' Mian Anam-ul-Haq has filed the instant Constitutional petition assailing the validity of the order, dated 12-3-1997 passed by the Additional Sessions Judge, Faisalabad whereby exercising provisional powers under the Code of Criminal Procedure he set aside the order of the Magistrate, First Class, Faisalabad, dated 16-6-1996 passed under section 145(4), Cr.P.C. Whereby property No,4-A, Race Course Road, Civil Lines, Faisalabad, was attached, till such time as a competent Court of law declares the ownership and possession of any contesting party.
2. Mian Rehmat Ali son of Mian Jewna who died during the pendency of the writ petition was the owner of the property No,4-A, Race Course Road, Faisalabad (hereinafter called the property in question). Respondent No,4 is his daughter whereas respondent No,5 is his brother. Mian Rehmat Ali was earlier married to a lady from whose womb two sons and four daughters were born. All of them after the death of Mian Rehmat Ali have been brought on record as his legal heirs with the permission of the Court. Respondent No, 1 Mst. Safia Rehmat was the second wife of Mian Rehmat Ali and was not blessed with any child from his loins. The petitioner is the nephew of Mian Rehmat Ali deceased and son of respondent No,5 and I was told during the arguments that this respondent has also expired.
3. Respondent No,1 brought a suit for declaration with permanent injunction and for cancellation of some documents in the Court of Senior Civil Judge, Faisalabad. Property in dispute was one of the properties included in the body of the plaint for which referred to relief was claimed. It was stated by respondent No,1 Safia Rehmat that she married late Rehmat Ali on 15-3-1980 as have, second wife and since there was no issue from the wedlock, Rehmat Ali was not harpy rather took an exception, finally resulting in divorce on 21-5-1996. Regarding property in dispute which measured 5 Kanals, 6 Marlas Safia Rehmat stated that Rehmat Ali made an oral gift of the house in her favour on 26-1-1993 to safeguard her future life and in this manner the former owner divested himself of all rights from the property. Defendant No,2, namely, Liaquat Ali son of late Rahmat Ali was alleged to be in possession of a forged general power of attorney purportedly executed by Reheat Ali in his favour. Challenge to this power of attorney was also made in the suit. Para. 6 of the plaint which is very important for effective adjudication of the matter in hand is reproduced as under:--- "That since the plaintiff is the owner of house No,4-A, Race Course Road, Civil Lines, Faisalabad which is partly in possession of the plaintiff and partly in possession of defendant No,3 (Mian Muhammad Ramzan) who is licensee of the plaintiff being the real brother of defendant No,1 (Rehmat Ali) and whose licence the plaintiff has revoked a fortnight ago but the defendant No,1 has not delivered the possession of the portion of this house to the plaintiff which the plaintiff is entitled to recover from him."
' Again while describing in para. 10 of the plaint as to when the cause of action arose it was stated as under:-- "...And a fortnight back when the defendant No,3 (Mian Muhammad Ramzan) refused to vacate the house and defendant No,2 (Liaquat Ali) refused not to act upon the alleged power of attorney and tried to dispose, alienate the suit properties and further a week ago when the defendant No,2 tried to dispossess the plaintiff from a portion of the property at Faisalabad."
4. On 20-5-1996 was the first date of hearing of the civil suit learned Civil Judge First Class, Faisalabad passed the following order:--- "20-5-1996. It is a fresh suit. Be registered.
' The learned counsel for the plaintiff/petitioner present.
' Plaintiff in person present. Brief arguments heard.
' Affidavit is attached. The operation of the impugned general power of attorney, dated 14-4-1996 is suspended till the next date of hearing and the defendants/ respondents Nos.1 and 2 are restrained from interfering in the possession of the plaintiff/petitioner over the property in dispute which is in her possession and from alienating the same and the other property in dispute till the next date of hearing subject to notice. A local commission is appointed to confirm whether the plaintiff/petitioner is in possession of any part of Property No,4-A, Race Course Road, Civil Lines, Faisalabad or not, therefore, Mr. Athar Khan, Advocate Faisalabad is appointed as Local Commission who would inspect the disputed property and report whether the plaintiff/petitioner is in possession of any part of the property in dispute and whether the defendant/respondent No,3 is in possession of any part of same as licensee of the plaintiff/petitioner and from which date the plaintiff/petitioner was in possession of the aforesaid property. The fee of the Local Commission of Rs,1,000 shall be paid by the plaintiff/petitioner. Notice be issued to the respondents/defendants after deposit of Talbana and through telegram for 26-5-1996. The report be submitted on or before the next date of hearing.
