992 in the Court of learned Magistrate, Lahore with a further prayer of eviction of petitioner and meanwhile attachment of the property. The learned Magistrate attached the property and sealed it vide attachment order, dated 26-11-1992; as alleged in the petition; learned Magistrate neither issued any notice nor summoned the petitioners while passing the aforementioned order. Later on the respondent No,1 filed a suit for declaration with consequential relief of perpetual injunction against the petitioners alongwith an application under Order 39, Rules 1 and 2 read with section 151, C.P.C.
On 31-1-1993; temporary injunction was granted accordingly as prayed for by the learned Civil Judge, Lahore on 1-2-1993. The respondent No,1 further filed an application in the Court of learned Magistrate on 13-2-1993 in the Court of learned Magistrate, in whose Court the proceedings under section 145, Cr.P.C. Were transferred, to stay the proceedings under section 145, Cr.P.C. Till the final disposal of the declaratory suit pending in the Civil Court, Lahore. The learned Magistrate vide order, dated 16-2-1993 dismissed the application of the respondent No,1 and resealed the property; recalled attachment order and directed the parties to wait the decision of the Civil Court.
3. The respondent No,1 filed a revision petition under section 435/ 439-A, Cr.P.C. Against the aforementioned order of learned Magistrate; the learned Additional Sessions Judge accepted the revision petition vide order, dated 15-7-1993 by setting aside the order and remanded the case to the trial Court with direction to proceed with the case after getting the written statement of the petitioners; hence this petition.
4. It would be appropriate to mention the observations of learned Magistrate in order, dated 16-2- 1993 observed that there is no evidence on record whether the petitioner (respondent No,1) was ever in possession of the property and secondly that the complainant respondent No,1 Chief Engineer himself has not appeared and as there is no apprehension of breach of peace between the parties; hence the petition under section 145, Cr.P.C. Is not maintainable and therefore, the parties are directed to wait till the decision 'of Civil Court about their ownership.
5. The learned counsel for the respondent No,1 at the very outset raised preliminary objection that the petition under section 561-A, Cr.P.C. Is not maintainable and relied upon case Sarwar All v. The State 1983 PCr.LJ 329 wherein the learned Additional Sessions Judge while exercising his revisional jurisdiction under section 439-A, Cr.P.C. Remanded the case for trial to the learned Magistrate. It was observed that "in terms of subsection (4) of section 439, Cr.P.C. High Court is not competent to entertain any proceedings in revision with respect to any order made by the learned Additional Sessions Judge under section 439-A, Cr.P.C. This being so, to entertain the present petition for quashment under section 561-A, Cr.P.C. Would have the effect of circumventing the provisions of section 439(4), Cr.P.C." and advised the petitioner to approach the learned trial Magistrate under section 249-A, Cr.P.C. And further held "furthermore the provisions of section 561-A, Cr.P.C. Are invoked to redress the grievance where no other procedure is available or has been provided by the Code of Criminal Procedure. The power given by section 561-A, Cr.P.C. Can certainly not be utilized to divert the ordinary course of Criminal Procedure Code. It is well-settled that the High Court should be extremely reluctant to interfere at intermediate stages". Learned counsel further relied upon on the case of Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317 wherein it was held that it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Cr.P.C. In extraordinary case and are not intended for vesting the High Court with powers to make any order which they are pleased to consider to be in the interest of justice. While on the other hand, their Lordships in case of Muhammad Shafique and others v. Abdul Hayee and others 1987 SCM R 1371; after discussing the case PLD 1967 SC 317 (supra) and many other cases observed the jurisdictional requirements for the exercise of powers under section 561-A, Cr.P.C. Are:--
(i) To give effect to any order under the Criminal Procedure Code.
(ii) To prevent abuse of process of any Court.
(iii) To secure the ends of justice.
' Such a power cannot be exercised against the express language of the statute and it only preserves what is possessed or is inherent in the Court itself. The revisional power certainly goes beyond in so far as the propriety as is distinguished from the mere legality can also be examined therein. The powers possessed by the Courts under section 435/439, Cr.P.C. Do not impinge, curtail, or limit in any manner whatsoever the powers under section 561-A, Cr.P.C."
6. In view of the above observations, the contention of the learned counsel for respondent No,1 that the remedy under section 561-A, Cr.P.C. Is not available is without force and I am of the view that the application of the petitioner is maintainable.
7. The learned counsel for the petitioner vehemently contended that there was no breach of peace or likelihood of breach of peace on 10-11-1992 when the learned Magistrate passed the order of attachment and the order recalling the order of attachment, dated 16-2-1993; neither any proceedings under section 107/151, Cr.P.C. Were initiated by the local police or even by the respondent No,1 under section 107, Cr.P.C. Before the Illaqa Magistrate because there was no breach of peace or even not any likelihood of breach of peace; the mandatory provision of subsection (1) of section 145, Cr.P.C. Was not followed; further civil litigation between the same parties regarding the same property and on the same subject-matter is still pending before a competent Court of Civil Judge at Lahore in which stay order was passed on 1-2-1993 in favour of the petitioner and the respondent No,1 himself had moved application on 13-2-1993 for staying the proceedings initiated under section 145, Cr.P.C. Till the final decision by the learned trial Civil Court while the learned counsel for respondent No,1 controverted the arguments of learned counsel and.
