Find a Lawyer

---Ss. 145 & 561-A--Proceedings under S. 145, Cr.P.C.--Quashing of proceedings--Dispute over administration of Imam Bargah--Civil litigation pending about subject-matter--No injunction issued by civil Court--Parties not denying fight over matter in which many persons injured--Petitioner himself requesting Assistant Commissioner to take measures to avoid conflict--Dispute over immovable property and actual fight taking place between parties--Danger of breach of peace existing- Police being justified in initiating proceedings under S. 145, Cr.P.C. proceedings could not be quashed in circumstances.

Talib H. Rizvi for Petitioner.

Syed Zainul Abideen for Respondent.

Date of hearing: 1st March, 1987.

In brief the facts of this case are stated below:

In proceedings for consolidation of holdings, Iqbal Hussain Shah was allotted some land in village Madoki, Tehsil and District Jhang. There was Imam Bargah in an area of 2 Kanals 17 Marlas in the said land. Sharaf Hussain claimed himself to be the custodian of Imam Bargah where Zahoor Alam (present petitioner) also had his residence. A dispute arose between Sharaf Hussain Shah and Zahoor Alam Shah on account of which Sharaf Hussain Shah on 10- I1-1984, filed a suit for ejectment of Zahoor Alam from the Imam Bargah. As a consequential relief it was prayed that Zahoor Alam be permanently restrained from interfering in the management by Sharaf Hussain the custodian of the Imam Bargah. This suit is still pending. It is admitted by both parties that no interim order was issued by the Civil Court in the said suit. Zahoor Alam also filed a suit against -Sharaf Hussain and Javaid Akbar seeking permanent injunction to restrain them from interfering in his possession without due course of law. Sharaf Hussain put in appearance in the said suit on 4-5-1985 and made statement that he will not eject Zahoor Alam without due course of law. As a result of this statement the suit of Zahoor Alam was dismissed on the same day. It appears that the parties continued to have dispute amongst themselves in spite of the pendency of the civil suit. On 17-9-1985, Zahoor Alam gave an application to Assistant Commissioner, Mang stating therein that Sharaf Hussain etc. are trying to trespass in Imam Bargah; that he apprehends serious danger to peace and prayed for effective security proceedings to maintain peace. Again on 2-11-1985, at about 3-00 p.m. there was fight between Sharaf Hussain Shah and others on one side and Zahoor Alam and others on other side. A case was accordingly registered vide F.I.R. No. 298, dated 5-11-1985 at P.S. Sadar Jhang at the instance of Mukhtar Hussain under section 354/325/148/149, P.P.C. On 2-11-1985, S.I. Sultan Ahmad was present in village Madoki aWngwith Mukhtar, Javaid Akbar and some women who all were injured. in the meanwhile, Zahoor Alam alongwith 4/5 other persons armed with Barchi came there. He tried to cause injuries on the person of Javaid Akbar with Barchi who got aside and saved himself. Zahoor Alam was apprehended at the spot alongwith Barchi by the police. He had no license for the weapon and, therefore, a case under Arms Ordinance was registered against him on that very day vide F.I.R. No. 295. The police in view of strained relations between the parties and the circumstances mentioned above after coming to the conclusion that a dispute likely to cause a breach of peace existed between the parties, filed Calandara under section 145, Cr.P.C. The Assistant Commissioner on 14-11-1985 after perusing the police report and considering the litigation pending between the parties ordered that the Imam Bargah be sealed to avoid any breach of peace. The Assistant Commissioner with consent of the parties appointed Muhammad Khan son of Lal Khan for arbitration in the dispute between the parties. He on 13-5 -1986 filed award before the Assistant Commissioner. According to this award, the disputed land originally belonged to Muhammad Khan son of Lal Khan. It was given by him to one Sher Shah in the year 1937 for temporary residence. Muhammad Khan built Imam Bargah in the said land. There were proceedings of consolidation of holdings in village Madoki as a result of which the said land measuring about 2 Kanals 18 Marlas was allotted to Muhammad Iqbal but it remained in possession of Sher Shah. However, Zahoor Alam developed relations with Sher Shah and started living with him. After some time, on account of the misbehaviour of Zahoor Alain, it became impossible for Sher Shah to continue with the control of Imam Bargah. He wrote down an agreement in favour of Sharaf Hussain on 10-3-1975 and left the place. Sharaf Hussain started looking after Imam Bargah. Zahoor Alam tried to take control of the said property which gave rise to the present dispute. The property was attached and sealed by the Assistant Commissioner, Jhang. This petition was, therefore, filed for quashment of proceedings under section 145, Cr.P.C.

2. In support of this petition the learned counsel for the petitioner contended only one point that the property in dispute being subject matter of a civil suit could not have been attached and sealed under section 145, Cr.P.C. He placed reliance on Shah Muhammad v. Haq Nawaz P L D 1970 SC 470, Shera and others v. Mst. Fatima and another 1971 S C M R 449 and Muhammad Hussain and another v. The State 1986 P Cr. L J 1198. No other point was urged during arguments on behalf of the petitioner. The learned counsel for Sharaf Hussain respondent controverted the contention on behalf of the petitioner. It was submitted that as per facts and circumstances of this case, there was danger of breach of peace on account of possession of immovable property and as such, proceedings under section 145, Cr.P.C. were competent in spite of pendency of the civil suit.

I have considered the respective contentions and have heard the learned counsel appearing for the parties at some length.

3. It is not denied by the parties that there was fight between them one 2-11-1985 during which many persons were injured and on account of I which a case was registered vide F.I.R. No. 298, dated 5-11-1985. The application, dated 17- 8- 1985 by Zahoor Alam (present petitioner) against Sharaf Hussain and others also proves that there was danger of breach of peace between the parties. Zahoor Alam himself requested the Assistant Commissioner, Jhang to take measures to avoid any riot/fight between the parties. It is, therefore, abundantly proved on record firstly that the parties had dispute over immovable property; secondly, that they actually had a fight between themselves over the said property on 2-11-1985; and that the danger of breach of peace existed at the time of initiation of proceedings under section 145, Cr.P.C. The police was, therefore, justified in initiating proceedings under section 145, Cr.P.C. It is correct that a civil suit regarding disputed property is still pending in Civil Court but as admitted by both the learned counsel, the Civil Court did not issue any interim order of the nature of temporary injunction or status quo in the civil suit between the parties. I have carefully gone through the three judgments relied upon by the learned counsel. In all these cases, the Civil Court had issued injunction ordering one party not to disturb the possession of the other party. These judgments are not applicable to the facts of this case because as stated above, the Civil Court did not issue any order in the nature of injunction to restrain any party from interfering in the possession of others in the present dispute. Proceedings in a criminal case can be quashed only if the case is a case of no evidence. In the instant case it was not disputed that criminal and civil litigation is pending between the parties. It is for the Courts to determine the respective rights of the parties after recording their evidence. I am, therefore, not inclined to quash the proceedings under section 145, Cr.P.C. This petition is accordingly dismissed.

Any observation on facts will have no bearing either during trial of civil suit or in the proceedings under section 145, Cr.P.C. All Courts will decide the respective rights of the parties after recording evidence according to law unmindful of any observation in this order.

S.A./Z-13/L Dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.