' Announced. (Sd.) Civil Judge, First Class, Faisalabad."
5. Another fact which requires mention at this stage and forms an important gamut of the dispute in question is the statement of late Rehmat Ali which was recorded in this Court on 9-4-1997. He appeared and stated as under: "I am settled in England but I have houses in Pakistan. I have got four daughters and two sons from previous wife. Mostly they too are in England. After the death of my wife I married Mst. Safia daughter of Hatiz Abdul Hamid whom I have divorced about 2/3 months back. I have no child from the second wife. She has a son from her previous husband who is doing his 'O' level and is living in England. When I would come to Faisalabad, I used to live in H.No,4-A, Race Course Road, Civil Lines, Faisalabad a room of which was in occupation of my wife Mst. Safia but after the divorce, she left the house. Now she is living with her brother.
' Opportunity given. No cross-examination. On Court questions: ' I am living in Pakistan for the last one year. Ever-since my arrival in Pakistan I am living in my house at Islamabad. But I occasionally used to visit Faisalabad to find out the welfare of my mother who has died. There was no dispute of possession qua my House No,4-A, Race Course Road, Civil Lines, Faisalabad. However, few months back one Zahid Sarfraz who is a political leader, with the help of a local D.S.P. And other police officials, arrested my brother, nephew and my grandson as they wanted to take forcible possession of the said house. When this house was sealed by the order of the Magistrate, I was in Islamabad and my brother and his sons were residing there.
Inamul Haq petitioner who is my brother's son was also residing there. When the house was sealed by the Magistrate Safia Bibi was residing with her brother. I had divorced her before the Magistrate sealed the house. I am not aware of any civil suit pending in the Civil Court, Faisalabad. I was in hospital for a while however, volunteered that I was told that my previous wife has filed a civil suit. I am not aware of any Commission sent by the Civil Court for inspection of the house in question, therefore, I am not aware of any positive report qua possession made by the said Commission."
6. It was stated in para. 4 of the writ petition that 20/25 persons while armed with deadly weapons including Kalashnikovs under the supervision of Mian Zahid Sarfraz accompanied by Hassan Abbas, S.H.O. Police Station Civil Lines forcibly trespassed into the property in occupation of the petitioner and his family and caused injuries to petitioner's son on 25-5-1996, copy of the medical certificate of Ahsan-ul-Haq son of Inam-ul-Haq is appended. In para. 5 the narration goes on to submit that an application for registration of the case against the culprits before the S.S.P. Bore no result persuading him to file W.P. No,18737 of 1996 before this Court praying for registration of a criminal case against the persons who trespassed into the property and the same is pending adjudication.
7. On 30-5-1996 on the initiative of the police proceedings under section 145 of the Code of Criminal Procedure were submitted in the Court of Illaqa Magistrate, who realizing gravity of the situation immediately proceeded to attach the property in question. It was stated in the order, dated 16-6- 1996 after hearing the counsel for both the parties and perusal of the police report, the conclusion reached was that it could not be said definitely as to who was in possession of the property in question legally. Both the parties are claiming ownership and possession of the property and for this purpose the Civil Court is already seized, of the matter. There was enormous bitterness between the parties and imminent danger to breach of peace and at any time serious offence can be committed leading to loss of human life over the property in question. Keeping all the circumstances in view the property in question was attached and the S.H.O., Police Station, Civil Lines, Faisalabad was issued warrants of attachment and was directed to keep the property in attachment till a competent Court passes an order regarding ownership or possession.
8. The order of the Magistrate, dated 16-6-1996 was challenged in revision, as mentioned earlier, and on 12-3-1997 it was set aside by the Additional Sessions Judge, which is now impugned in the instant writ petition.
