MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, has been preferred against an order recorded by the High Court on September 26, 1996, whereby the revision petition filed by respondents, herein, against the order of Sub-Judge/Magistrate 1st Class, Hattian Bala, passed on May 16, 1996, was accepted and the case was remanded to the trial Magistrate for deciding it after inquiry, in accordance with law.
2. The precise facts, forming the background, of the present appeal are that on the application moved by respondents at Police Station Leepa a complaint under section 145, Cr.P.C., was filed by Prosecuting Inspector in the Court of Sub-Judge/Magistrate 1st Class, Hattian Bala, praying therein that the land in dispute be attached and necessary proceedings be initiated under section 145, Cr.P.C. On the receipt of the above information, the learned trial Magistrate issued notices to non- applicants, the appellants herein. On account of apprehension of breach of peace, the land in dispute was attached. The non---applicants appeared before the trial Magistrate and filed their objections praying therein that the order of attachment may be vacated. The learned trial Magistrate, after hearing both the parties vacated the attachment order earlier passed by him and dropped the proceedings under section 145, Cr.P.C. The above order of the trial Magistrate was made a subject of revision before the High Court by the respondents and the High Court vide its order impugned in the present appeal accepted the revision petition and remanded the case to the trial Magistrate to decide it after making an inquiry as stipulated under section 145, Cr.P.C.
3. Mr. Ghulam Mustafa Mughal, the learned counsel for the appellants, vehemently contended that the trial Magistrate on a simple application moved by the respondents on the basis of which a complaint was lodged by prosecuting inspector, attached the subject of dispute without satisfying himself with regard to the apprehension of breach of peace as being emerged in nature. The learned counsel submitted that it was enjoined upon the trial Magistrate to satisfy himself on the basis of material placed before him as to whether a genuine dispute with regard to the possession of disputed land existed and after his satisfaction to give notices to the concerned parties to put in their respective claims with regard to the possession of the subject of dispute but the learned Magistrate failed to observe the mandatory provisions of section 145, Cr.P.C. The learned counsel strenuously contended that with regard to the disputed land the appellants filed two civil suits respectively on 24-3-1996 and 23-4-1996. In these suits filed by the appellants, the temporary injunction maintaining the status quo of the suit land had already been issued by the learned Sub- Judge. Not only the civil suits filed by the appellants were pending before the Sub-Judge and the temporary injunctions had already been issued but a counter-suit was also filed by the respondents which was, though, dismissed for non-prosecution but nevertheless an application for restoration of the suit was pending disposal before the Sub-Judge. In the estimation of the learned counsel for the appellants when the possession of the disputed land had already been regulated by the Civil Court the assumption of jurisdiction by the Magistrate in proceedings under section 145, Cr.P.C., was not warranted by law. According to the learned counsel, the High Court, thus, committed an illegality in directing the trial Magistrate to proceed with the application under section 145, Cr.P.C.
4. On the other hand, Sh. Abdul Aziz, the learned counsel for the respondents, seriously controverted the contentions raised by the learned counsel for the appellants on all the scores. Both the learned counsel for respondents and Mr. Shiraz Kiyani, the learned Advocate-General, appearing for the State, contended that filing of a civil suit was no bar to the proceedings initiated under section 145, Cr.P.C. While elaborating their point of view it was contended that section 145, Cr.P.C., was meant to a situation where there was an imminent apprehension of breach of peace and to prevent Law and Order situation; the course thus adapted by the learned trial Magistrate in proceeding under section 145, Cr.P.C., and the impugned order passed by the High Court were perfectly valid warranting no interference by this Court.
5. We have given our due consideration to the arguments canvassed at Bar and perused the record made available with care. The point that needs resolution by this Court is as to whether after the possession having been regulated by the Civil Court by entertaining suits and issuing an ad interim relief for maintaining the status quo of disputed land, the trial Magistrate was still vested with the jurisdiction to proceed under section 145, Cr.P.C., with the same subject-- matter. Similarly in view of cognizance of the subject-matter by both the Courts i.e. The Criminal Court and the Civil Court, whose order will ultimately prevail and determine the rights of parties conclusively.
