TASSADUQ HUSSAIN JILANI, J.- Through this quashment petition, the petitioner has challenged the order dated 6.4.1995 whereby Mr. Riazul Hassan Alvi ASJ Bahawalpur accepted respondents' revision and set aside the order dated 9.3.1995 passed by Extra-Assistant Commissioner/Magistrate lst Class Yazman ill rough which the said Magistrate had held the petitioner to be the actual owner of the Ihata in question and directed restoration of the said Ihata to her forthwith.
2. Brief facts leading to the filing of this petition are that as per averments made in the petition, petitioner's father Muhammad Ramzan entered into an agreement to purchase Ihata in dispute (measuring 2 Kanals 4 Marlas) from Ghulam Sarwar vide agreement dated 23.12.1974. Initially it was a State land and after the grant of proprietory rights i.e. 11.3.1990 petitioner's father asked Ghulam Sarwar to transfer the said land in terms of the afore-referred agreement. On this refusal, Muhammad Ramzan (petitioner's father) filed a suit for specific performance on 31 1.1991. The said suit was withdraw and a fresh suit was filed on 3.2.1992 in which, on 7.6.1992, an order of status quo was issued by the learned Civil Court.
It is alleged that the respondents forcibly ejected the petitioner on 18-6.1994 from the Ihata in dispute. The said incident was reported to police and a case was registered vide FIR No. 125/94, dated 18.6.1994 u/Ss. 452/379/148/149 PPC at Police Station Yazman. It is submitted that the petitioner moved the Assistant Commissioner concerned but it was of no avail. Consequently, on a miscellaneous application moved before this Court, the District Magistrate, Bahawalpur was directed to proceed u/S. 145 Cr.P. C. The District Magistrate, in tum, entrusted this case to the learned Magistrate who vide his order dated 9.3.1995 ordered restoration of petitioner's possession u/S. 145 Cr.P.C. This order was challenged in revision and vide the impugned order dated 6.4.1995, the learned Additional Sessions Judge, Bahawalpur set aside the same on the ground that as the matter was subjudice between the parties in a civil Court of competent jurisdiction there was no justification to interfere u/S. 145 Cr.P.C.
3. Learned counsel for the petitioner has raised following points in support of this petition:
(i) that proviso to subsection (4) of S. 145, Cr.P.C, does not lay down any period of limitation within which an aggrieved person has to move under the afore-referred provision;
(ii) that subsection (6) of S. 145 Cr.P.C, visualize two suggestions and petitioner's case fell in the first category;
(iii) that the pendency of a civil suit is no bar for initiation of proceedings u/S. 145, Cr.P.C.
(iv) that the respondents never went to the learned Civil Court for a stay order and they could not claim ouster of jurisdiction u/S. 145 of the Cr.P.C.
In support of his submissions, learned counsel relied on the following judgments:-
(i) 1969 P.Cr.L.J 759(Yunus Meah v. Abdur Rashid and 7 others)
(ii) 1987 SCMR 622 (Ghulam Murtaza and others v. The Sessions Judge, Leiah and others)
(iii) PLD 1980 Azad J&K 17 (Abdul Quddos v. Mangta)
(iv) 1988 P.Cr.L.J. 2268 (Haji Muhammad Ashraf v. The State)
(v) PLD 1987 Lahore 633 {Sh. Sardar Ali v. The State and another)
4. Learned counsel for the respondents, on the other hand, submits that the respondents .Were owner in possession of the disputed Ihata qua which petitioner had filed civil suit for specific performance against Ghulam Sarwar and that respondents were never party in the said suit.
However, he admits that they stand impleaded as party and the evidence of petitioner-plaintiff is complete and the respondents shall produce evidence on the next date of hearing. He further contended that as per petitioner's own showing she was dispossessed from the Ihata in dispute on 18.6.1994 and she did not move the learned Ilaqa Magistrate u/S. 145 Cr.P.C, within two months and these proceedings were initiated by the District Magistrate on the direction of this Court dated 26.12.1994 given in Crl. Misc. No. X05-M/94. According to the learned counsel, the proceedings and order of restoration of possession is not maintainable in view of the First Proviso to subsection (4) of S. 145 Cr.P.C, which reads as under:- "Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibl and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date."