9. The only ground which weighed with the provisional Court in setting aside the order of the Magistrate was that since one of the parties had resorted to civil proceedings and as a matter of fact the Civil Judge had also regulated the possession through a stay order, recourse to section 145, Cr.P.C. Was not valid.
10. Learned counsel for the petitioner contested the position of law propounded by the provisional Court and submitted that even if the Civil Court is seized of the matter in dispute still recourse can be made to section 145 of the Code of Criminal Procedure in those cases where there is imminent danger of breach of peace. Taking his argument to its logical conclusion it was submitted with some vehemence that in the peculiar circumstances of this case when admittedly both the parties were in possession and an attempt was made to oust one by the other, situation could arise any time triggering an incident not only disturbing the peace and tranquility but also posing danger to life and property. In support of his contention learned counsel relied upon Dilbaz Khan v. The State (PLD 1959 (W.P.) Lahore 264, Abdul Aziz and others v. Mian Rafi-ud-Din through his Legal Heirs (1983 SCM R 928), Ghulam Murtaza and others v. The Sessions Judge, Leiah and others (1987 SCM R 622), Haji Muhammad Ashraf v. The State and 3 others (1988 PCr.LJ 2268), Mst. Nasim Akhtar v. The State (1996 PCr.LJ 560) and Mirza Abdul Razzaq v. Barkat Ali and others (1985 SCM R 1235).
11. On the other hand counsel for respondents Nos.1 and 2 supported the order of the Additional Sessions Judge, Faisalabad and submitted that once an order regulating possession was passed by the Civil Judge in the suit instituted by the respondents, the order of the Magistrate, dated 16-6- 1996 was not only in total and complete violation of law but also was outside the pale of the judicial precedents enunciated by the superior Courts from time to time. Learned counsel for the respondents embellished his moot point by stating that attaching the property by the Magistrate amounted to encroachment upon the realm of jurisdiction possessed by the Civil Judge. Another pertinent point canvassed was that in presence of a stay order, though interim in nature, attachment of property by the Magistrate lost its efficacy. In support of his argument he relied upon the case of Shah Muhammad v. Haq Nawaz (PLD 1970 SC 470), Mehr Muhammad Sarwar and others v. The State, and others (PLD 1985 SC 240), Lal Muhammad and others v. Suhail Akhtar etc. (1997 SCM R 1358) and Abdul Aziz v. S.H.O. (1993 M LD 374).
12. I have attentively addressed myself to the question of law raised in this petition and after perusal of the limited record placed before me I have found myself in agreement with the case of the petitioner for the reasons which are to follow in the ensuing paragraphs.
13. Subsection (1) of section 146, Cr.P.C. For facility of reference is reproduced below:--- "If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof."
14. Abundant growth of case-law in the recent past has made one thing manifestly clear, which section 146, Code of Criminal Procedure reproduced above, bolsters, is that even during the pendency of proceedings before the Civil Judge initiated through a plaint, recourse can be made to section 145 of the Code of Criminal Procedure. The only point which requires an authoritative decision is whether in presence of stay order, though interim in nature, can a Magistrate assume jurisdiction by attaching the property which is subject-matter of dispute before the Civil Judge.
Very important fact conferring such jurisdiction upon the Magistrate which may not be lost sight of is the ground reality regarding the overall situation. If the parties in an attempt to secure possession of the property in question are so strong having political linkages, that peace and tranquility, by any faulty step may explode, would it not be appropriate to allow the Magistrate to step in and exercise his powers under section 145, Cr.P.C. And thereafter shift the ball in the Court of the Civil Judge already seized of the dispute. The answer to this question, after application of mind is in the affirmative. Respondent No,1/plaintiff herself admits in the paragraphs of her plaint which have been reproduced in this order that partly the property is in possession of the petitioner and he is the property is in possession of the petitioner the two rooms which she asserts are in her possession. On the contrary a firm averment has been made in the writ petition that 20/25 persons led by a famous political figure by the name of Zahad Sarfraz came with the police officials to oust the petitioner and to take complete possession of the house, though attempts were frustrated but not before getting the son of the petitioner injured in the brawl. The writ petition for registration of the case, I am told, is still pending. However, because of the intervention of the Magistrate attaching the property a need for its accelerated hearing did not arise.