6. Normally when the District Magistrate, Sub-Divisional Magistrate or Magistrate of 1st Class is satisfied from a police report or other information that dispute likely to cause a breach of peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader within a time fixed by such Magistrate and to put in written statement of their respective claims in respect of fact of actual possession of the subject of the dispute. Under subsection (4) of section 145, Cr.P.C., the Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the fact of such evidence, take such further evidence if any as he thinks necessary and if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject or two months before that. Again under proviso second if the Magistrate considers the case one of emergency he may attach the subject of dispute pending his decision under this section.
7. The requirement of section is that Magistrate must be satisfied with regard to a dispute likely to cause breach of peace and that which party is in possession of the subject of dispute or two months prior to the filing of the application but we have noticed that the Magistrate at the time of passing an order for attachment of the disputed land was simply impressed by the report forwarded by the prosecuting inspector, though the report was not accompanied by any of the material showing that there was an imminent danger of breach of peace or that the applicants were in possession of the subject of dispute on the day or two months prior to the passing of the order. It is also noticed on the objections filed by the non-applicants (appellants herein) that the order of attachment was set aside in absence of any material brought on record with regard to non-existence of breach of peace or with regard to the possession of the subject of dispute on the relevant date. Be that as it may, it was specifically alleged by the appellants herein in their objections before the trial Magistrate that with regard to the subject of dispute two civil suits were pending in the Civil Court filed by them and a counter-suit filed by the respondents. It was also brought to the notice of the trial Magistrate that possession of the subject of dispute had been regulated by the Civil Court in issuing the interim injunction in terms of status quo of the suit land to be maintained in the suits filed by the appellants.
8. It is indeed correct that section 145, Cr.P.C., is so couched as not to be appreciated easily by the Magistrate performing their functions in far flunged backward areas. At a time there used to be divergent views of the High Court Azad Jammu and Kashmir recorded in different cases under section 145, Cr.P.C. One view was that the jurisdiction of Magistrate to attach the subject of dispute under section 145, Cr.P.C., is not excluded even in presence of a recent decree of Civil Court for perpetual injunction or an order regulating the possession passed in terms of ad inter in injunction, upholding the possession of one of the parties to the proceedings whereas the counter-view was that in order to avoid conflicting decisions on the same matter proceedings under section 145, Cr.P.C., should not be allowed when the matter is simultaneously taken to a Civil Court but by now has controversy stands settled by a reported judgment of this Court in a case titled ' Suleman Khan v. Abdul Aziz and 3 others' 1983 PCr.LJ 2590, wherein it was held at pages 51 and 52 of the report in the following manner:--- "We have already noticed that under subsection (4) of section 145, Cr.P.C., the introduction of the words 'if possible' and incorporation of the proviso under subsection (2) of section 146, Cr.P.C., clearly reflected that the order of the Magistrate, whether under section 145, Cr.P.C., or 146, Cr.P.C., is not only subject to the decision of a competent Civil Court, but it also provides that the moment Civil Court takes a step to regulate the possession of the subject of dispute by appointment of a receiver, the order of the Magistrate automatically gives way to the order of Civil Court as the Civil Court is vested with power as final arbiter. Therefore, it is wrong to suggest that it is nowhere laid down under section 145, Cr.P.C. That the Magistrate is divested of his power in presence of civil proceedings or when the possession is regulated by a temporary injunction or in presence of a recent decree for the perpetual injunction. The Magistrate acting under section 145, Cr.P.C., is under an obligation to respect any recent decision concerning possession of the subject, given by a competent Civil Court. In case such a decision is not given due consideration and weight the action of Magistrate shall not only be derogatory to the norms of administration of justice, but it may also culminate in disastrous results. To give importance to the recent decree of the Civil Court or an interim order in the terms of appointment of the receiver of issuance of ad interim injunction, is also a question, of judicial propriety. Thus, the position finally comes to this that the Magistrate is, of course, competent to initiate proceedings under section 145, Cr.P.C., when he is satisfied from any information that there exists likelihood of breach of the peace concerning the possession of land or water or the boundaries thereof and he is within his jurisdiction to constitute an inquiry in order to determine the question of factum of possession, but the power of the Magistrate is restricted in the manner that he is excluded to advert into scrutiny of the merits or the claims of the parties of aright to possess the subject of dispute. Secondly, when merits or claim to a title or right to possess the subject is recently settled by a competent Civil Court the Magistrate shall give effect to such a recent decree concerning the question of possession and shall maintain the possession acquired by either party in the light of such decree and its execution in due course of law. Likewise, the Magistrate shall avoid interference into possession of the subject by having a recourse to attachment in presence of an order of competent Civil Court of appointment of a receiver of issuance of ad interim injunction. But mere institution of a civil suit may not necessarily stop the hands of the Magistrate to inquire into the question of possession when other conditions contained under the section are fulfilled."
