MUHAMMAD SIDDIQUE and another Versus MUHAMMAD RASHID and 3 others

CHAUDHARY MUHAMMAD TAJ, J.‑‑ ‑----This appeal, by leave, is directed against the judgment passed by the High Court on 22‑5‑2003 whereby an application under section 561‑A, Cr.P.C. was dismissed.

2. The facts are that two suits titled Muhammad Siddique and others v. Muhammad Afzal and others and Muhammad Afzal v. Muhammad Siddique and others were filed in the Court of Additional Sub‑Judge, Mirpur by the parties herein. The former related to declaration while the other suit was filed for possession. The trial Court through a consolidated order issued the stay order in the following terms to both the suits:‑‑

3. Thereafter, the prosecution filed a complaint under sections 145, 107, and 150, Cr.P.C. through Police Station Afzalpur before Magistrate First Class (Revenue Assistant) Mirpur. The trial Magistrate while proceeding with it attached the subject of dispute i.e. three Marlas land comprising Survey No.488 and also issued notices to the parties in relation to inquiry about the possession. This order was challenged before the High Court under section 561‑A, Cr.P.C. on the ground that the Civil Court had already regulated the possession as such the Magistrate had no jurisdiction to proceed with the matter: The learned Judge in the High Court dismissed the application as, according to him the remedy in shape of revision is provided, therefore, inherent jurisdiction cannot be invoked. The order was challenged through this appeal.

4. Mr. Muhammad Yunus Arvi, the learned counsel for the appellants; contended that the Civil Court had already regulated the possession through a consolidated order passed in, civil suits while dealing with the application for issuance of interim relief. It was argued that the said order still holds the fields. The Magistrate who proceeded under section 145, Cr.P.C. had no jurisdiction to entertain the proceedings. It was also argued that the learned Judge in the High Court fell in error in holding that the aggrieved person can approach the revisional Court for the redressal of his grievance. It was maintained that the learned Judge in the High Court agreed with the submissions of the learned counsel for the appellants that the Magistrate had no lawful jurisdiction to proceed under section 145, Cr.P.C. and thus, attach the subject of dispute. The learned counsel referred to the following authorities in support of his contentions:‑‑

(1) The State and another v. Mirza Javed Iqbal 2001 PCr.LJ 1257, (2) Muhammad Sharif Khan and 2 others v. Khan Muhammad Khan PLD 1982 (AJ&K) 49 (3) Muhammad Rashid v. Hafiz Muhammad Siddiq PLD 1997 SC (AJ&K) 20.

5. Ch. Jehandad Khan, the learned counsel appearing from the opposite side, contended that there was serious, apprehension of breach of peace, therefore, it was a lawful exercise of jurisdiction by the Magistrate. The learned counsel also argued that the appellants herein in violation of stay order started construction over the disputed property. It was also argued that there is no legal bar in initiation of proceedings under section 145, Cr.P.C. in spite of issuance of a temporary injunction. The learned counsel referred to the following authorities in support of his assertions:‑--

(1) Muhammad Usman and 3 others v. Muhammad Hussain and 10 others 1999 PCr.LJ 107, (2) Ghulam Muhammad v. Muhammad Ismail and 2 others PLD 1976 Lah. 570, (3) Muhammad Shaft v. Additional District and Sessions Judge and others 2002 SCMR 1280, (4) Shumail Munir v. State PLD 1999 Cr.C. (Lah.) 887, (5) Muhammad Bux v. Sub‑Divisional Magistrate, Sub‑Division Math, District Badin and another PLD 1999 Kar. 366.

6. We have heard the learned counsel for the parties and also gone through the record. The trial Magistrate initiated proceedings under sections 145, 150 and 107, Cr.P.C. on the complaint filed by Police Station Afzalpur in respect of the subject of dispute and also attached it in view of the apprehension of breach of peace. The appellants herein approached the High Court through inherent powers vested in it under section 561‑A, Cr.P.C. but the application was dismissed on the ground that the remedy in the shape of revision is provided therefore, inherent powers under section 561‑A, Cr.P.C. cannot be exercised.

7. Before adverting to the controversy whether the Magistrate had the jurisdiction to proceed under section 145, Cr.P.C. or not, it is relevant to state that it is not disputed between the parties that an injunction was issued by the Court of competent jurisdiction whereby the possession of the suit‑land was regulated. The learned counsel for the respondents raised two objections: (1) That the trial Magistrate in spite of possession having been regulated by the Civil Court, had the jurisdiction to proceed under section 145, Cr.P.C., if the apprehension of breach of peach exists. (2) The order was defended on the ground that extraordinary inherent powers could not be invoked in view of normal remedy of revision which could be availed before the Sessions Judge or the District Magistrate.