Stated that it is not necessary that proceedings under section 107/151, Cr.P.C. Be initiated before proceeding under section 145, Cr.P.C. And criminal Court is also competent to adopt proceedings even during the proceedings of civil suit of competent Court of law.
8. I have heard the arguments of learned counsel for both the sides at length and have perused the record with their able assistance and have gone through the law cited at the bar.
9. In this matter, it is the case of respondent No,1, that on 9-7-1992 the petitioner accompanied by some 10/12 other persons armed with klashnikovs trespassed into the disputed property of the respondent's society and took over the possession thereof forcibly, illegally and wrongfully.
Respondent No,1 moved an application before the learned Magistrate on 16-8-1992; the learned Magistrate without giving any finding with regard to the issue which party was in possession of disputed property within two months next before the date of order and has been forcibly and wrongfully dispossessed by the other party; attached the property and sealed it vide its order, dated 26-11-1992. Further the respondent No,1 moved an application to the police authorities for registration of the case against the petitioner but in spite of application even to the higher hierarchy F.I.R. Was not registered against the petitioner. The trial Magistrate as laid down in case The Commissioner and another v. M. Sher Muhammad 1972 SCMR 305 and case titled Muhammad Akbar v. Additional Sessions Judge, Lahore and 3 others 1983 PCr.LJ 1355 is duty bound while proceeding under section 145, Cr.P.C. To decide as to which party was in possession of disputed property within two months next before the date of such order and when comes to the conclusion that any party has within two months next before the date of orders has been forcibly and wrongfully dispossessed by the other party, then it is obligatory for the Magistrate to restore its possession to the party. However, if the Magistrate considers the case one of emergency, he may at any time attach the subject of disputed property pending his decision under this section as held in case Muhammad Shafique and others v. Abdul Hayee supra (1987 SCM R 1371).
8. As regards the legality of the order passed under section 145, Cr.P.C. It is to be noted that the jurisdiction of the Magistrate under that section is dependent not on an application by a party or a report by police or information received from any quarter but it is dependent on his being satisfied that a dispute likely to cause breach of the peace exists.
9. Admittedly the civil litigation is pending between the parties in respect of the same disputed property and the suit titled Merja Din Riast Ali and others v. WAPDA Employees Cooperative Housing Society is also pending adjudication alongwith the suit of respondent No,1 between the parties and injunction in favour of the petitioner has been granted by the Civil Court on 1-2-1993; the suit of the petitioners against the respondent No,1 was filed much prior to the application under section 145, Cr.P.C., dated 16-8-1992. As the learned Magistrate vide his order, dated 16-2-1993 observed that there is no evidence on record whether the respondent No,1 was ever in possession of the property and there is no apprehension of breach of peace between the parties and directed the parties to wait till the decision of Civil Court while recalling the order of attachment and seal by his predecessor. The provisions of section 145, Cr.P.C. Read as a whole clearly indicates that there should be a continuing danger of a breach of peace till the time the final order is made. The use of word "exists" in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of section 145, Cr.P.C. As observed in case Fazal Haq and another v. M. Latif and others PLD 1985 SC 294; being the maintenance of public peace and the prevention of breach thereof it would follow that where there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the summary procedure provided by this section is no longer called for and should be put an end to.
10. The view taken by the learned Magistrate is in conformity with the dictum laid down in the cases of Shah Muhammad v. Haq Nawaz PLD 1970 SC 470 and Shah Muhammad v. The State and 5 others 1983 SCM R 1173 wherein 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 falls outside the jurisdiction of a Magistrate under section 145, Cr.P.C. The same view was held in cases Shera and others v. Mst. Fatima and another 1971 SCMR 440 and Mehr Muhammad Sarwar v. The State and others reported in PLD 1985 SC 240, the learned trial Magistrate rightly recalled the order of attachment and seal and directed the parties to wait till the decision of Civil I Court as the object of proceedings under section 145, Cr.P.C. Is only to prevent the breach of peace between the parties and not to facilitate one of them to settle their civil dispute as there is nothing on record to show that at any stage there was no breach of peace or likelihood of breach of peace. The view held by their Lordships in case Fazal Haq and another v. M. Latif and others PLD 1985 SC 294 (supra) the proceedings provided under section 145, Cr.P.C. Are no longer called for and should be put an end to.
11. In the circumstances, the petition is accepted. The remand order passed by the learned Additional Sessions Judge, Lahore, dated 15-7-1993 is set aside, the proceedings pending before the learned Magistrate under section 145, Cr.P.C. On the basis of remand by the learned Additional Sessions Judge are hereby quashed and his order, dated 16-2-1993 is restored with no order as to costs.