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Criminal Revision No. 308 of 1973, heard on 2ndJuly 1974.
S. 145‑Dispute as to possession of immovable property --Pending proceedings under S. 145, Cr. P. C. Civil Courts passing order of maintenance of status quo‑Held, order of Civil Court will govern question of possession during pendency of civil suit.
Shah Muhammad v. Haq Nawaz P L D 1970 S C 470 ref.
Nemo for Petitioner.
A. R. Shabab Mufti, A: G. for the State.
Muhammad Akram Khawaja for Respondent No. 2.
Date of hearing : 2nd July 1974.
The case has been called out. No one has appeared to press the petition on behalf of the petitioner. The learned counsel for the respondent No. 2, is however, present. I proceed to decide the case on merits.
2. The facts are that there was dispute between Muhammad Malik petitioner and Hakim Gulzar, Ahmad, the son of respondent No. 2, over the possession of a room belonging to one Muhammad Amin, who has since died. Both parties tried to obtain possession of the room which gave rise to a danger of breach of peace. On a report by the police to that effect, Mr. Muhammad Siddiq, M. I. C., Gujranwala passed an order for sealing of the room on 19‑5‑1972. Muhammad Malik petitioner filed an application for desealing which was rejected by the learned Magistrate by his order dated 6‑6‑1972. This petition is directed against the two above mentioned orders of Mr. Muhammad Siddiq, M. I. C., Gujranwala.
3. The main contention urged by the petitioner in his application is that tire two aforementioned orders are without jurisdiction and as the property could not be attached or ordered to be sealed under section 146 (1), Cr. P. C. which envisaged to the conditions namely, that‑
(a) in case the Magistrate decides that none of the parties was in possession at the time of the order, or
(b) in case the Magistrate is unable to satisfy himself as to which of the parties was in possession of the property.
Having gone through the orders directing the sealing of the room in dispute I find that the order was made under sub‑section (4) of section 145, Cr. P. C. and not under section 146, Cr. P. C. Moreover a civil suit between the parties about the possession of the same property is instituted in the Court of Mr. Sardar Ali Gul Khan, Civil Judge, Gujranwala. An application for temporary injunction was also filed in his Court. On that application the learned Civil Judge vide order dated 20‑12‑1972 observed:‑
"At present both the parties are restrained to disturb the order passed by the Magistrate."
In other words he upheld the order of sealing the property passed by the learned Magistrate on 19‑5‑1972 and restrained either of the parties to disturb the status quo. It is, therefore, apparent that the order of status quo passed by the learned Civil Judge governs the question of possession at present during the pendency of the civil suit. In view of the observations of the Supreme Court in Shah Muhammad v. Haq Nawaz (P L D 1970 S C 470) the trial Magis trate can no longer exercise his jurisdiction under section 145, Cr. P. C. in connection with the building in dispute.
4. For the aforementioned reasons I feel that the petition has no merits and is therefore, dismissed. The case file should be returned to the Court below.
Petition dismissed.
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