The petition in hand has been filed for quashment of order/Judgment dated 13.6.2003 passed by the learned ASJ Mansehra in Revision Petition No, 4/12.
2. Mr. Qazi Shamsuddin, Advocate the learned counsel representing the petitioner argued that Khoedad Respondent No, 2 moved an application to SP Mansehra alleging therein that Petitioners Nos, 1 and 2 trespassed upon his land on 15.11.2000 at unknown time. On the basis of said application, a case vide FIR No, 449 was registered on 27.11.2000 at P.S. Mansehra. Thereafter on 11.12.2000 Respondent No, 2 filed private complaint against 16 persons u/Ss. 447, 506, 148, 149 PPC in the Court of learned Judicial Magistrate Mansehra.
3. Without waiting for the result of the case registered by him and a private complaint filed by him in the Court of Judicial Magistrate, he on 6.12.2000 filed Civil Suit u/S. 9 of the Specific Relief Act.
4. It was also argued that on 11.12.2000 he filed yet another complaint u/S. 145 Cr.P.C. in the Court of Assistant Commissioner/SDM Mansehra, who sent the same for enquiry to SHO, whereafter report of the Prosecution Inspector was also obtained. It was vide order dated 16.1.2001 that the learned Magistrate passed preliminary attachment order.
5. It was also argued that there was no imminent danger of breach of peace, and in absence of such apprehension the Magistrate had no lawful authority to proceed further with the complaint filed u/S. 145 Cr.P.C. Reliance in this regard was placed on PLD 1997 Peshawar 70 and PLD 1996 SC 541.
6. It was also argued that the Petitioner No, 1 was owner of property in dispute which had been mortgaged with Sher Zaman father of Khoedad. On the death of Sher Zaman he was survived by 3 sons namely Khoedad, Jehandad and Ghulam Sarwar. Jehandad was survived by Mst. Gulshan his sole daughter whereas Ghulam Sarwar was survived by two daughters namely Bibi Jan and Mst.
Zarina. Vide Mutation No, 6622 attested on 20.8.1997 Mst. Gulshan redeemed her share measuring 1 Kanal 1 Marla in favour of Petitioner No, 1 whereas vide Mutation No, 6607 attested on 19.7.1997 Mst.
Zarina redeemed her share measuring 1 kanal 5 marlas in favour of Petitioner No,
1. The possession of the entire Khasra was handed over to Petitioner No, 1, who sold land measuring 2 Kanals to Petitioner No, 2 vide Mutation No, 7391 attested on 22.11.2000. The Petitioners Nos, 1 and 2 were in lawful possession of the property in dispute but this fact was ignored by the Courts below.
7. On the other Mr. Nisar Hussain Advocate argued that quashment petition in hand was not maintainable and the learned counsel representing Respondent No, 2 argued that forcible possession was taken from Respondent No, 2 who was an old man of 80 years by 16 persons, which promoted him to file complaint u/S. 145 Cr.P.C. and the learned Judicial Magistrate on satisfaction that there was imminent danger of breach of peace. The registration of case vide FIR No, 449 and filing of complaint against 16 persons was sufficient to prove that there existed danger for breach of peace, the learned Magistrate had passed the preliminary attachment order on 16.1.2001. The said order was valid and was in accordance with law.
8. It was also argued that Respondent No, 2. had through convincing evidence proved that he was in lawful possession as mortgagee and forcibly possession was taken from him which was restored to him, therefore, no illegality has been committed.
9. It was also argued that pendency of civil suit as well as FIR/complaint was no hurdle for filing complaint u/S. 145 Cr.P.C. Reliance in this regard was placed on PLD 1992 SC 406, PLD 2003 SC 578, 1987 SCMR 1371, 1999 P.Cr.L.J. 1558 and PLD 2002 Peshawar 6.
10.Mr. Ghulam Younis Tanoli, Advocate the learned representing the State did not support any of the parties but argued that the Magistrate could pass preliminary attachment order on his satisfaction and on appreciation of evidence the Courts below had arrived at the correct conclusion.
