' Raja Tallat Mehmood, the petitioner, has brought this petition under section 561 of the Code of Criminal Procedure for quashment of the proceedings being carried out by the Assistant Commissioner, City, Rawalpindi, under section 145 of the said Code and in particular the order, dated 8-8-1998 passed by him in pursuance thereto.
2. The facts leading to this petition are that House No, 1034-F, Satellite Town Scheme, Rawalpindi, which is the cause of the dispute originally belonged to one Syed Laeeq Ahmed Shah son of Wajid Ali Shah. He sold the said house to the present petitioner and in consequence thereof, the same was transferred in his name by the Housing and Physical Planning Department as intimated to the petitioner by the Deputy Director Secretary, District Housing Committee, Rawalpindi, through his letter, dated 10-6-1995. The said house was in occupation of respondent No,2 as a tenant of Syed Laeeq Ahmed and was running a school therein under the title of Happy Lands School.
3. On 4-3-1997, respondent No,2 instituted a suit for permanent injunction against Syed Laeeq Ahmed and the present petitioner for permanently restraining the respondents in the suit from interfering in his possession of the said house, This suit culminated into an ex parte decree passed by the learned Civil Judge, Rawalpindi, on 5-6-1997. In the meanwhile, on the basis of an agreement to sell, dated 13-9-1997, another suit was filed by respondent No,2 on 9-4-1998 against Syed Laeeq Ahmed, the present petitioner and District Housing Committee, for transfer of the said house in his favour claiming that Syed Laeeq Ahmed had agreed to sell the said house to him for a sum of Rs,18,00,000 out of which a sum of Rs,1,00,000 was given to him as earnest money. By its order, dated 10-4-1998, the learned Civil Judge, Rawalpindi, directed for maintenance of status quo restraining the respondents from interfering in possession of the present respondent No,2 in the suit premises.
4. The petitioner, on the other hand, filed an ejectment application before the Rent Controller, Rawalpindi, for eviction of respondent No,2 from the disputed house. It is the claim of the petitioner that during the proceedings pending before the Rent Controller, the parties reached to a settlement and accordingly an application was moved to the learned Rent Controller for withdrawal of the ejectment petition and the same was accordingly withdrawn on 23-7-1998 with the assurance of respondent No,2 that he will allegedly hand over the possession of the land to the petitioner. After withdrawal of the ejectment petition, the petitioner filed a suit for permanent injunction on 24-7-1998 for restraining respondent No,2 and others in his possession of the disputed property which was allegedly handed over to him after the aforesaid settlement in the ejectement proceedings. Temporary injunction for maintenance of status quo was also issued.
5. The respondent No,2 denies that he ever parted with the possession of the disputed premises or delivered its possession to the petitioner. It was claimed that, in fact, on the night of 27th July, 1998, the petitioner allegedly forcibly entered in the disputed house with the help of 30-40 persons the sign-board of the School was thrown away, while other equipment lying in the School premises, such as computer, photostat machine, T.V. V.C.R. Printer and other furniture, were taken away by the petitioner in a truck and thereby forcibly occupied the house. This matter was also reported to the police upon which a case under sections 452, 427, 380, 147, 148 and 149 of the Pakistan Penal Code was registered Vide F.I.R. No,268, dated 27-7-1998, at Police Station New Town, Rawalpindi, at 11-40 p.m. Pursuant to the said F.I.R., the petitioner and two of his companions were arrested. The police thereupon submitted a report before the Assistant Commissioner, Rawalpindi, on 28-7-1998, for initiating proceedings under section 145 of the Code of Criminal Procedure against the petitioner and others. A similar report under section 107/150 was submitted by the police on 31-7- 1998. In the meanwhile, Mst. Faozia Naheed, the wife of petitioner, moved a Constitutional petition (Writ Petition No,1607/98) claiming that she and her family members were being harassed.
6. In pursuance of the said Constitutional petition, this Court summoned the Superintendent of Police, C.I.A., Rawalpindi, who on 10-8-1998 stated in the Court that no action contrary to law would be taken against the petitioner and that efforts for restoration of the disputed property shall be made strictly in accordance with law. He also intimated that in this connection, the proceedings under section 145, Cr.P.C. Have also been initiated against the petitioner. In view of the said statement of the Superintendent of Police, the petitioner did not press the Constitutional petition and the same was disposed of accordingly. Respondent No,2 also moved an application under Order 39, rule 2(3) read with section 94 of the Code of Civil Procedure for initiating contempt proceedings against the petitioner and for restoration of the possession of the disputed premises to him which was allegedly occupied by the petitioner by trespassing the same during the subsistence of maintenance of status quo order issued by the learned Civil Judge which was still in force.
