Mehr MUHAMMAD SARWAR AND OTHERS vs THE STATE AND OTHERS

ORDER

NASIM HASAN SHAH, J.-We find that an error has crept in while recording the finding in paragraph 5 of our order dated 27-11-1984 in Criminal Appeal No, 103 of 1984, which is patent on the face of the record; hence this motion for suo motu review.

The finding that section 249-A is no longer a part of the Criminal Procedure Code because of the repealing provisions of section 2 of the Federals Laws (Revision and Declaration) Ordinance, 1981 read with item No, 235 of the First Schedule, omits from consideration the effect of the saving provisions made in section 7 of the Ordinance, Its consequence is to save the provisions of section 249-A. Hence section 249-A of the Criminal Procedure Code continues to remain on the Statute book.

We would, therefore, direct that paragraph 5 of the order under review should be deleted and this order shall form part of the judgment earlier c passed on 27-11-1984.

The judgment of the Court shall now, as reviewed, reads as follows :- ' NAM HASAN SHAH, J.-The petitioner seeks leave to appeal against the order of a learned Single Judge of the High Court dated 30-10-1984, rejecting his quashment application filed under section 561-A, Cr. P. C.

2. Since the impugned order of the High Court is extremely short and the facts leading to the quashment application are not ascertainable from it, we have had to fall back on the facts as mentioned in the quashment application (Criminal Miscellaneous No, 259/Q/84) filed by the petitioner to ascertain the relevant facts.

3. The facts, briefly stated, appear to be that there was a dispute between the parties over the possession of a certain piece of land. The petitioners filed a civil suit on 12-6-1984 against the respondents praying that they (i e. The respondents) be restrained from interfering with petitioners' possession of the suit land. Along with the suit they also filed an application for temporary injunction, whereupon an interim stay order was issued against respondents No, 2 and 3, on the same day (12-6-1984), to the effect that in case the petitioners are in possession their possession may not be disturbed. The respondents did not file an appeal against this order which therefore became final and is still in force.

4. Subsequently on 24-6-1984 the local S. H.

0. Initiated proceedings under section 145, Cr. P. C. Against the petitioners in the Court of the Assistant Commissioner, Okara.

Thereafter the petitioners filed an application under section 561-A. Cr. P. C. Before the learned High Court, for quashment of the proceedings under section 145, Cr. P. C. Pending against them in the Court of the Assistant Commissioner, Okara. The High Court dismissed it with the following brief order:- "Petitioner should in the first instance make an application under section 249-A, Cr. P. C. Before the trial Court."

Feeling aggrieved, the petitioners have moved this Court for leave to appeal.

5. It requires to be mentioned that in an inquiry under section 145, Cr. P. C. All that a Magistrate is ultimately empowered to do is to regulate the possession of the property in dispute for the time being. So that the apprehended breach of peace is averted. But as held by thisE Court in Shah Muhammad $T. Haq Nawaz and another (1), where the possession of the same property has been regulated by a civil Court, even through a temporary injunction, the matter falls outside the jurisdiction of the learned Magistrate under section 145, Cr. P. C. The relevant portion of the said judgment reads as follows :- "A case in which a civil Court is already seized with the subject-I, matter of dispute and has passed an order regulating possession

(I) P D 1970 SC 470 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-bolder 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. "

6. In view of what has been observed above, the petition is converted into appeal and allowed and the case is remanded to the High Court for G adjudication of the quashment application afresh on merits.