' This is a petition under section 561-A, Cr.P.C. For the abashment of the proceedings being conducted by the Assistant Commissioner, Saddar, Sheikhupura/respondent No,1 under section 145 of the Code of Criminal Procedure.
2. The petitioner is aggrieved by the proceedings initiated by the Assistant Commissioner, Saddar Sheikhupura/ respondent No,1 on the application of respondent No,4 on 9-5-2000 and seeks declaration that the same is illegal, improper and without lawful authority.
3. Learned counsel for the petitioner has referred to Mehr Muhammad Sarwar and others v. The State and 2 others PLD 1985 SC 240 where there was a dispute between the parties over the possession of a certain piece of land. The petitioner had filed a civil suit against the respondents praying that they be restrained from interfering with petitioner's possession of the suit land. Along with the suit they also filed an application for temporary injunction, whereupon an interim stay order was issued against respondents Nos.2 and 3 on the same day to the effect that in case the petitioners are in possession their possession may not be disturbed. The respondents did not file an appeal against this order which, therefore, became final and is still in force. Subsequently, the local S.H.O. Initiated proceedings under section 145, Cr.P.C. Against the petitioners in the Court of the Assistant Commissioner, Okara and the petitioner filed an application under section 561-A, Cr.P.C.
The High Court dismissed it with the observation that the petitioner should in the first instance make an application under section 249-A, Cr.P.C. Before the trial Court. The petitioner then moved before the Hon'ble Supreme Court for leave to appeal. The Hon'ble Supreme Court remanded the case to the High Court with the following observation:-- "It requires to be mentioned that in an inquiry under section 145, Cr.P.C. All that a Magistrate is ultimately empowered to do is to regulate the possession of the property in dispute for the time being, so that the apprehended breach of peace is averted. But as held by this Court in Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 where the possession of the same property has been regulated by a civil Court, even though a temporary injunction, the matter falls outside the jurisdiction of the learned Magistrate under section 145, Cr.P.C. The relevant portion of the said judgment reads as follows: 'A case in which a civil Court is, already seized with the subject-matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite-party from interfering with the possession of the decree-holder falls outside the jurisdiction of a Magistrate under section 145, Cr.P.C. Action can, of course, be taken always under sections 107 and 151 of the Criminal Procedure Code to present breach of peace in case of this nature, but no order for attachment of the property can be made' ."
4. On the other hand learned counsel for the respondents has referred to the case of Sardar Hira Singh and another v. The State and others PLD 1998 Supreme Court 1500 where Sere Guru Nanak Darbar, situated at Aram Bagh, Karachi, was established in 1915 and since then members of Hindu community living in Karachi and other parts of the country have been offering their prayers and holding other religious ceremonies there and in June, 1993, a dispute arose between respondents Nos.2 and 3, who claim to be Sikh converts and the members of the Hindu community in respect of the management of the said Darbar which resulted in institution of proceedings under section 145, Cr.P.C. Before the Assistant Commissioner and S.D.M., Aram Bagh, Karachi, as the S.D.M. Was unable to decide which of the two parties was initially in possession, the Darbar was ordered to be sealed pending determination of respective claims of the parties by a Civil Court. This order was, however, reversed by the 1st Additional Sessions Judge, Karachi South, vide his judgment, dated 27-6-1994 and the property was ordered to be resealed. The respondents then went before the High Court under section 561-A, Cr.P.C. And the order passed by the S.D.M. Has been restored. The Hon'ble Supreme Court refused the leave with the following observations:--- "A perusal of the said order indicates that it is based on evidence recorded by the learned S.D.M.
There appears to be no misreading of evidence and neither any material aspect of the case has been overlooked."
5. Learned counsel for the respondents has also referred to an order passed in a writ petition cited as Muhammad Afzal v. Mushtaq and 5 others 1990 PCr.LJ 1369, in that case both the parties claimed possession of the disputed property and the impugned interim order passed by the trial Court under proviso to subsection (4) of section 145, Cr.P.C. Regarding attachment of the same and it was observed that final order was yet to be passed after hearing the parties, the petition was dismissed as premature. It was also mentioned in the order that a civil suit was going on between the parties.
6. I have given due consideration to the valuable arguments on both sides. It appears that the dictum laid down in Mehr Muhammad Sarwar and others v. The State and 2 others PLD 1985 SC 240 is in the field and it has not been altered in Sardar Hira Singh and another v. The State and others PLD 1998 Supreme Court 1500. These two cases were not before my brother while disposing the writ petition in Muhammad Afzal's case. In this view of the matter, the petition merits to be allowed and the same is allowed and the impugned proceedings are quashed.