' M. S. H. QURES111, J.-This is a petition filed under section 561-A, Cr. P. C. For Quashment of the proceeding under section 145, Cr. P. C. Now pending in the Court of Magistrate Ist Class, Lahore. The circumstance leading to the filing of the petition is as follows. House bearing No, 14, on Karim Bakhsh Road, New Samanabad, Lahore, owned by Mst.
Bilqis Akhtar respondent No, 3, wife of lkram-ul-Haq respondent No, 1, had been rented out to one Ali Muhammad. The respondents had been pressing him to vacate the house and this had led to the filing of a case on 20-7-1975 by Ali Muhammad under sections 452/149 and 148, P. P. C. Against Ikram-ul-Haq. The matter was, however, compromised and on the basis of a police report to that effect the case was cancelled on 25-7-1975. In pursuance of the compromise, Ali Muhammad handed over possession of the house to the respondents on 27-7-1975 at 4 p m. On 29.7-1975 Ikram-ul-Haq respondent made an application to the Superintendent of Police, Cantonment Circle, Lahore, complaining that in the early hours of the night on that date, Ahmad Ali petitioner No, 2, and his son Anwar Javed petitioner No, 1 along with some others had committed criminal trespass in the house. On the basis of the application, F. I. R. No, 265 dated 30-7-1975 was recorded under sections 148 and 452/149, P. P. C. On 3-8-1975 S. H.
0., lahra P. S. Sent up a report to Ch. Ghulam Sarwar, the Ilaqa Magistrate, for action under section 107/150, and in view of apprehension of breach of the peace, also for attaching the property under section 145 (4), Cr. P. C. On 6-8-1975 the Magistrate ordered attachment of the house and adjourned the matter to 20-8-1975 for the parties to appear before him and to file their respective claims concerning the fact of actual possession. In pursuance of this order, the police sealed the house on 7-8-1975. The case was thereafter, at the instance of the petitioners, transferred by the Assistant Commissioner to the Court of Mr. Safdar Mahmood, Magistrate 1st Class, Lahore, on 22- 8,1975. The petitioners on 15-9-1975 applied for de-sealing of the property but the application was dismissed by the Magistrate by order dated 28-10-1975. In the course of passing this order, the learned Magistrate, to whose notice it had been brought by the respondents and confirmed by the S. H.
0. That the petitioners had re-occupied the house after it had been sealed, directed the S. H. O. To re-seal the house and called upon the petitioners to show cause against contempt proceedings against them. On 11-11.1975 the petitioners challenged the orders dated 6-8.1975 and 28-10-1975 for the sealing and re-sealing of the house, in revision before the High Court vide Criminal Revision No, 942 of 1975 but the same, not being pressed, was dismissed on 14-11-1975. On 26-11-1975 the petitioners moved an application in the High Court for transfer of the case, vide Criminal Misc. No, 707/T of 1975, but the same was dismissed in limine by our learned brother Gul Muhammad Khan, J.
On 28-11-1975. They then moved the present application on 2-12-1975 for quashment of the proceeding under section 145, Cr. P. C.
2. In the meantime, the petitioners had, on 21-11-1975, filed a suit for declaration and injunction before Sh. Nazir Ahmad, Civil Judge, Lahore. In the suit they had filed an application for temporary injunction. During tie hearing of that application on 25-11-1975, Mian Irshad Ma: mood, appearing for the resnondents-defendants, made a statement to the effect that the respondents had not attempted to eject the petitioners nor had they any intention of doirg so except in accordance with law. The very next day, the petitioners, however, complained to the Court that the respondents had tried to dispossess them with police help despite their assurance held out in the Court. On the basis of this representation and in the absence of the respondents, the learned Civil Judge, on 29-11-1975, passed order directing the respondents to abide by their undertaking and until further order not to eject the petitioners from the disputed house except in due process of law and also not to illegally interfere with their possession. He fixed 1-12-1975 for hearing the injunction application. On 4-2-1976, the application was, however, dismissed for non-prosecution. The petitioners filed appeal but the same was dismissed in limine by the Additional District Judge, Lahore, on 13-2-1976. A Civil Revision (No, 140 of 1976) filed in the High Court was likewise dismissed on 17-2-1976. It was brought to our notice that the suit itself was dismissed on 14-2-1976 for non-prosecution and an application filed on 17-2-1976 for its restoration is pending.
