' SH. IJAZ NISAR, J.---This petition is directed against the order, dated 17-7-1997, passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, dismissing Criminal Miscellaneous Petition No,61-Q of 1997, whereby quashment of judgment, dated 5-7-1995, passed by the Additional Sessions Judge, Islamabad, was sought.
2. The facts in brief are that Muhammad Khurshid Khan petitioner had moved an application before the Assistant Commissioner City, Islamabad, on 9-1-1993 for restoration of possession of shop to No,26, Civic Centre Markaz G-6, Islamabad, from which he had been allegedly forcibly dispossessed on 8-1-1993 by Asif Raza Mir respondent. The petitioner alleged that the respondent had delivered possession of the said shop to him in pursuance of a sale agreement and when he was out of the city, the respondent broke open the lock of the shop and trespassed into it for which a case under sections 448, 506/34, P.P.C. Was registered against him at Police Station Aabpara, Islamabad.
3. Acting on the basis of the report dated 11-1-1993 of the local police, about the party in possession of the disputed shop on the relevant date, the A.C., Islamabad, directed the police, to hand over possession, to the petitioner, under section 145, Cr.P.C. The respondent challenged the said order by filing a revision petition in the Sessions Court, Islamabad. The same was allowed and the case was remanded to the Assistant Commissioner City, Islamabad, with the following directions:--
(1) The Magistrate shall look into the petition as to whether it disclosed breach of peace, if not, he shall abstain to proceed under section 145, Cr. P .0 .
(2) On being satisfied from contents of the petition, he shall hear the parties and examine their written statements to ascertain claim of actual possession as required under section 145(4), Cr.P.C.
And then to pass fresh order in accordance with law.
(3) He shall hand over the possession of the shop accordingly.
(4) The parties are directed to appear before the learned trial Court on 7-7-1991.
4. The Assistant Commissioner directed the S.H.O. To deliver back the possession of the shop in dispute to Asif Raza Mir. Aggrieved by the said order Muhammad Khurshid Khan filed a revision petition, which came up before the learned Sessions Judge, Rawalpindi, who vide order dated 7-3- 1996 set aside the order passed by the Assistant Commissioner and directed that the application dated 9-1-1993 moved by Muhammad Khurshid Khan respondent be strictly dealt with under the provisions of section 145, Cr.P.C. By adopting all the legal courses as envisaged under that section.
The matter was entrusted to Mr. Jam Inamullah, Assistant Commissioner (Saddar), Islamabad. By order dated 12-12-1996 he held that the case did not fall under the scope of section 145, Cr.P.C., because there was no immediate threat to peace and since the issue was primarily of civil nature, the parties should approach the Civil Court for determination of the controversy.
5. Asif Raza Mir respondent filed Criminal Revision No,3 of 1997 in the Sessions Court, Islamabad, which was allowed and the case was again remanded to the Assistant Commissioner, Islamabad, for disposal in accordance with law and the observations made by the learned Sessions Judge, Rawalpindi, in his order dated 7-3-1996.
6. Now it was the turn of Muhammad Khurshid Khan respondent to challenge the said order. He, accordingly, filed Criminal Miscellaneous No,61-Q of 1997 in the High Court, seeking quashment of the order dated 5-7-1997, passed by the learned Sessions Judge, Islamabad. The learned Single Judge in Chambers dismissed the petition in limine and directed the learned trial Court to accelerate the proceedings and finally dispose of the same within a period of two months. The learned Judge depreciated the conduct of the petitioner. The relevant paragraphs of the order passed by him are as under:-- "Before attending to the submissions of the learned counsel for the petitioner, it will be necessary to keep in view the important factor i,e, the conduct of the petitioner. The petitioner himself initiated proceedings under section 145, Cr.P.C. Alleging that he was dispossessed from the shop, therefore, possession be delivered to him. Pursuant to the proceedings under section 145, Cr.P.C., the possession was given to him under the orders of the learned Assistant Commissioner subject to final decision in those proceedings. Now when the petitioner has made use of these proceedings for dispossessing the respondent, he intends to challenge the same proceedings on the ground that the Criminal Court could not deal with the matter or restore the possession to the respondent.
It is settled rule that an act of Court shall not prejudice any one. It is also a settled rule that no one can make use of order of the Court for his benefit and deprive the other of his right and then to insist the others should not be heard or the Court should not remedy the wrong caused to the other side from the act of the Court. The petitioner's conduct is highly objectionable ...
' Feeling aggrieved by the High Court's order Muhammad Khurshid Khan petitioner has filed this petition in this Court.
7. It is contended that order of the High Court has resulted in great miscarriage of justice and it failed to properly consider the legal proposition that dispute about an immovable property is ultimately regulated by the Civil Court and not by criminal proceedings under section 145, Cr.P.C. It is further contended that the High Court also failed to consider that the suit for declaration and specific performance of agreement pertaining to the property in question had been decreed by the Civil Court in favour of the petitioner.
8. Learned counsel appearing on behalf of Asif Raza Mir respondent has vehemently contested the petition and stated that the decree passed in favour of the respondent only provides a direction for the transfer of the shop in question to the petitioner and nothing beyond that, and that till such transfer takes place the petitioner cannot claim any title in the said property. He maintains that even the execution of the said decree has been suspended by the Division Bench of the High Court in R.F.A. No,136 of 1996.
9. After hearing the submissions of the learned counsel for the parties, we are of the view that the matter is still sub judice and the petitioner having taken possession by invoking jurisdiction of the Magistrate under section 145, Cr.P.C. Cannot be permitted to say that with the changed circumstances the Magistrate is now unable to determine the issue in accordance with law. In the above circumstances, it had been rightly observed by the learned Single Judge that the directions given by the Sessions Court to ascertain the scope of section 145, Cr.P.C. And to ascertain the claim of actual possession was required to be examined. We are also of the view that the jurisdiction of Magistrate under section 145, Cr.P.C. Is dependent on his being satisfied that a dispute likely to cause breach of peace exists and further proceedings or nature of the orders to be passed by him are conditoned on the said satisfaction.
10. For the foregoing reasons, we do not find any legal infirmity in the order of the learned Judge of the High Court and, consequently, dismissed the petition with the direction to the Court concerned to decide the matter in the light of the observations made by the learned Additional Sessions Judge, Islamabad, in his order dated 29-6-1993 and to see whether there was any threat to peace when the provisions of section 145, Cr.P.C. Were initially invoked and to pass fresh orders about possession or restoration of possession as the case may be after ascertaining the claim of actual possession as required by section 145(4), Cr. P .C.