11.I have heard the learned counsel for the parties and perused the record.
12.Khoedad Respondent No, 2 filed two complaints on 11.12.2000, one u/S. 447, 506,148,149 PPC in the Court of learned Judicial Magistrate Mansehra and the other u/S. 145 Cr.P.C. in the Court of AC/SDM Mansehra. The complaint filed us 145 Cr.P.C. was marked by the AC/SDM to the SHO on 12.12.2000, who after enquiry reported that the petitioners Abdur Razzaq and others were owners of the land in dispute and the complainant Khoedad had already filed civil suit in the Court of learned Senior Civil Judge, Mansehra which was pending decision and next date of hearing in the said case was 22.12.2000, therefore, proceedings u/S. 145 Cr.P.C. cannot be initiated and the complainant be directed to wait for the outcome of the civil suit filed by him. Copy the plaint was also annexed with the report. The said report was submitted on 20.12.2000. The AC/SDM Kept the said report with him and it was on 3.1.2001 i.e. after 14 days when he marked the same to PSI for discussion within two days. The PSI gave the following report:-- "Sir, I have gone through he record.
The matter is subjudice in the Civil Court, therefore, applicant may be directed to submit the application to Civil Court for further proceedings.
Sd/-10.1.2001."
13. On receipt of the said report from PSI it was on 16.1.2001 that AC/SDM took cognizance and passed preliminary order whereby the property in disputed was attached. The conduct of the AC/SDM shows that from 15.11.2000 till 16.1.2001 i.e. for more than one month he abstained rather avoided to initiate the proceedings after submission of the complaint and even after submission of the police report. The hesitation of the AS/SDM was certainly a negation of his satisfaction about the existence of any apprehension of breach of peace which is one of the three essential prerequisites forming the foundation of jurisdiction of a Magistrate to proceed u/S. 145 Cr.P.C. as laid down by their Lordships of the Supreme Court of Pakistan in Muhammad Ishaque Chowdhury vs. Nur Mahal Begum and others (PLD 1961 SC 426) and The State vs. Abdul Sattar and others (PLD 1965 Karachi 305).
14. It is by now well settled that jurisdiction of the criminal Court u/S. 145 Cr.P.C. can only be invoked on the ground of likelihood of breach of peace and for such purpose the Court intending to take cognizance of the matter must consider objectively the facts and circumstances of the case and to satisfy itself whether likelihood of breach of peace exists or not.
15. In the case in hand, the plaintiff/Respondent No, 2 filed application to the SP Manshera on 15.11.2000 on the basis of said application a case vide FIR No, 449 was registered on 27.11.2000 at P.S. Manshera. Thereafter on 11.12.2000 Respondent No, 2 filed private complaint against 16 persons u/Ss. 449, 506, 148 & 149 PPC in the Court of learned Judicial Magistrate Manshera. He also filed civil suit on 6.12.2000 u/S. 9 of the Specific Relief Act. The complaint filed by the petitioner u/S. 145 Cr.P.C. does not contain a single word that there was likelihood of breach of peace.
16.It is by now settled law that the settlement of dispute relating to property which is not likely to lead to breach of peace is within the exclusive jurisdiction of civil Court if there was/is no imminent danger to the public peace, the Magistrate should not take cognizance u/S. 145 Cr.P.C. and need not determine the factum of actual physical possession of the disputed property as held by August Supreme Court of Pakistan in Qari Gran vs. Muhammad Jan and another (PLD 1996 SC 541).
17.In the case in hand I feel that Respondent No, 2 has resorted to the criminal Court u/S. 145 Cr.P.C. only to put additional pressure on the petitioners. Although the dispute, if any, between the parties was purely of civil nature. Resultantly, I allow the quashment petition, set aside the impugned order and quash the proceedings u/S. 145 Cr.P.C. pending against the petitioners.