MUKHTAR AHMED and 2 others vs THE STATE through AdvocateGeneral and another

' M.A. SHAHID SIDDIQUI, J.--- Mukhtar Ahmad, Ashfaq Ahmad and Altaf Ahmad petitioners through this miscellaneous petition under section 561-A, Cr.P.C. Have prayed for quashing the order dated 24-9-2004 passed by a learned Judicial Magistrate at I3akhar under section 145, Cr.P.C. Which a learned Additional Sessions Judge, Bhakkar was also pleased to up hold vide judgment dated 6-1- 2005.

2. The dispute relates to Ihata No,95 situated in Chak No,48/TDA, Tehsil and District Bhakkar which according to the petitioners was allotted to them in the year 1996-97. Case of Pervaiz respondent No,2 is that the said Ihata was allotted to his paternal uncle Muhammad Sharif in the year 1990, who had paid all the dues to the Government. Muhammad Sharif challenged the allotment of Ihata made in favour of the petitioners before the Executive District Officer (Revenue), Bhakkar by way of an appeal and got the allotment in favour of the petitioners cancelled on 31-12-2002. The petitioners preferred a revision petition which is still pending before a Member, Board of Revenue, Punjab, Lahore.

3. At the instance of the respondent No,2 the S.H.O. Police Station, Sarai Alamgir, apprehending breach of peace instituted a complaint/ qalandra dated 7-3-2003. The learned Area Magistrate vide impugned order dated 24-7-2004 ordered attachment of the Ihata in dispute till the final petitioners before the Board of Revenue. Pursuant to the order dated 24-9-2004 the Naib Tehsildar, Bhakkar ejected Mukhtar Ahmad petitioner from the disputed Ihata on 7-4-2003, prepared an inventory of the articles lying there and sealed the premises. Both the parties challenged the proceedings through separate revision petitions which a learned Additional District Judge, Bhakkat was pleased to dismiss vide dated 6-1-2005. Hence, this petition.

4. After hearing the learned counsel for the parties and going through record. It has been found that the petitioners claiming to be in possession of the disputed Ihata had instituted a suit in the year 1999 for perpetual injunction.' The said suit was pending at the time of institution of qalandra by the S. H.O. And also on A 24-9-2004 when the impugned order was passed. The revision petition filed by the petitioners is also still pending adjudication before the Member Board of Revenue, Punjab, Lahore. The law on the subject is settled that pendency of civil suit relating to possessary title to the disputed property constitute a bar to the commencement or continuance of proceedings under section 145, Cr.P.C. The allegation of apprehension of danger to possession and tranquility in such a case can be settled by resort to section 107, Cr.P.G. The proceedings in the instant case have been filed in violation of the principle laid down in the cases of Muhammad Khashif Zia v. Muhammad Sarwar and others (2000 PCr.LJ. 559), Sher Afzal Khan and others v. The State (2001 PCr.LJ. 1568), (PLD 1970 SC 470), Muhammad Ameen v. Master Bashir Ahmad (2006 SCM R 969) and Muhammad Sadiq v. Muhammad Rafiq and others (2006 SCM R 1470).

5. In the above circumstances it was not lawful for the learned Area Magistrate to pass any order under section 145, Cr.P'C. I, therefore,, accept this petition and set aside the impugned order dated 24-9-2004 passed by the learned Area Magistrate. As per report and inventory prepared by the Naib Tehsildar, Bhakkar dated 7-4-2003 the disputed Ihata was in physical possession of the petitioners as such the petitioners' possession shall be restored and the articles mentioned in the inventory shall also be returned to them.