The learned counsel relied on 1992 P.Cr.L.J. 2158 (Khalid Waheed Khawaja v. District and Sessions Judge), Karachi South and another) and 197i SCMR 581 (Imdad Khan and 7 others v. Syed Muhammad llyat and two others) to contend that two months having elapsed since the alleged dispossession from the Ihata in question no proceedings u/S. 145 Cr.P.C, were maintainable and the learned Additional Sessions Judge had rightly set aside the order passed by the learned Ilaqa Magistrate.
'5. I have heard the learned counsel for the parties and have also gone through the precedent case law which have been mooted at the bar.
6. In 1969 P.Cr.L.J. 759 (Yunis Meah v, Abdur Rashid and seven others) the law laid down is that "Magistrate on inquiry has to decide and give a finding as to which of the parties was in actual physical possession of the property on the date of preliminary order."
In PLD 1980 Azad J&K 17 (Abdul Quddos v. Mangta) it was observed that there was no bar to proceed u/S. 145 Cr.P.C, despite the pendency of civil suit "if the circumstances are such which require the interference of a criminal Court to avoid a breach of peace over the subject-matter of dispute."
In 1988 P.Cr.L.J. 2268 (Haji Muhammad Ashraf v. The State) the proceedings u/S. 145 Cr.P.C, had been challenged on the ground that qua the same subject-matter a civil suit was pending. The petition was dismissed on the ground dial as no order for injunction had been passed by any civil Court, the petitioner had a remedy of filing written statement before the criminal Court in proceedings u S. 145 Cr.P.C.
In PLD 1987 Lahore 633 (Sh. Sardar Ali v. The State and another), proceedings pending u/S. 145 Cr.P.C, were challenged. In this case the petitioner had. Been disposed from the property in question a day before his filing of application under section 145, Cr.P.C, and the Assistant Commissioner refused to pass any order as according to him "since the title of the disputed house as well as tobacco stored therein is disputed one, therefore, this Court is reluctant to pass any order regarding the disposal of tobacco. He therefore, directed the parties to settle their dispute regarding sale of disputed property and disposal of tobacco by knocking at the door of the competent Court which is the civil Court". This order was challenged in revision and the learned Sessions Judge remanded the case to the Assistant Commissioner with a direction to decide the matter afresh in accordance with law after providing the parties an opportunity to produce their evidence. In remand the Magistrate once again rejected the application for an action u/S. 145 Cr.P.C, on the ground that the agreement to sell which formed basis of his ownership had not been proved as no attesting witness was examined for proving the execution of the said agreement to sell. This order was once again challenged before the Court of Sessions who set aside the order of the Magistrate and directed him to take steps to restore the possession of the disputed house to the petitioner as also to restore the tobacco or its price to him. This order was challenged in the quashment petition and this Court upheld the order of the learned Sessions Judge to the extent of restoration of the house to the petitioner but set aside the order insofar as it directed the restoration of tobacco or its price to the respondents in that case.
In 1987 SCMR 622 (Ghulam Murtaza and others v. The Sessions Judge, Leiah and others), the Magistrate directed restoration of possession of the petitioner as he came to the conclusion that he had been dispossessed. The matter was also subjudice before a civil Court in an application filed u/S. 12(2) C.P.C, against the judgment and decree on the basis of which Bashir Ahmad was declared owner in possession of the property in question. The order of the Magistrate was challenged in revision before the District and Sessions Judge and the same was disposed. The order of the learned Sessions Judge was challenged in a Constitutional petition and ibis also met the same fate. The matter was taken to the Hon'ble Supreme Court in a CPSLA which too was dismissed and the august Supreme Court relaying on a judgment reported in 1983 SCMR 928 (Abdul Aziz and others v, Mian Rafiuddin) dismissed the petition holding that mere institution of a civil suit does not oust Magistrate's jurisdiction to proceed under section 145 Cr.P.C.
7. The fact's in the afore-referred precedent case law are entirely different and the case in hand is distinguishable. The precise question which has croped up lor consideration before this Court is whether proceedings u/S. 145 Cr.P.C, can be initiated and can an order be passed for restoration of possession of ,a person who has been disposed from the property in question on a date two months prior to the filing of the application u/S. 145 Cr.P.C.?
