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Writ‑Petition No. 366 of 1983, heard on 27th October, 1984.

‑‑‑S.145‑‑Dispute as to possession of immovable property‑‑No immediate apprehension of breach of peace‑‑Civil Court already seized of dispute‑ Summary procedure under S.145, Cr.P.C. not called for.

Civil Court alone could finally determine entitlement of parties in respect of property left by a deceased person. Such dispute cannot be settled by a Court of criminal jurisdiction in proceeding under section 145, Cr.P.C. Practice of using criminal Court for settling civil dispute should not be encouraged. Purpose of Legislature under section 145, Cr.P.C. is prevention of breach of peace and not to provide parties with an opportunity of bringing their civil dispute before a criminal Court or of manoeuvring for possession for purposes of subsequent civil litigation. Where there was no danger at any point of time of any further breach of public peace taking place invocation of summary procedure provided by section 145, Cr. P. C. was no longer called for.

x felt Dilbaz Khan v. The State etc. P L D 1959 (W.P.) Lah. 264; Haji Shamas‑ud‑Din Ismail and others v. The State and others P L D 1969 Kar. 515; Mali'c Manzoor Elahi v. Lala Bishambar Dass and another P L D 1964 S C 137 and Sahira Almas and another v. Gulbaz Khan and 4 others P L D 1974 Lah. 289 ref.

---S.145‑‑Object of S.145‑‑Jurisdiction‑‑Maintenance of status quo, a stopgap arrangement.

Section 145, Cr.P.C. indicates that jurisdiction under this section is a summary one and is meant to maintain status quo between the parties between whom dispute about possession of property is likely to result in a breach of peace. It is just a stopgap arrangement and is to remain operative till rights of parties are determined by a civil Court.

Ijaz Hussain v. Qaisar and another 1983 P Cr. L J 129 rel.

‑‑‑Art. 9‑‑Criminal Procedure Code (V of 1898), 5.145‑‑Constitutional jurisdiction‑‑Mere erroneous conclusions of fact or law, held, did not furnish a valid ground for interference in constitutional jurisdiction.

Muhammad Hussain Munir and others v. Sakandir and others P L D 1974 S C 139 fol.

Sardar Muhammad Ishaq Khan for Petitioners.

Bashir Ahmad Ansari for Respondents.

Date of hearing: 27th October, 1984.

Present Constitutional petition arises out of a dispute relating to possession of House No.B.III.668 and an adjacent plot situated in Mohallah Khawaja Nagar, Hasan Abdal in the following circumstances:‑

Abdul Razzaq Shah owned considerable property in Hasan Abdal. Part of property, situated in the area of Town Committee Hasan Abdal, was transferred in favour of Mst. Sarwar Jan, his wife, vide registered deed dated 6‑10‑1958. Vide will dated 19‑6‑1977, a portion was trans ferred to Mst.Kaneez Fatma his daughter. Possession was statedly transferred to Mst. Sarwar Jan and Mst. Kaneez Fatma during the lifetime of Abdul Razzaq Shah. This property was purchased by Shaukat Ali and others vide sale‑deed dated 17‑12‑1980. Possession was allegedly taken by the vendees, 10 days, prior to the sale in their favour. Two days after the registered sale‑deed, Yousaf Shah a real brother of Abdul Razzaq Shah deceased alongwith his two sons and other helpers, as a result of some conspiracy, broke open the lock of the house and entered into his possession. This forcible and illegal possession, was objected to by the vendees/petitioners. They made a petition to the Superintendent of Police, District Attock complaining of their forcible dispossession from the suit property by Yousaf Shah and others. P.D.S.P. on 7‑2‑1981, recommended action under section 145, Cr. P. C. read with section 107/150, Cr.P.C. against Yousaf Shah and others. Consequently, after investigation, the matter was placed before trial Magistrate. After making preliminary order on 19‑2‑1981 as required by section 145, Cr.P.C., the Magistrate recorded the evidence of both the parties. Vide his order dated 30‑6‑1982, the learned Magistrate 1st Class, Attock passed an order in favour of first party (Shaukat Ali etc.). In revision, however, the order was set aside on 12‑2‑1983 by learned Additional Sessions Judge, Attock and the case was remanded for decision afresh after hearing the parties. In post‑remand proceedings, learned Magistrate, again, on 26‑4‑1983 found in favour of Shaukat Ali etc. (first party) and ordered restoration of possession in their favour. Learned Additional Sessions Judge, vide order dated 10‑8‑1983, interfered in revisional jurisdiction, set aside the proceedings initiated under section 145, Cr.P.C., observing that the petitioners before him shall continue to remain in possession unless decided by a competent forum. Relevant observations are found in paragraph 11 of his order which reads:‑

