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Criminal Miscellaneous No. 63 of 1985, heard on 28th May, 1985.

‑‑‑Ss. 561‑A & 145‑‑Quashing of proceedings‑‑Dispute over possession of immovable property‑‑Contention that civil suit being pending and civil Court having passed order with regard to possession of church, interference in criminal proceedings under S. 145,Cr. P.C. was uncalled for and Magistrate would cease to deal with question of possession of such property‑‑Contention, held, correct‑‑Proceedings quashed, in circumstances.

P L D 1970 S C 470 ref.

Mumtaz Ahmad for Applicant.

Ch. Sikandar Hayat Khan for Respondent Nos. 3 and 5.

Date of hearing: 28th May, 1985.

This is an application under section 561‑A, Cr.P.C. for quashment of proceedings in respect of a case under section 145, Cr.P.C. pending in the Court of S.D.M. Liaquatabad.

Briefly stated the relevant facts are that according to the complaint filed under section 145, Cr.P.C. a copy of which is produced and is available on the record petitioner Boota Masih was allowed by the Church Committee to stay in the Church temporarily as he had no accommodation and later on he was not prepared to vacate the said Church. This complaint was given to P.S. North Nazimabad, for the purpose of preliminary enquiry and after the submission of report notice under section 145(1), Cr.P.C. was issued to the petitioner. Petitioner filed his written statement and challenged the jurisdiction of the S.D.M. on the grounds that there was violation of subsections (4) and (6) of section 145, Cr.P.C. It was pointed out to the learned S.D.M. that petitioner was in physical possession of the Church and under subsection (6) of section 145, Cr.P.C. he is to be allowed to retain possession unless he is evicted in due course of law. It was stated in the written statement filed in the Court of learned S.D.M. that petitioner as plaintiff had already filed suit for declaration and injunction on 13‑3‑1984 in respect of the same subject‑matter and the civil Court has granted status quo in pursuance of which he retains possession of the said Church. It is now submitted by the learned counsel for the petitioner that in spite of that the learned Magistrate is proceedings with the case and in these circumstances when civil Suit is pending and the civil Court has passed an order with regard to the possession of the Church, interference in Criminal proceedings under section 145, Cr.P.C. is uncalled for. Reliance is placed on P L D 1970 S C 470 with relevant portion at page 481 wherein it is held that proceedings under section 145, Cr.P.C. are subordinate to a decree or order passed by the civil Court in respect of the same property which is in dispute before the Magistrate and in such circumstances the Magistrate will cease to deal with the question of possession of the land in dispute.

It is further submitted by the counsel for the petitioner that subsequently another suit was filed for declaration and permanent injunction by members of Methodist Awami Church against respondents 3, 4 and 5 who claimed to be members of Baitul Ham Church. Ad interim stay was granted. This suit was filed in December, 1984 which was after the filing of complaint in 145, Cr.P.C. proceedings. It is also stated that even in this suit petitioner is a party and claims to be aligned with Methodist Awami Church. Since this suit is filed after the filing of complaint in the criminal proceedings it is not relevant for the present purpose. In view of the legal position enunciated in the reported case mentioned above, I allow the petition and in consequence quash the proceedings pending in a case under section 145, Cr.P.C. before the learned S. D. M. Liaquatabad.

S. G. D.

Proceedings quashed.

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