8. In 1991 P.Cr.L.J. Note 191 (Fazal-e-Hussain v. Faruq Ahmad and hi mi her) it was held "Facts as disclosed in report did not show that vendor/respondent was dispossessed within two months prior to filing of report- Application u/S. 145 Cr.P.C, having not been filed within two months from the date of alleged dispossession of respondent/vendor Court below had erred in taking action u/S. 145 Cr.P.C.-Proceedings pending against applicant/vendee u/S. 145 Cr.P.C, were quashed".
In 1987 P.Cr.L.J. 281 (Barkat Bhatti and 5 others v. The State and 4 others), proceedings were quashed on the ground and it was observed that "Petitioners admittedly in possession of disputed property for more than two months prior to passing of impugned order u/S. 145 (1), Cr.P.C." In this case, the property in dispute was subject-matter of litigation between both the parties in a civil Court and the learned civil Court had already granted an order of status quo. One of the parties got initiated proceedings u/S. 145 Cr.P.C, in the Court of Sub-Divisional Magistrate and these proceedings were challenged in revision before the learned Court of Sessions. The Sessions Judge relied on precedent case law and stayed the proceedings u/S. 145 Cr.P.C, till such time the civil Court decides the suit filed by the parties qua the same subject-matter. This order of the learned Sessions Judge was challenged as a Division Bench of Karachi High Court dismissed the petition and upheld the order of the learned Sessions Judge.
In 1971 SCMR 581 (Imdad Khan and 7 others v. Syed Muhammad Ilyas and 2 others). The order of the Magistrate appointing receiver qua the property in question was set aside (order was passed u/S. 145 Cr.P.C. ) as the matter was already subjudice before a civil Court.
In 1994 SCMR 379 (Muhammad Iqbal and others v. Abdul Bari and others), leave was granted by the Hon'ble Supreme Court against the remand order passed by the High Court whereby the Magistrate was directed to decide the matter afresh u/S: 145 Cr.P.C, notwithstanding the fact that the matter was pending adjudication In a civil Court and the Magistrate and Sessions Judge had found that there was no imminent breach of peace concerning the land in question.
9. The; analysis of the above-referred case law would indicate that the judicial requirements for assumption of jurisdiction u/S. 145 Cr.P.C, are the following:-.
(i) The existence of a dispute;
(ii) The said dispute is likely to cause breach of peace;
(iii) The dispute is concerning land/water/buildings/markets/fisheries/crops or other produce of the land and the rents or profits of such property;
(iv) Dispossession if alleged is within two months prior to the initial order passed by the Magistrate; and
(v) The dispute is within the territorial jurisdiction of the Magistrate concerned.
10. A perusal of the application given by the petitioner before the District Magistrate pursuant to an order of this Court dated 22.12.1994 passed in Crl, Misc. No. 805-M/94 shows that petitioner complained that respondents had taken forcible possession of the disputed Ihata on 18.6.1994 and that a case qua the said occurrence has been registered vide FIR No. 125/94 at PS Yazman.
Similarly the statement of the petitioner recorded before the Magistrate during proceedings u/S. 145 Cr.P.C, carries the same grievance that she had been dispossessed on the aforereferred date despite the fact that the matter was subjudice before a civil Court and the said Court had granted stay in her favour. The other witnesses examined by her, namely, Shamsul Haq (PW.3) and Muhammad Ramzan (PW. 4) corroborated PW. I and narrated more or less the same story.
11. When a District Magistrate or a Magistrate receives an information or a police report for proceedings u/S. 145 Cr.P.C, the first thing that he has to do under the law is to examine the information/report so received and if after conscious application of mind he is of the view that the dispute to which reference has been made in the report or information is likely to cause a breach of peace he shall make a speaking order with regard to the grounds on the basis of which he desires to proceed and thereafter he shall issue notice to the parties concerned for appearance and to put in written statement of their respective claims qua the actual possession of the subject of dispute. It is only after receiving their respective claims, written statements and the evidence that they wanted to adduce that the Magistrate shall pass an order in terms of subsection (4) to S. 145 Cr.P.C, and \ indicate as to which of the parties was in actual possession on the date when the initial order was passed. The proviso to this subsection stipulates that if it is in evidence that a party was dispossessed within two months next before the date of initial order passed by the Magistrate then he may treat the party so dispossessed as if he had been in possession at such date".