7. In the meanwhile, by his order, dated 8-8-1998, on the basis of police report submitted to him the Assistant Commissioner directed for sealing of the property in dispute. The next date of bearing before the learned Assistant Commissioner, Rawalpindi, was fixed for 22-8-1998. It was contended that the learned Assistant Commissioner passed a further order on the 18th August, 1998, for sealing of the property as ordered by him earlier notwithstanding the temporary injunction issued by the civil Court. In this connection, the learned Assistant Commissioner was of the view that since the said order was not in respect of the title of the property the proceedings under section 145, Cr.P.C. Were maintainable even during the pendency of civil litigation between the parties.
8. The petitioner has thus brought the petition seeking quashment of proceedings under section 145 of the Code of Criminal Procedure on the ground that, since the civil Court of competent jurisdiction has already taken cognizance of the matter, criminal Court had no jurisdiction to proceed under the provisions of section 145 (ibid). Mr. Abdul Shakoor Peracha, Advocate in this context has relied upon Mehr Muhammad Sarwar and others v. The State and others (PLD 1985 S.C.
240), where in on the basis of its earlier decision in Shah Muhammad v. Haq Nawaz and another (PLD 1970 S.C. 470), the Supreme Court had held that 'where the possession of the Property is regulated by the civil Court, even though a temporary injunction, the matter falls outside the jurisdiction of the Magistrate under section 145 of the Code of Criminal Procedure. He also referred to Shah Muhammad v. The State and 5 others (1983 SCMR 1173), in which similar view was taken by the Supreme Court. The learned counsel also relied upon Muhammad Hussain and another v. The State and another (1986 PCr.LJ 1198), Shafiq Khan v. The State and Muhammad Saleem (1989 PCr.LJ 2455) and Muhammad Suleman v. The State and 3 others (1998 PCr.LJ 527) wherein the same principle was laid down that the criminal proceedings are always subordinate and subservient to the findings by a competent Court of civil jurisdiction. The jurisdiction under section 145, Cr.P.C. Is exercised to prevent the parties from fighting over possession of immovable property and to shed blood and disturb peace. Thus, decision of title of parties over the disputed land was never intended in proceedings under section 145, Cr.P.C.
9. The petition was vehemently opposed on behalf of the State as well as by respondent No,2. Malik Muhammad Kabir, the learned Assistant Advocate- General contended that the petitioner had, through his high handedness, forcibly occupied the disputed premises where 400 students were getting education. Since there were chances of breach of peace the proceedings under the provisions of section 145, Cr.P.C., can continue even during pendency of civil suits between the parties.
10. Mr. Muhammad Ilyas Siddiqui, Advocate, the learned counsel for the respondent No,2, very vehemently claimed that the petitioners had not only taken the law in his own hand, but had also abused the process of the Court by fraud and misrepresentation. The learned counsel very categorically stated that there had been no settlement between the parties, nor respondent No,2.
Had ever voluntarily delivered the possession of the disputed premises to the petitioner. In this context, he contended that the decree, dated 5-6-1997, for permanent injunction passed in favour of'respondent No,2 was still in tact as the petitioner (sic) aside. Further, the (sic) issued temporary injunction on 10-4-1998 which was still in force whereby the petitioner and others were restrained from interfering in possession of the disputed premises by respondent No,2. In this respect, he relied upon Abdul Aziz and others v. Mian Rafiuddin through legal heirs (1983 SCMR 928), wherein it was held that the dispute relating to possession is likely to cause a breach of the peace, but that jurisdiction will cease if a decree declaring the rights of the parties in the property has been passed or an order regulating its possession had been made. In the present proceedings, however, no such decree or order is shown to have been passed by the civil Court, therefore, criminal proceedings can continue. He also referred to Mrs. Betty Alice Gins v. The State and others (1982 Law Notes (Lahore) (616) , Hafiz Muhammad Hussain v. The State and others (PLD 1982 Karachi 967) and Muhammad Abid v. The Sub-Divisional Magistrate, Jamshed Quarters (East), Karachi and another (1992 PCr.LJ 2363) wherein it was held that the procedure under section 145, Cr.P.C. Was in fact a stop gap arrangement. The Magistrate is required to maintain status quo under the provisions of section 145, Cr.P.C. Till the right of the concerned parties are decided by a competent civil Court. Learned counsel for respondent No,2 also contended that suit for permanent injunction filed by the petitioner was not only mala fide but was based on concoction and misrepresentation.