3. Mr. R. A. Awan, learned counsel for the petitioners, argued before us with some vehemence that in view of the pendency of the civil suit and the orders passed by the Civil Court on the injunction application, the proceeding under section 145, Cr. P. C. Had become untenable and as such was liable to be quashed. He sought support from the authorities in Shah Muhammad v. Haq Nawaz and another (1), Shah Nawaz and 3 others v. Sub-Divisional Magistrate, Naushero Feroze and 6 others (2) and M. Asghar Bashir Gora v. Hassan Khan (3). There can be no dispute with the proposition expounded in these authorities that where the possession of an immovable property has been regulated by a Civil Court, recourse to section 145, Cr. P. C. Is out of the question. The Supreme Court in the aforecited Shah Muhammad's case had further clarified that a Magistrate cannot act under section 145, Cr. P. C, in violation of a decree or the terms of an order passed by a Civil Court and that the proceedings, if any, 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.
But where the Civil Court has not regulated the possession, a proceeding under section 145, Cr. P. C.
Can be maintained. Since the Civil Court is essentially concerned with the rights of the parties in respect of the property, while the Criminal Court, under section 145, Cr. P. C. With the question of its possession in order to prevent a breach of the peace, the mere institution of a civil suit sill not oust the jurisdiction of the Magistrate under that section if the danger of breach of the peace exists and can best to averted by the summary proceeding under this section. In an old authority reported as Kishori Lal Roy v. Srinath Roy (4) it had been ruled that "the pendency of a suit under section 9 of the Specific Relief Act (I of 1877) with regard to certain land in dispute does not oust the Magistrate's jurisdiction to take proceedings under section 145 of the Criminal Procedure Code in respect of the same land, if he finds reasonable grounds for apprehending a breach of the peace".
A similar view had been taken in Dilbaz Khan v. The State (5), observing "And I have no doubt in my mind that the mere fact that a civil suit is filed in respect of the subject- matter of the dispute is by itself not sufficient to oust the jurisdiction of the Magistrate. By the filing of the civil suit, the dispute between the parties does not cease to exist and the likelihood of a breach of peace is not in any way lessened."
' This authority came in for comment in Mst. Asafa Sultana v. The State and another (6) where the learned Single Judge, although he dissented from the view taken so far as it laid down that the existence of an injunction
(1) PLD 1970 SC 470 (2) PLD 1974 Kar. 124
(3) 1975 P Cr. L J 7 (4) I L R 36 Cal. 370
(5) P L 1) 1959 Lah. 264 (6) 1969 P Cr. L J 1259 issued by a Civil Court of competent jurisdiction would be no bar to the institution of proceeding under section 145 of the Code, nevertheless agreed that it is true that the mere pendency of a civil suit will be no bar to proceedings under section 145 of the Code but when a Civil Court has regulated the possession by an interim order, the jurisdiction of the Magistrate disappears". In yet another case, i. e., Noor Muhammad and another v. The State and 2 others (1) it was likewise held "The admitted position is that in the suit pending between the parties the civil Court has not passed any order in the nature of injunction or otherwise regulating the possession of disputed property.
Therefore, it cannot be said that the Magistrate had no jurisdiction to take cognizance of the dispute under section 145, Cr. P. C "
' In the matter before us, the Civil Court, it is obvious, had not regulated possession of either party.
All it had done was to direct that the respondents would not eject the petitioners except in accordance with the law. It has to be kept in mind that the property had already been sealed under orders of the Magistrate prior to the institution of the civil suit and as the petitioners had reportedly entered the property in defiance of the Magistrate's order, the Magistrate had felt bound to enforce his order. It cannot be said that the order for sealing or re-sealing the property was not in due process of law. The petitioners had not even effectively challenged the Magistrate's order in the criminal jurisdiction. They had allowed their revision application (Cr. Rev. No, 942 of 1975) to be dismissed as not pressed.
4. Equally untenable is the next contention that the proceeding under section 145 could not be maintained while a parallel proceeding under section 107/150, Criminal Procedure Code, was continuing. Where the rights have been determined by a Civil Court or where the possession of a party is established and does not attract the proviso to subsection (4) of section 145, Cr. P. C., the proper course for the Magistrate would be to proceed under section 107 and not under section 145, Cr. P. C. Proceedings under section 107 are intended only for the security of public peace and not for enabling one of the parties to recover possession of the property. But where it is considered necessary that an order should be made relating to the possession of immovable property which is the subject-matter of the dispute, the proper course for the Magistrate is to proceed under section 145, Cr. P. C. It has to be noted that while the exercise of power under section 107 is discretionary with the Magistrate, the provision of section 145, is imperative and the Magistrate is bound to initiate proceedings if he is satisfied as to the existence of a dispute likely to cause a breach of the peace. The circumstances of the present case fully justified commencement of proceeding under section 145 and the same would not be rendered redundant merely because a proceeding under section 107 had also been initiated. Nonetheless it is possible to maintain simultaneously proceedings under both these sections. In King-Emperor v. Bashiruddin Mollah (2) it had been held : "In my opinion it cannot be held either as a general rule or in the present case that by the provisions of section 145, Cr. P. C., the Magistrate is deprived of jurisdiction under section 107, Cr. P.