11. "The basis for the proceedings under section 145, Cr.P.C. was the application which Shaukat Ali etc. had addressed to the Superintendent of Police, Attock. It is stated in that application that they had purchased the disputed property on 17‑12‑1980 and they were forcibly dispossessed from the property 2 days after the execution of the sale‑deed. This application does not bear any date and there is no endorsement on this application which could show the date of its presentation and there are no signatures, or the seal of the office of S.P. This application was not forwarded to Qazi Shabbir Hussain, S.H.O. P.S. Hasan Abdal by the S.P. and the testimony of said S.H.O. had lost all its evidentiary value when he had stated in the Court that he had started the proceedings on that very application sent to him by the S.P. It is also admitted that civil litigation has been going on about this very property between the parties and the suit for partition alongwith the two other civil suits are pending in the civil Court. Both the parties have led no evidence to show that there exists apprehension of breach of peace and order of the Illaqa Magistrate is not in accordance with law. Shaukat Ali etc. have resorted to criminal litigation for the purpose of settling the civil dispute and this tendency of the litigant public for a resort to criminal Court for the purpose of settling the civil dispute has been deplored by the superior Courts. The respondents have not led any cogent and convincing evidence to prove that they were ever put into possession of the disputed property and they were forcibly dispossessed only two days after the registration of the sale‑deed. The proceeding conducted under section 145, Cr.P.C. were without any basis, therefore, I accept this revision petition, set aside the impugned order and hold that the petitioners shall continue to remain in possession unless decided by a competent forum."

2. Shaukat Ali, alongwith Rehmat Ali his brother, have called in question the impugned order dated 10‑8‑1983, in constitutional juris diction, with prayer to declare it to have been passed without lawful authority. Writ petition was admitted to hearing on 5‑11‑1983 and has come up today for final hearing before the Court in presence of Sardar Muhammad Ishaque Khan, Advocate, learned counsel for the petitioners and Mr. Bashir Ahmad Ansari, Advocate learned counsel for the respondents.

3. I have heard learned counsel for the parties and have, with their assistance, examined the evidence. Learned counsel for the petitioners, Sardar Muhammad Ishaque Khan, states that the evidence on record, sufficiently proved purchase of the house and its actual possession by the petitioners and further that they were dispossessed, by force by the other side taking the law into their hands. It was further stated that nowhere in the evidence, Yousaf Shah has deposed about his possession or that how he acquired it. The finding of posses sion and forcible dispossession recorded by the trial Magistrate twice, once in pre‑remand and then in post‑remand proceedings could not have been interfered by the learned Additional Sessions Judge. It was contended that though civil litigation was going on between the parties to get their entitlements determined, yet no injunctive process regulating the possession of the property subject‑matter of proceedings, was issued by the civil Court. In the absence of such an order passed by competent civil Court, regulating the possession of the property in dispute, the jurisdiction of the Magistrate, to initiate and conduct proceedings under section 145, Cr.P.C. was not affected or ousted. Relied on Dilbaz Khan v. The State etc. P L D 1959 (W.P) Lah. 264 to contend that the mere fact that a civil suit is filed in respect of the subject‑matter of the dispute, is by itself not sufficient to oust, jurisdiction of the Magistrate. By the filing of the civil suit the dispute between the parties does not cease to exist and the likelihood of a breach of peace is not anywhere lessened. A temporary injunction issued by the civil Court against a party to dispute, does not stand in the way of the Magistrate taking cognizance under section 145, Cr.P.C While the final determination of the legal rights of the parties rest with a civil Court until the determination of such right the jurisdiction of a Magistrate to take proceedings under section 145, Cr.P.C. was not ousted. The petitioners, he stated, were in peaceable possession of the property and the opponents, had no justification in law, to disturb their possession except in due process of law. Apprehension of breach of peace existed and therefore, proceedings under section 145, Cr.P.C. were rightly initiated by the trial Magistrate at the instance of police.

4. Mr. Bashir Ahmad Ansari, learned counsel appearing for the respondents contended that there was no existing likelihood of breach of peace, which was necessary to initiate proceedings under section 145, Cr.P.C. Learned counsel contended that the primary object of the section was the preservation of peace, therefore, if it was found during the proceedings that there was no likelihood of breach of peace being disturbed, there was no necessity for the Magistrate then to continue the proceedings. It was contended that likelihood of breach of peace must not only exist at the time when the proceedings are initiated but must continue till the proceedings are terminated. In this case, he contended, that Shabbir Hussain, P.W.6 himself stated that there was no danger of immediate breach of peace but only a dispute about the possession was found to exist. It was in this background that he stated, he prepared a Kalandara under section 145, Cr.P.C. and made a prayer under section 150, Cr.P.C. to bind down the parties for keeping peace in addition to the proceedings under section 145, Cr.P.C. Learned counsel, relying on this part of the testimony of Sub‑Inspector, forcefully contended that the jurisdictional fact for initiating and continuing proceedings under section 145, Cr.P.C. was conspicuously absent. This being the situation, he contended, that proceedings under section 145, Cr.P.C. could not be used as a proper and valid substitute for settling the civil dispute, relating to the entitlement of property. Learned counsel also stated, that the mere existence of a dispute between the parties did not justify the exercise of jurisdiction conferred by section 145, Cr.P.C. The only justification he contended was the danger to the public peace. In the absence of any evidence supporting the plea of apprehension of breach of peace, proceedings under section 145, Cr.P.C. were not justified. Learned Additional Sessions Judge, therefore, rightly taking note of the absence of this all important jurisdictional fact, rightly interfered and quashed the proceedings till the matter was finally pronounced upon by the civil Court. Reliance was placed upon Haji Shamas‑ud‑Din Ismail and others v. The State and others P L D 1969 Kar. 515, Malik Manzoor Elahi v. Lala Bishambar Dass and another P L D 1964 S C 137 and Mrs. Sahira Almas and another v. Gulbaz Khan and 4 others P L D 1974 Lah. 289.