The next question pertinent to proposition is as to what remedy is available to avoid likelihood of breach of the peace of presence of the recent decree of the Civil Court concerning the possession or an order regulating the possession for interim period? The proper answer is that when the question of possession of tire subject is settic6 by the decision of a competent Court or its possession is regulated in one of the aforesaid manners, during the pendency of the civil proceedings on information of likelihood of breach of the peace, the Magistrate within his power to proceed against the disturbance makes under section 107, Cr.P.C. It is well-admitted that the provisions section 107, Cr.P.C., which are general in character, are even attracted in such-like cases.
Besides that in case of a trespass or forcible dispossession of the rightful owner, the Magistrate is equally competent to proceed against the accused for commission of substantive offence."
PLD 1970 SC 470, the Supreme Court of Pakistan spoke for the relevant proposition --page 481, in the following way:--- ---The provisions of the tyro Codes set out above have a material bearing, on the question whether a Magistrate can, under section 145 of the Criminal Procedure Code act to violation of a decree or the terms of an order passed by a Civil Court during the trial of a suit. It becomes apparent at once that the proceedings 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.
The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning 'land' on water'. These proceedings though concerning the subject--matter of dispute between the contending parties, do slot concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a Civil Court. The orders passed by a Magistrate for attachment of the subject-matter of dispute are therefore, of a transitory nature. That is why a Magistrate will not appoint a receiver if the property in dispute is already in the possession of a Civil Court through a receiver appointed by it and the receiver appointed by a Magistrate must make over possession to the receiver appointed by a Civil Court subsequently. Section 145, therefore, 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 declaring the rights of the parties therein or has passed an order regulating possession of the subject-matter of the suit. In such a case, if apprehension of breach of peace prevails, the Magistrate can take action under sections 107 and 151, Cr.P.C., and bind down the party threatening to act in violation of the decree of the Court or the terms of an interim order appointing a receiver or requiring the parties to maintain status quo. A contrary position will indeed lead to anomalous results."
PLD 1985 SC 240, the Supreme Court of Pakistan observed at page 542 as under:---- ---It requires to be mentioned that in an inquiry under section 145, Cr.P.C., all that a Magistrate is ultimately empowered to do is to regulate the possession of the property in dispute for the time being, so that the apprehended breach of peace is averted. But as held by this Court in Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 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 learned Magistrate under section 145, Cr.P.C.
9. From the case-law cited above, it becomes abundantly clear that in order to avoid conflicting decisions on the same matter proceedings under section 145, Cr.P.C., should not be allowed when the matter is simultaneously taken to a Civil Court. Another substantial reason is that ultimately the decision of the Civil Court is to prevail either with regard to the possession or right to possess certain property. Thus, in presence of both the litigations, the civil litigation should be resorted to wherein the rights of parties are conclusively resolved. The learned counsel for respondents also relied on the reported case of ' Suleman Khan v. Abdul Aziz and 3 others' which is reported in 1983 PCr.LJ 2590 which we have already discussed and the same is reported in PLJ 1984 SC (AJ&K) page 47.
10. For the afforestated reasons, we accept the appeal and set aside the impugned order recorded by the High Court with the direction that the parties may get the determination of their rights with regard to the disputed land from the Civil Court, wherein their suits are pending disposal.