C. The two sections give the Magistrate power to take proceedings to prevent a breach of the peace. It is easy to conceive a case in
(1) I? D 1971 Lath. 766 (2) 7 C W N 746 ' which an order under section 145, Cr. P. C., would not obviate the necessity to take proceedings under section 107, Cr. P. C., to prevent a breach of the peace even though the cause of quarrel between the parties was a dispute as to the right to a piece of land. Nor can I think the fact that the Magistrate may take proceeding under section 145, Cr. P. C., prevent him, if in his discretion he should think it right so to do, from taking proceedings under section 107, Cr. P. C."
' Similar view had been taken in Baisnab Charan Majhi v. Gatinath Munshi (1), Lachmandas Sanwaldas v. Sahibdino Budho Chhajra and others (2) and In re: Muthia Moopan and six others (3).
The question had come up for discussion at some length in Noor Muhammad and another v. The State and 2 others where it had been observed : "I am of the view that although sections 107 and 145, Cr. P. C., appear to overlap in some respects, yet they encompass two different situations. Section 107. Which also deals with the prevention of breach of peace, is altogether general in nature, whereas section 145, Cr. P. C., deals with specific case in which a dispute likely to cause breach of peace is alleged to exist, among others, regarding immovable property. In this view section 145, Cr. P. C., which is special in nature, would apply to the present controversy in preference to section 107, Cr. P. C.
' The other reason, for which this conclusion can be supported, is that unlike the proceedings under section 145, Cr. P. C., the Magistrate, while seized of a cause under section 107, Cr. P. C., cannot adjudicate upon the question of disputed possession regarding immovable property. However, it is not inconceivable, the present case being the concrete example that during the pendency of proceedings under section 145, Cr. P. C., in which the Magistrate has not passed any interim order of attachment of the disputed property under the second proviso of that section, a situation might arise which is likely to lead to the breach of peace between the parties. To remedy such a situation the better course appears to be that an information should be laid before the Magistrate, who, if satisfied that the alleged situation is likely to cause a breach of peace, might attach the property during the pendency of the proceedings and thus bring to an end the possibility of any further chances leading to the breach of peace. If in a given case, such as the present one this procedure was ignored and resort made to the proceedings under section 107, Cr. P. C., then the consequent decision of the Magistrate would in no way affect the proceedings under section 145, Cr. P. C., in which he is bound to decide upon the question of disputed possession."
5. It had also been argued before us that the Magistrate's order was wanting in reason for attaching the property. A mere perusal of the orders dated 6-8-1975 and 28-10-1975 repels the contention. In his order dated 6-8-1975, for sealing the property, Ch. Ghulam Sarwar, Magistrate 1st Class, Lahore, had observed "It is also evident from the facts of the case that there is an immediate apprehension of breach of peace on account of this dispute over the
(1) I L R 39 Cal. 469 (2) AIR 1936 Sind 147 (3) I L R 36 Mad. 315 said house. . . . The situation looks explosive and if proper action is not taken immediately some untoward incident may take place."
' Similarly in the subsequent order dated 28-10-1975 for re-sealing the property, Mr. Safdar Mahmood, Magistrate 1st Class, Lahore, had noted : "The conduct of both the parties while present in the Court is such that there seems to be every apprehension of breach of peace between the parties. This apprehension is further strengthened when we see that Ikram-ul-Haq etc. Are residing quite near to the disputed house."
' For both these observations, the learned Magistrates had material in the police reports before them. In any case, detailed reasons are not required. It will be relevant to cite here the observation of the Supreme Court in Muhammad Ishaque Chowdhury v. Nur Mahal Begum and another (1) reproduced below : "If there exist such materials, then the mere omission to state the grounds of satisfaction will not vitiate the order. In such a case it must be held that there has been substantial compliance with the requirements of the provisions of section 145 of the Code and that the defect is merely a technical defect-"
' This authority has been followed in Muhammad Nawaz v. Ghulam Kadir and 3 others (2). A similar view had been taken, independent of the aforesaid Supreme Court authority, by the Dacca High Court in A. Razzak and others v. Abdul Majid Mona and others (3), where it had been held : "It is true that satisfaction of the Magistrate as to existence of breach of peace concerning possession of land within his jurisdiction confers upon him the jurisdiction to make an order under section 145, Cr. P. C. That satisfaction need not be stated in express words. If it can be gathered from the grounds discussed by the Magistrate in his order that he was satisfied this amounts to his satisfaction."
' Even otherwise, failure to give reason is no ground for quashment of the proceeding itself.
6. In the result of the above discussion, we find no merit in this petition which we accordingly dismiss.
(1) PLD 1961 SC 426 (2) 1975 P Cr. L 80
(3) 1969 P Cr. L 1 233