5. It is admitted by the parties, that civil dispute, relating to the estate left by Abdul Razzaq Shah, including, the property in dispute, is before civil Court in more than one suits. The disputed matter therefore, is already under the attention of the civil Courts. It is the civil Court alone which can finally determine the entitlement of the parties in respect of the property left by Abdul Razzaq Shah. Thel said dispute cannot be settled, by a Court of criminal jurisdiction in proceedings under section 145, Cr. P. C. and practice of using criminal Court for settling civil disputes should not be encouraged. The purpose of Legislature under section 145, Cr.P.C., is the prevention of the A breach of peace. The object is not to provide parties with an opportunity of bringing their civil disputes before a criminal Court or of manoeuvring for possession for the purposes of subsequent civil litigation that though is often the effect of such proceedings. It is correct that no order, has been placed on file to show that the civil Court has regulated the possession of the property in dispute nonetheless, it has been admitted that suits for partition etc. were already before the civil Court. Yousaf Shah claims to have a share in the property being brother of the deceased. In the application which was submitted to Superintendent of Police, nowhere was it asserted, that a dispute likely to cause breach of peace existed between the parties. The statement of Sub‑Inspector also shows that there was no danger of imminent breach of peace between the parties. . This, would become evident from the fact that only a Kalandara under section 150, Cr.P.C. was prepared by the Police and placed before the Court and no action was taken under section 107, Cr. P. C. It has been observed in case of Malik Manzoor Elahi v. Lala Bishambar Dass and another:‑

"the provisions of section 145, Cr.P.C. read as a whole indicate that there should be a continuing danger of a breach of peace till the time the final order is made. The use of the word "exists" in the present tense in subsection (5) connotes that the dispute must continue td exist even at the time when the objection is raised. The main purpose, of this section being the maintenance of public peace and the prevention of breaches thereof. It would follow that where there is no danger at any point of time of tiny further breach of public peace taking place, then manifestly the invocation of summary procedure provided by this section is no longer called for and should be put an end to."

A reading of section 145, Cr. P. C. clearly indicates that the jurisdiction under this section is a summary one and is meant to maintain status quo between the parties between whom the dispute about they possession of a property is likely to result in a breach of peace. It is just a stopgap arrangement, and is to remain operative, till such time that the rights of the parties are determined by the civil Court. Any decision, therefore, given by the Magistrate, under section 145, Cr. P. C., is subject to determination by the 6ivil Court. The present case, initiated under section 145, Cr. P. C. did not show existence of any serious emergency relating to apprehension of breach of peace justifying action under section 145, Cr.P.C. In Ijaz Hussain v. Qaisar and another 1983 P Cr. L J 129, the Court observed:‑

"Moreover proceedings under section 145, Cr.P.C. are no doubt in the nature of stopgap arrangements and must in disputes as to immovable property yield to order of the civil Courts which alone are competent to determine question of title and right of possession to immovable property. It does not make any difference if civil suit was filed before or after the proceedings under section 145, Cr.P.C. were initiated. As soon as the civil Court has passed the order in respect of the said property, any orders passed, by the Magistrate regarding it have to be subservient thereto."

6. In the instant case, it is not denied that civil suits have been filed in respect of the property, which are still pending before the civil Court. In the absence of serious apprehension of breach of peace, proceedings under section 145, Cr.P.C. particularly in the presence of civil litigation between the parties, claiming rights to the property left by Abdul Razzaq Shah including the property in dispute, to my mind, were improperly initiated. Order passed by the Magistrate has been reversed, in revisional jurisdiction, by learned Additional Sessions Judge. Constitutional jurisdiction, can only be invoked, when the complaint is regarding the errors relating to jurisdiction mere erroneous conclusions of fact or law may not furnish, a valid ground, for inter ference in constitutional jurisdiction. Support can be derived from Abdul Rehman Bajwa v. Sultan and 9 others P L D 1981 S C 522 and Muhammad Hussain Munir and others v. Sakandir and others P L D 1974 S C 139.

7. In the facts and circumstances of this case, I am not inclined to exercise the equitable discretionary jurisdiction, to upset an order passed in revision which otherwise is just and proper. In this view of the matter, I find no force in the writ petition. It fails, and is dismissed hereby with no order as to costs.

M. B. A. Petition dismissed.

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