' Through this pDetition, Abdul Qadir etc., petitioners herein, seek quashment of the order, dated 14- 11-1989 passed by learned Civil Judge/Magistrate Section 30, Khanewal whereby he initiated proceedings under -section 145, Cr.P.C. And ordered attachment of Ahata No,2 situated in Chak No,2/10-R, Pirowal, Tehsil Mian Channu -was ordered to be attached till the question of its ownership or possession is determined by a competent Court or authority.
2. This case has a long history of litigation between the parties. The brief facts culminating into initiating proceedings under section 145, Cr.P.C. Are that Sher Muhammad lodged a report on 29- 10-1987 with the police stating that he was residing in Ahata No,2 in Chak No,80/10-R, Pirowal. The petitioner Abdul Qadir alongwith other persons committed assault and caused injuries to him. A case was registered under section 506/452/448/148/149, P.P.C. At Police Station Sadar, Khanewal.
During the course of investigation it was found by the police that both the parties i,e, Abdul Qadir petitioner and Sher Muhammad respondent are claiming the possession and ownership of the Ahata. Since breach of public peace was apprehended, therefore, a complaint (Kalandra) was submitted in the Court of Mian Khalid Saeed Akhtar, Civil Judge/Magistrate Section 30, Khanewal.
Sher Muhammad and 5 others were cited as one party and Abdul Qadir alongwith 13 of his partymen, petitioners herein, were cited as second party to the dispute. The learned Magistrate initiated the proceedings. He referred to the history of the case wherein various events regarding change of possession of the Ahata were enumerated. The report of the police and other relevant material was taken into account alongwith the statements made by the witnesses. The learned Magistrate after passing a detailed order came to the conclusion that the Ahata in dispute was owned by the Provincial Government and according to him it could not be determined as to which of the parties was entitled to keep its possession. Therefore, the Ahata was attached till any order is passed with regard to the possession and ownership of the Ahata by any competent Court or authority, vide order, dated 14-11-1989. An appeal was preferred against that order before the learned Additional Sessions Judge, Khanewal which was dismissed on 4-2-1991, as such the order, dated 14-11-1989 was upheld and maintained. It is however, not clear whether any appeal against that order was available or not. Since the same has not been disputed, no elaboration in that behalf is called for.
3. Learned counsel has assailed the impugned order on various grounds e.g. According to him the learned Magistrate has not given the grounds of his satisfaction nor any formal notice was issued to the parties, therefore, the whole proceedings stood vitiated. Reliance has been placed on 1973 PCr.LJ 794 and PLD 1974 Quetta 21. Another argument has been advanced stating that to attach a property, dispute simpliciter is not sufficient but the dispute must be of a nature which is likely to cause breach of peace. In support of his contention reliance is placed on 1968 PCr.LJ 1882 wherein it was observed that there was marked difference between a dispute and a dispute likely to cause breach of peace. There may be a number of disputes between the parties claiming possession or ownership of certain property but every dispute does not give rise to proceedings under section 145, Cr.P.C. Unless it is genuinely and reasonably apprehended that the dispute is likely to give rise to breach of peace. Only then to prevent and avert the breach of peace the property in dispute is attached or receiver is appointed whatever the case may be. The order has been assailed on other grounds as well that the learned Magistrate has not correctly appreciated the evidence produced by the parties although there was overwhelming documentary and oral evidence in favour of the present petitioners i,e, Abdul Qadir and others yet their possession was not maintained or safeguarded but the property was erroneously attached to the detriment of the petitioners.
4. I have considered the abovesaid arguments and have gone through the various citations quoted by the learned counsel. Since the impugned order was passed in the year 1989, the discussion on the above points would be merely an academic discussion. The question to be determined is whether the impugned order should be maintained as has been passed. Invariably the proceedings under section 145, Cr.P.C. Are meant to prevent a breach of peace and with a view to avert any dispute as a precautionary measure. When the property in dispute is attached, such order is always subject to order passed by the competent Court or forum determining the rights of the parties, as has been observed by the learned Magistrate himself. Learned counsel has annexed with this petition various documents to establish that Abdul Qatlir sort of Allah Bakhsh etc. Are the persons who are entitled to be given the Ahata in dispute. In support of his claim, he has referred to the report of the Local Commissioner, dated 7-11-1989 indicating that at the time of attachment of the Ahata, Abdul Qadir was in possession of the same. He has also annexed some documents from the Revenue Record to show that the petitioners were in possession of the Ahata and they are legally entitled to retain the same. Most important of the documents is the order, dated 16-2-1978 passed by learned Member, Board of Revenue, Punjab, Lahore. Although the learned Magistrate during the course of his discussion has referred to the report of Local Commission as well as the order of learned Member, Board of Revenue but he did not appreciate the significance and importance of the order passed by the Board of Revenue. The Ahata in dispute is owned by the Provincial Government, therefore, Board of Revenue is the authority to allot or pass any order with respect to its ownership or possession. The order of attachment is invariably a conditional order as has been expressed in the present case as well. This order of course is subject to final order to be passed by the authority. In fact the order in favour of Abdul Qadir petitioner and others is present on the file. According to para. 3 of the order, dated 16-2-1978, it has been observed that:-- "The respondents are non-proprietors and have been in possession of the Ahata long before 20-12- 1973 and have built houses on it where they are permanently residing. They are, therefore, entitled to retain the Ahata in term of section 3 of the Housing Facilities for Non-Proprietors in Rural Area Act, 1975."
' Section 3 of the Punjab Housing Facilities for Non-Proprietors in Rura1 Areas Act, 1975 is reproduced:-- "3. Government may grant land free of cost not exceeding five Marlas in area on such terms and conditions as it may deem fit, to every non-proprietor family living in rural areas at the time of the commencement of this Act in the revenue estate in which such family is living for the time being for the purpose of residence: ' Provided that village Shamlat land, or land in Abadi Deh whereupon a non-proprietor family has built a house on or before 20th December, 1973, with a view to taking up permanent residence, may after acquisition be granted free of cost to the said family irrespective of the limit of five Marlas.
' Explanation-- For the purpose of this section ' family' shall mean husband and wife or either of them and their unmarried children, if any."
The order passed by the Board of Revenue as such has sanctity of the law behind it. Since Abdul Qadir and others have been held to be entitled to retain C possession of the Ahata by the Board of Revenue which is the highest Court in the revenue hierarchy. They are as such entitled to retain possession of the Ahata. If a party is held to be rightful owner or is entitled to have possession of some property by the competent authority then its possession has to be protected and safeguarded. In case of any dispute relating to that property the proceedings under section 107 or 151, Cr.P.C. May be taken but right of ownership and possession has to be protected by the Court and the law enforcing agencies. The disputed property can be attached only if it cannot be determined as to which of the parties is entitled to its possession, then as an interim measure and that too only to save the parties from breach of peace, the property is attached. The same cannot acquire or attain permanence. Learned counsel has in this behalf relied on PLD 1985 SC 495 and PLD 1970 Lah.
205.
5. The upshot of the above discussion is that this petition is accepted, the impugned order, dated 14-11-1989 passed by the learned Civil Judge/Magistrate Section 30 is set aside and the case is remanded back to the learned Magistrate to deseal the Ahata and induct Abdul Qadir etc., petitioners in its possession as has been held by the learned Member, Board of Revenue in his order, dated 16-2-1978 passed in ROR No,986/71-72 titled Kanwar Muhammad Khan v. The State and 11 others (Annexure "F" to this petition).