1. Granted subject to all just exceptions.
2. By this criminal miscellaneous application under section 561-A, Cr. P.C. Applicant wants annulment of the original order passed by. City Magistrate, Shikarpur, dated 26-10-1995 and the appellate order passed by the IVth Additional Sessions Judge, Shikarpur dated 30th August, 1997.
1. Relevant facts in short are that applicant claims that he was in lawful possession of the property in dispute while the respondent No,2 having no title or any right to the said property, took over forcible possession from the applicant. This was done during the pendency of title suit filed by the applicant. The civil suit is still pending. The applicant therefore, apart from the civil suit filed criminal proceedings under section 145, Cr.P.C. In the Court of City Magistrate, Shikarpur in the year 1994.
2. However, on 26-10-1995 the City Magistrate.
3. ' Shikarpur dismissed the proceedings. The order of the City Magistrate for convenience sake is reproduced as under:-- "ORDER '26-10-1995 ' The applicant submitted an application dated 26-7-1994 in the Court of learned Sub-Divisional Magistrate, Shikarpur. The R & Ps are received by way of transfer in this Court on 2-8-1995.
4. ' Heard both the parties. The possession of property in this case is being regulated by Civil Court where injunction is also issued. The proceedings before this Court prima facie are for purpose of avoid imminent breach of peace, by exercising extraordinary power under section 145, Cr.P.C.
5. ' Proceedings is old one and no untoward incident between the parties taken place which object to prevent breach of peace in my humble opinion did not exist and apprehension, therefore, did not exit at this stage.
6. ' Since the matter is pending before Civil Court it being contested by both parties adjudication by that Court being in pendency, therefore, the matter fall outside jurisdiction of this Court. Hence application under section 145, Cr.P.C. Is hereby dismissed.
7. ' Announced in open Court, ' This the 26th day of October, 1995.
8. (Sd.)
9. (Ghulam Ali Balouch), ' City Magistrate, Shikarpur."
10. ' The applicant challenged this order by way of Criminal Revision No,34 of 1995 and the revision was decided by IVth Additional Sessions Judge, Shikarpur holding that order of the City Magistrate did not suffer from any illegality and that it was a proper and leal order and did not require revision.
11. Against both these orders the present criminal miscellaneous application has been filed. #TBS The State v. Syed Qaim Ali Shah 1992 SCM R 2192; Muhammad Asim #TBE The main grievance of the applicant is that he was dispossessed during the pendency of the civil suit without due course of law, by respondent No,2 and therefore, he wants to get the possession back through the Magistrate under proceedings in question. The civil suit is already pending between the parties and the relief of possession can be obtained from the Civil Court also. Exercise of jurisdiction under provisions of section 145, Cr.P.C. Is subject to the moot point that there is likelihood of breach of peace on account of dispute over possession between the parties. Since the parties have approached the Civil Court where the litigation is going on, it is expected that both the parties will be controlled by the orders of the Civil Court. It has been held by the two Courts below that there was no danger at any point of time, of any further breach of public peace and therefore, it was found that invocation of the summary procedure provided by section 145, Cr.P.C. Was not called for.
12. ' After hearing the arguments of the learnod counsel for the applicant I am of the view that the orders do not invite interference under the provisions of section 561-A, Cr.P.C. Specially when civil litigation is going on. ' Applicant is at liberty to seek all reliefs from the Civil Court. Under these circumstances this criminal miscellaneous application is dismissed in limine.