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Criminal Miscellaneous No. 13/Q of 1977, decided on 9th March 1977

S. 561‑A read with S. 145‑Dispute respecting possession of immovable property‑Status quo order violated by petitioners during subsistence of order by dispossessing respondents‑Notwith standing pendency of civil suit recourse could tie had to proceedings under S. 145, Cr. P. C. and party dispossessed could be restored in its possession‑Quashment of proceedings declined, in circum stances.‑[Quashment of proceedings].

Shah Muhammad v. Haq Nawaz and another P L D 1970 S C 470; Shah Nawaz etc. v. Sub‑Divisional Magistrate etc. P L D 1974 Kar. 104; M. Asghar Bashir Gora v. Hassan Khan 1975 P Cr. L J 7 and Anwar Javed etc. v. Ikramul Haq etc. P L D 1976 Lah. 1378 ref.

Muhammad Nawaz for Raja Mahmood Akhtar for Petitioner.

The notices sent to respondents have been returned with the endorsement that they refused to receive the same. The report of Constable, Ashiq Hussain to this effect has been furnished, which is attested by as many as five witnesses, apparently of the locality.

2. It appears from the facts recited in the orders of the Courts below that Muhammad Din etc. respondents, had been allotted land under Grow More Food Scheme in Chak Nos. 335/EB and 333/EB, of which possession had been delivered to them on 5‑4‑1974. Ghulam Nabi etc. petitioners, applied to the Deputy Commissioner, Multan, claiming their right and praying that as the land belonged to the Land Commission, the same could not have been allotted under Grow More Food Scheme. The Deputy Commissioner reported the matter to the Commissioner, Multan, whereupon Muhammad Din etc. respondents, brought a civil suit before the Administrative Civil Judge, Multan, in which an order of status quo was passed on 6‑7‑1974. The land remained in the possession of Muhammad Din etc, respondents but on 18‑9‑1974, Ghulam Nabi etc. petitioners took forcible possession of bhaini. On 19‑9‑1974, F. I. R. No. 154 was lodged under sections 448/149 and 148, P. P. C. where upon the police moved for action under section 145, Cr. P. C. In the proceeding, the learned Magistrate attached the property and appointed C. N. T. as a receiver on 24‑10‑1974. On 4‑11‑1974, another F. I. R. was lodged under section 307/436, P. P. C. against Muhammad Din etc., respondents. The learned Magistrate after hearing the parties and considering the facts of the case as well as the order of the civil Court, directed by order dated 22‑7‑1976 that Muhammad Din etc. respondents "shall be restored with the possession forthwith." The order was challenged in revision but the learned Sessions Judge noting that "both the parties are facing criminal trials and there had also been firing on taking forcible possession of the land" held that the learned Magistrate was justified in initiating the proceeding under section 145, Cr. P. C. and that there was no illegality in the order passed by him. In this view of the matter, he dismissed the revision petition on 9‑12‑1976.

3. The petitioners then challenged the order of the learned Sessions judge, in revision under section 439, Cr. P. C. before this Court vide Cr. Misc. No. 1084/76, but finding that such revision was not competent, the same was withdrawn and the present petition was filed under section 561‑A, Cr. P. C. with the prayer that the orders of the Courts below be quashed.

4. The main contention advanced at the time of admission of this petition by learned counsel for the petitioners had been that the Civil Court bad granted staus quo on 24‑7‑1975 and as such the petitioners' possession of the bhaini allegedly taken forcibly on 18‑9‑1974, which had been prior to the grant of the order of status quo, could not have been disturbed by the learned Magistrate. In support, a copy of the order of Civil Court passed on 24‑7‑1975, had been furnished. The relevant portion of this order is:

It is clearly inferred from this order the order of status quo bad been issued earlier and not for the first time on 24‑7‑1975. It is to be noted that both the Courts below have held that the order of status quo had been issued by the civil Court initially on 6‑7‑1974. Nothing has been brought to show that the order passed on 6‑7‑1974 had been vacated thereafter. The occurrence of 18‑9‑1974, in which the petitioners had allegedly taken over forcible possession of the bhaini was, therefore, during the subsistence of the order of status quo of the civil Court and as such the forcible possession could not be protected by reference to the civil Court's order. Learned counsel argued that as the matter was already before the civil Court, all questions of possession should be resolved there and not before the Magistrate. For this, he relied on Shah Muhammad v. Haq Nawaz and another (P L D 1970 S C 470) Shah Nawaz etc. v. Sub‑Division Magistrate etc. (P L D 1974 Kar. 124) and M. Asghar Bashir Gora v. Hassan Khan (1975 P Cr. L J 7). All these authorities alongwith many others had come up for discussion before a Division Bench of this Court in Anwar Javad etc. v. Ikramul Haq etc. (P L D 1976 Lah. 1378) and it had been held that where "the civil Court has not regulated the possession, a proceeding under section 145, Cr. P. C. can be maintained". A mere order of maintenances of status quo without reference to any party's possession cannot be said to regulate possession of one or the other party. Anyway, in the present case, order of status quo, if at all, had been violated by the petitioners themselves when they, during the subsistence of that order dated 6‑7‑1974, had allegedly taken over possession of the bhaini on 18‑9‑1974. The party dispossessed could be restored to its possession by recourse to proceeding under section 145, Cr. P. C. notwithstanding A the pendency of the civil suit. In view of the conduct of the parties and the fact as noted by the learned Sessions Judge, that there had been firing in the course of the occurrence, section 145, Cr. P. C. was fully applicable. I, therefore, see no valid reason to invoke the provision of section 561‑A, Cr. P. C. for interfering with the decisions of the Courts below. The petition is dismissed.

Petition dismissed.

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