MUHAMMAD SHAFI vs ADDITIONAL DISTRICT & SESSIONS JUDGE and others
This petition for leave to appeal challenged a Lahore High Court judgment that dismissed a constitutional petition against an order of the Additional Sessions Judge. The underlying dispute originated from proceedings initiated under Section 145 of the Code of Criminal Procedure 1898 regarding a property dispute. The Magistrate had initially passed an interim attachment order, which was later withdrawn, but subsequently, the Additional Sessions Judge remanded the matter back to the Magistrate to determine which party was in possession of the property two months prior to the institution of proceedings, as mandated by the statute. The petitioner argued that the existence of pending civil litigation regarding the property title and possession should oust the Magistrate's jurisdiction. The Supreme Court held that the mere pendency of civil suits does not automatically divest a Magistrate of jurisdiction under Section 145, Cr.P.C., especially when no temporary injunction securing possession has been granted. The Court affirmed that the Magistrate must determine the question of possession as required by law, finding no illegality in the remand order.
- Does the mere pendency of a civil suit regarding property title and possession oust the jurisdiction of a Magistrate under Section 145, Code of Criminal Procedure 1898?
- Is a Magistrate required to determine the possession of property two months prior to the institution of proceedings under Section 145, Code of Criminal Procedure 1898?
- Section 145, Code of Criminal Procedure 1898
' MUNIR A. SHEIKH, J.---This petition is directed against the judgment dated 1-11-2001 of the Lahore High Court, Lahore whereby writ petition filed by the petitioner against the order of the learned Additional Sessions Judge has been dismissed.
2. Respondent No, 4 initiated proceedings before the Magistrate on 26-3-1999 under section 145, Cr.P.C. In which an interim order was passed for attachment of the property in dispute on the ground that there was danger of breach of peace as both the parties were in contest with each other about the title and possession of the land. On the application of the petitioner, the said order was withdrawn against which revision petition filed by the respondent was accepted by the learned Additional Sessions Judge through order dated 21-4-2001 and the case remanded to the Magistrate to determine ' in the first instance as required by section 145, Cr.P.C. As to which of the two contesting parties was in possession thereof two months prior to the institution of proceedings and remained in its possession till the date of making order. This order was challenged by the petitioner before the High Court through Constitutional petition which has been dismissed through the impugned judgment dated 1-11-2001 against which leave is sought.
3. Learned counsel for the petitioner submitted that the respondent had earlier filed a suit on 15-3- 1999 for a decree for permanent injunction against the petitioner which was dismissed for non- prosecution. The petitioner's father on 17-3-1999 filed a suit for specific performance of agreement of sale against the owner of the property which was still pending. It appears that in none of the Courts, the petitioner made any averment that in the said suit, an order of temporary injunction was passed in favour of the petitioner specifically to secure his possession. The observation of the learned Judge of the High Court that mere pendency of civil suit regarding property in dispute would not be sufficient to oust the jurisdiction of the Magistrate in these circumstances does not suffer from any illegality. It was rightly pointed out by the learned Additional Sessions Judge that in such-like situation, the Criminal Court was concerned with the position as to the possession within two months of the commencement of the proceedings under section 145, Cr.P.C. Which point since had not been decided by the Magistrate, therefore, the remand of the case for the said purpose did not suffer from any illegality.
4. Learned counsel for the petitioner has failed to satisfy us that the impugned order passed by the High Court is not in accordance with law.
5. For the foregoing reasons, this petition has no merits which is accordingly dismissed and leave refused.
Cited by 2 cases
- Haji ABDULLAH JAN MARWAT vs Prof. BURHAN UD DIN and 3 others 2011 PLD Peshawar 246
- MUHAMMAD SIDDIQUE and another Versus MUHAMMAD RASHID and 3 others 2004 PCRLJ 1096