This suit was filed by the petitioner on the 24th July, 1998, claiming that since he was in possession of the disputed house, respondent No,2 be restrained from interfering in his possession. Temporary injunction was also obtained on the same basis although on the said date he was not in occupation of the disputed premises. This fact stands proved from the written statement filed by him in the suit for specific performance of contract on 27th/28th July, 1998. In para. 3 thereof, he claimed that he had never interfered in possession of respondent No,2 who was in occupation of the house as a tenant. He also admitted therein the existence of a decree in favour of respondent No,2.
11. It is admitted between the parties that the ex parte decree for permanent injunction passed in favour of respondent No,2 to the effect that he was in occupation of disputed premises as a tenant is still in the field. In the second suit filed by him for specific performance of agreement in respect of disputed house is pending adjudication in which stay order restraining the petitioner from interfering in possession of the disputed house had also been issued. In another suit filed by the present petitioner an injunction had been issued by the civil Court for restraining respondent No,2 from interfering in possession of the petitioner. Meaning thereby that the issues which now require determination are as to who was in actual possession of the disputed premises on the night of 27- 7-1998, whether respondent No,2 delivered the possession thereof on the said date or earlier voluntarily and whether the petitioner had entered the disputed property forcibly without having any lawful authority. Evidently, these questions can be determined by the civil Court and for that purpose finding of a criminal Court is not required. In particular respondent No,2 has also moved an application for initiating contempt proceedings against the petitioner for allegedly violating the injunction order issued by the civil Court and for restoration of the disputed premises to him.
12. There is no cavil to the proposition that the proceedings under section 145 of the Cr.P.C. Are of temporary nature and are subservient to the findings of the civil Court. There is also nothing on the record that at present I there is any apprehension of breach of peace. The present position is that the petitioner is in occupation of the disputed premises, whether as a trespasser or otherwise.
Likewise nothing has been brought on the record to show that respondent No,2 has taken law in his hand for eviction of the petitioner. He has already reported to the police about the alleged forcible occupation of the premises which was in his possession as a tenant upon which a case was duly registered against the petitioner and is under investigation. The police has also reported to the Magistrate for initiating proceedings under the provisions of section 107/151 of the Code of Criminal Procedure. If now any situation arises where breach of peace is disturbed criminal Court can certainly proceed under the provisions of section 107/151, Cr.P.C. (ibid).
13. In view of the above, there seems no justification in continuance of the proceedings under the provisions of section 145, Cr.P.C., as civil Court has already taken cognizance of the matter and the issue whether the petitioner has violated the terms of the temporary injunction issued by the civil Court and thereby has allegedly dispossessed respondent No,2 is also pending adjudication in pursuance of the application moved by respondent No,2 under the provisions of Order 39, rule 2(3) read with section 94 of the Code of Civil Procedure. In the said application, respondent No,2 has also prayed for restoration of the possession of the disputed property. In other words, the temporary relief which can he provided under the provisions of section 145, Cr.P.C. Can be granted on permanent basis by the civil Court. In consequence thereof, the proceedings initiated before the Assistant Commissioner, Rawalpindi, under section 145.
' Cr.P.C. Are quashed and orders, dated 8-8-1998 and 18-8-1998 passed by him are set aside. The learned Civil Judge seized of the Civil suit regarding specific performance of the contract and application for restoration of the disputed property moved by respondent No,2 as are stated to be fixed for 2-9-1998, is directed to dispose of the said applications by the 20th September, 1998, even if he has to try the matter by holding day to day hearings. The learned District and Sessions Judge, Rawalpindi, is also directed that the civil suits pending between the parties be entrusted to one Court to avoid conflicting decisions. The present application is allowed accordingly.