8. So far as the first point is concerned, that merits no consideration for the simple reason that the learned Judge in the High Court also arrived at the same conclusion that after issuance of stay order by the competent Civil Court and thereby regulating the possession, the Magistrate had no lawful jurisdiction to proceed. The relevant portion of the judgment is reproduced:‑‑

"

13. I have had opportunity to go through the case‑law submitted at Bar. No doubt it is settled principle of law that when possession is regulated through a temporary injunction in a civil suit, the proceedings under section 145, Cr.P.C. cannot be initiated by a Magistrate on account of ouster of jurisdiction. There is no second opinion that ultimate arbiter is the Civil Court and when the Civil Court is seized with the matter, the Criminal Court should abstain its hands to interfere into jurisdiction of Civil Court. However, jurisdiction of High Court under section 561‑A, Cr.P.C. is additional jurisdiction and it can be invoked only in the interest of justice to redress grievances for which no other procedure is available. When a matter is directly covered by a specific provision of Cr.P.C. and a person without exhausting other legal remedy available to him invokes inherent powers of this Court, he cannot be allowed to do so ..".

9. The respondents did not challenge the aforesaid findings recorded by the High Court through any appeal or revision, therefore, the respondents cannot be allowed to agitate the aforesaid point. The only point to be resolved is whether the remedy to an aggrieved person lies in revisional jurisdiction alone and not under the inherent powers vested under section 561, Cr.P.C. It may be stated that proceedings under section 145, Cr.P.C. are subordinate to a decree or order passed by the Civil Court in respect of the property in dispute before the Magistrate. The primary concern of the proceedings under the Criminal Procedure Code is to prevent breach of peace arising out of a dispute concerning the land or water. These proceedings though concern the subject‑matter of dispute between the contesting parties do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a Civil Court, therefore, if the Civil Court finally decides or through any interim injunction regulates the possession of the subject‑matter of dispute in such case if apprehension of breach of peace prevails the Magistrate can take action under sections 107 and 151, Cr.P.C. but he cannot take action under section 145, Cr.P.C. The proceedings under section 145, Cr.P.C. in such situation are illegal and without jurisdiction.

10. A similar situation arose before this Court in a case reported as Suleman Khan v. Abdul Aziz and 2 others 1983 PCr.LJ SC (AJ&K) 2590 where the controversy was resolved in the following words:‑‑

"13 ..... The fact that the order of attachment, dated 11 th June, 1978 was never implemented, coupled with the subsequent events including the counter civil proceedings, hardly justify to allow the case under section 145, Cr.P.C. to continue further. It is, therefore, ordered that the proceedings instituted on 5th June, 1978 are unwarranted and they are become infructuous in the light of the order of the Magistrate, dated 1 st August, 1982 and the same are hereby quashed."

The proposition also came under consideration before the learned Chief Justice in the High Court in Dil Muhammad v. Noor Muhammad and 4 others PLD 1990 (AJ&K) 15 where the same was resolved at page 18 in the following manner:‑‑

"The next question pertinent to the propositions is as to what remedy is available to avoid likelihood of breach of peace in presence of the recent decree of the Civil Court concerning the possession or an order regulating the possession for, interim period? The proper answer is that when the question of possession of the subject is settled by the decision of a competent Court or its possession is regulated in one of the aforesaid manners, during the pendency of the civil proceedings, on information of likelihood of breach of the peace, the Magistrate is within his power to proceed against the disturbance maker under section 107, Cr.P.C. It is well‑admitted that the provisions of section 107, Cr.P.C. which are general in character, are even attracted in such‑like cases. Besides that in case of a trespass or forcible dispossession of the rightful owner, the Magistrate is equally competent to proceed against the accused for commission of substantive offence."

Similar view was taken, by the Supreme Court of Pakistan in PLD 1970 SC 470 where it was held at page 482 in the following manner:‑‑

"The conclusion, we have reached thus, is that a case in which a Civil Court is already seized with the subject‑matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite party from interfering with the possession of the decree‑holder fall outside the jurisdiction of a Magistrate under section 145, Cr.P.C. Action can of course be taken always under sections 107 and 151 of the Criminal Procedure Code to prevent breach of peace in case of this nature, but no order for attachment of the property can be made. In the present case the appellant had filed a suit in a Civil Court on the 12 th September, 1969, against the respondent for a declaration that he was a tenant of the disputed property and for grant of permanent injunction restraining the respondent from interfering with his possession. An ad interim injunction was granted by the Court on the 13 th September, 1969, for maintaining status quo. i.e. the possession of the plaintiff was not to be disturbed. This order was in operation when the Additional District Magistrate, Gujranwala, on the 1 st October, 1969, passed an order under section 145(1) of the Criminal Procedure Code ...."

11. It may be mentioned that it escaped the attention of the learned Judge in the High Court that revisional jurisdiction has to be exercised by the High Court. However, for convenience the jurisdiction was also conferred upon the District Magistrate and the Sessions Judge concurrently but in case of acceptance of revision the matter again is subject to revisional scrutiny of the High Court.

12. Since the proceedings under section 145, Cr.P.C. are held without jurisdiction in case the possession is regulated in light of the dictum of this Court and other jurisdiction it requires no observation that, inherent jurisdiction can be lawfully invoked to quash the proceedings. We, are, therefore, of the view that the proceedings under section 145, Cr.P.C. in the case in hand are without jurisdiction as such the order passed by the High Court to this extent is not maintainable which is set aside by accepting the appeal. The proceedings before the Magistrate consequently, are quashed.

Before parting with the order it would be necessary to mention that the case‑law referred to by the learned counsel for the parties in view of its distinct facts and circumstances is not squarely applicable to the case in hand as such the same is not discussed.

H.B.T./85/SC(AJ&K) Appeal accepted