12. Subsection (6) to S. 145 Cr.P.C, provides that if the party was in possession or should be treated in possession in terms of subsection (4) then the Magistrate shall make an order declaring such party to remain in possession until evicted therefrom in due course of law. Thus this summary procedure makes arrangements for extending protection to possession of a party who was in actual possession when the first order was made by the Magistrate in proceedings u/S. 145 Cr.P.C.
Or the party was disposed within two months of the initial order.
13. Notwithstanding the afore-referred provisions of law, the Magistrate who passed order of restoration of possession did not pass any initial order stating therein the ground of his having been satisfied with regard to existence of dispute likely to cause breach of peace to warrant proceedings u/S. 145 Cr.P.C. A perusal of the final order dated 9.3.1995 passed by the Magistrate shows that he was more concerned with the merits of the claim of possession rather than the actual possession or the question of existence of dispute likely to cause breach of peace. The procedure adopted by the learned Magistrate, therefore, is not mandated in law. Neither in the application given by the petitioner before the District Magistrate nor in the evidence led by her before the learned Magistrate there was any reference to dispute likely to cause breach of peace.
A dispute simpliciter would not constitute a jurisdictional fact for an action under the afore- referred provision, In PLD 1969 Karachi 515 (Shamsuddin Ismail and others v. The State and others) a similar view was taken and the order passed by the Magistrate was set aside and it was observed as under:- " Satisfaction of Magistrate from police report or other information that dispute likely to cause breach of peace exists or existed-Condition precedent to exercise of jurisdiction under section- Complainant nowhere alleging in complaint that dispute likely to cause breach of peace exists or existed-Magistrate, in circumstances, held, could not take cognizance of case nor could he pass attachment order under subsection (4)-Magistrate would still have no jurisdiction should allegations be not supported by evidence."
Commenting on the procedure to be adopted by the Magistrate under subsections (4) and (6) to S. 145 Cr.P.C, the Hon'ble Supreme Court in 1985 SCMR 1235 (Mirza Abdul Razzaq v. Barkat Ali and others) observed as follows:- "Criminal Procedure Code (V of 1898)- -S. 145(4)(6), first proviso-Magistrate on satisfaction of jurisdictional requirements is required to decide any and which of the parties was at date of order in possession of property-Magistrate expressly precluded fr6m examining merits of claims of any such parties to a right to possess subject of dispute-Magistrate, however, is empowered to determine whether any party has been forcible and wrongfully dispossessed within two months before date of preliminary order, and if so, Magistrate could treat that party as dispossessed as if it had been in possession on such date- Jurisdiction of Magistrate is retained till an order of restoration of possession was passed where other requirements of law were satisfied-Such order was a necessary adjunct of proceedings and without that proceedings did not finally come to an end and Magistrate could not become functus officio losing seisin of matter."
14. Coming to the question as to whether the jurisdiction of a criminal Court is barred when a matter qua the same subject-matter is pending decision before a civil Court, I may observe, depends on the circumstances of each case. If the circumstances which emanate from the evidence on record are such as required interference of a criminal Court to avoid a breach of peace over the subject-matter, the criminal Court shall have jurisdiction to precede u/S. 145 Cr.P.C.
Similarly if a civil Court seized of the matter in dispute has passed no injunctive order qua the subject-matter in dispute proceedings u/S. 145 Cr.P.C, would be competent. The purposes behind this provision of law is to enable the Executive Authorities to maintain status quo till parties have their matter decided by a Civil Court of competent jurisdiction.
15. For what has been discussed above, the impugned order dated 6.4.1995 passed by Mr. Riazul Hassan Alvi, the learned Additional Sessions Judge, Bahawalpur whereby he set aside the order of Extra Assistant Commissioner/MIC dated 9.3.1995 does not disclose any legal infirmity to warrant interference. This petition, therefore, has no merit which dismissed.
16. Both the learned counsel requested that the civil Court be directed to decide the matter pending before it expeditiously. The request is reasonable. In the interest of justice I am inclined to direct the learned trial Court (Mr. Mukhtar Ahmad Khokhar, Civil Judge 1st Glass, Bahawalpur) seized of the case titled as Muhammad Ramzan v. Muhammad Ismail, etc. To decide the same expeditiously preferably by 30th November, 1995 under intimation to the Additional Registrar of this Court.