15. The position which emerged before the Magistrate when he was seized of the matter while exercising the Jurisdiction under section 145 of the Code of Criminal Procedure was hazy in nature.
There were claims and counterclaims from either side, respondent No,1 herself stated that she is partly in possession whereas the other respondents from the side of late Rehmat Ali claimed their possession over the property. Rehmat Ali in his statement before this Court stated that his second wife was earlier in possession of one room but after pronouncing divorce, she has parted with possession and is living with her brother. Attempts were made through force to get possession of the property. The material as it appeared before the Magistrate on 16-6-1996 was in total and absolute conformity with the provisions of section 146 of the Code of Criminal Procedure because he failed to determine as to who was in possession of the property and by attaching it he referred further exercise of coming to this conclusion to the Civil Court who was already seized of the matter. The Magistrate, therefore, acted strictly in accordance with the provisions of section 146 of the Code of Criminal Procedure. In suchlike cases of urgency law definitely would lean in favor of exercise of jurisdiction by the Magistrate under section 145 (ibid) by going ahead with the attachment of the property particularly if both the parties are at loggerheads claiming possession on the basis of title and thereafter may refer the case for decision to the Civil Judge, particularly when he is unable to conclude as to who is in possession of the subject-matter of dispute or who was forcibly dispossessed two months prior to the passing of the preliminary order. After ensuring that efforts to breach the peace is thwarted by attachment of the property Civil Courts which are Courts of plenary and ultimate jurisdiction and all questions of ownership and possession can be decided after allowing both the parties to lead evidence in detail can conveniently arrive at an effective adjudication Attachment, was a step, to avoid bloodshed and frustrate any attempts to breach the peace, which could not be achieved by temporary stay granted by the Civil Court with respect to part of the property as the other part of the property was also attempted to be usurped by muscle power. Action under section 107/151, Cr.P.C. Cannot be a substitute to attachment, because the basic bone of contention remains the property in question.
16. Another angle from which the matter can be examined is that the date on which the Magistrate assumed the jurisdiction i,e, 30-5-1996 the Civil Court had extended the interim relief of injunction, possibility of its coming to an end could not have been excluded. By an amendment prior to the dispute in this case rule 2-B of Order XXXIX, rule 1 has been added in the Code of Civil Procedure which reads as under:-- "(2B). The order of injunction made under rule 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of six months unless extended by the Court after hearing the parties again and for reasons to be recorded for such extension: ' Provided that report of such extension shall be submitted to the High Court."
17. I was not told by any one of the parties that the stay order/injunction granted by the Civil. Judge was confirmed or extended under the above-quoted provision of law. Therefore, the position which boils down is that the stay order can be effective only for a period of six months whereas apprehension of breach of peace concerning the property in question can arise at any time.
18. Viewing the scenario from yet another angle if the issuance of a temporary injunction to one of the parties to a dispute was to oust jurisdiction of the Magistrate concerned, then nothing would be easier for a person of ingenuity to obtain possession of the property in a wrongful manner and then to file a suit for injunction and by obtaining a temporary injunction restraining the opposite-party from interfering with his possession, raise the plea before the Magistrate in the proceedings under section 145, Cr.P.C. That since the Civil Court has regulated the possession in a civil suit, therefore, Magistrate lacks jurisdiction. This could never be the intention of the Legislature, law would never permit a recalcitrant person to frustrate its object by such devious means. Under subsection (2) of section 146, Cr.P.C. Even the powers of appointment of receiver have been conferred upon the Magistrate who attaches the property when no receiver has been appointed by the Civil Court.
19. The upshot of the discussion, therefore, is that the impugned order passed by the Additional Sessions Judge, dated 12-3-1997 is set aside and since the Magistrate. Vide his order, dated 16-6- 1996 has already referred the matter in dispute to the Civil Judge, who, I am told, is still seized of the civil suit filed by respondent No,1, is hereby directed to finalize the proceedings within six months from the date of receipt of this order. Till then the property shall remain attached as ordered on 16- 6-1996 by the Magistrate, Faisalabad. Writ petition is accepted with no order as to costs.