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 S.P. Mansehra alleging therein that petitioners No,1 and 2 trespassed upon his land on 15-11-2000 at unknown time. On the basis of said application, a case vide F.I.R. No,449 was registered on 27-11-2000 at Police Station Mansehra.
Thereafter on 11-12-2000 respondent No,2 filed private complaint against 16 persons under sections 447, 506, 148, 149, P.P.C., 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 under section 9 of the Specific Relief Act.
4. It was also argued that on 11-12-2000 he filed yet another complaint under section 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 under section 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,l.
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 No,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 prompted him to file complaint under section 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 F.I.R 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 F.I.R./Complaint was no hurdle for filing complaint under section 145, Cr.P.C., Reliance in this regard was placed on PLD 1992 SC 406, PLD 2003 SC 578, 1987 SCMR 1371, 1999 PCr.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 under sections 447, 506, 148, 149, P.P.0 in the Court of learned Judicial Magistrate Mansehra and the other under section 145, Cr.P.C, in the Court of A.C./S.D.M., Mansehra. The complaint filed under section 145, Cr.P.0 was marked by the A.C./S.D.M. To the S.H.O. 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 under section 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 of the plaint was also annexed with the report. The said report was submitted on 20-12-2000. The A.C./S.D.M. 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 the record. The matter is subjudice in the civil Court, therefore, applicant my 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 the A.C./S.D.M. Took cognizance and passed preliminary order whereby the property in dispute was attached. The conduct of the A.C./S.D.M. 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 A.C./S.D.M. Was certainly a negation of his satisfaction about the existence of any apprehension of breach of peace which is one of the three essential pre-requisites forming the foundation of jurisdiction of a Magistrate to proceed under section 145, Cr.P.0 as laid down by their Lordships of the Supreme Court of Pakistan in Muhammad Ishaque Chowdhury v. Nur Mahal Begum and others (PLD 1961 SC 426) and The State v. Abdul Sattar and others (PLD 1965 Karachi 305).
14. It is by now well settled that jurisdiction of the criminal Court under section 145, Cr.P.0 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 S.P., Mansehra on 15-11- 2000 on the basis of said application a case vide F.I.R. No,449 was registered on 27-11-2000 at Police Station Mansehra. Thereafter on 11-12-2000 respondent No,2 filed private complaint against 16 persons under sections 449, 506, 148 & 149, P.P.0 in the Court of learned Judicial Magistrate Mansehra. He also filed civil suit on 6-12-2000 under section 9 of the Specific Relief Act. The complaint filed by the petitioner under section 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 a 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 under section 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 v. 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 under section 145, Cr.P.0 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 under section 145, Cr.P.C., pending against the petitioners.