Muhammad Qamar Ud Din Vs ZIa Ud Din

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

Quashment Petition No. 40-M/2024

Muhammad Qamar Ud Din and others Versus.

Zia Ud Din and others

Date of hearing: 13.08.2025

Present:

Mr. Adnan Aman, Advocate for petitioners.

M/S Amir Gulab Khan and Syed Ahmad Chitrali, Advocates for respondents No. 1 to 4.

ORDER

QAZI JAWAD EHSANULLAH, J.- This petition under Section 561-A, Cr.P.C has been filed petitioners Muhammad Qamar Ud Din and others with the prayer for quashing of order dated 26.06.2024 of the learned Additional Sessions Judge, Chitral Lower whereby their criminal revision petition was dismissed and order dated 05.12.2023 of the learned Assistant Commissioner/Sub- Divisional Magistrate, Chitral Lower was maintained.

2.The sequence of events of the present case is that respondents No. 1 to 4 (hereinafter referred to as complainants) submitted an application to the SHO, Police Station Chitral, seeking legal action against the present petitioners for allegedly raising a wall on the disputed land, which the complainants claimed to have Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah

been in their possession for the past 50/52 years. The matter was referred to the local police for inquiry, who subsequently filed a complaint under Section 145, Cr.P.C.

before the learned Assistant Commissioner on 06.04.2020.

The Court passed a preliminary order attaching the disputed property and directed both parties to file written statements along with lists of witnesses. In the meantime, with the consent of both sides, the learned Magistrate appointed one Shams Ud Din as receiver of the disputed property, directing him to cultivate the land and deposit the sale proceeds of the produce in Court. On 16.06.2020, the petitioners submitted their written statements. On 18.10.2020, counsel for the complainants filed three applications seeking: (i) permission to file affidavits of the complainants’ witnesses; (ii) further examination of PWs Kamal Shah, Anwar Nabi and Muhammad Hayat under Section 540, Cr.P.C. and (iii) impleadment of one Saadat Ud Din. After hearing both sides, the trial court, vide order dated 26.07.2021, allowed the first and third applications while dismissing the request for re- examination of the above-named PWs. Upon recording the evidence of both sides, including that of the Inquiry Officer Ali Nawaz Khan ASI (CW-1), the learned trial Court, vide order dated 08.04.2022, held the complainants entitled to restoration of possession of the disputed land. Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah

Consequently, the receiver was directed to hand over possession to the complainants, which was statedly effectuated on the same date. The petitioners, being aggrieved, filed a revision petition, which was dismissed by the learned Additional Sessions Judge, Chitral Lower, vide judgment dated 28.11.2022. That decision was upheld by this Court through dismissal of Q.P. No. 01- C/2022 vide order dated 02.10.2023 and likewise the apex Court refused leave to appeal against the order of this court on 04.06.2025. It is noteworthy that during pendency of the said quashment petition, the complainants filed an application under Section 22-A, Cr.P.C. for registration of a criminal case against the petitioners, alleging that although possession had been restored to them through the receiver, the petitioners subsequently dispossessed them again. In this regard, paragraphs 6 to 9 of the application being relevant are reproduced as under:

“6. That Respondents second party filed a Quashment Petition bearing No. Cr.M 1-C/2022 with Cr.M 12-C/2022 before August Peshawar High Court Peshawar in which a pre-admission notice was issued and the impugned order was suspended vide order dated 13.01.2023.

7.That vide order dated 29.03.2023 the suspension of impugned order was directed to remain in force.

8.That the Quashment Petition is still pending before the August Peshawar High Court.

9.That the Respondent disturbed the possession of subject - property in the garb of and misuse of the suspension order of August Peshawar High Court Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah

Peshawar dated 11.03.2023, therefore, the Petitioner and his co-party in the proceeding filed an application to SDM Chitral which was marked to SHO Chitral/Respondent No.S.

The complainants subsequently withdrew the said application on 11.10.2023. Following the decision of this Court in the above-mentioned quashment petition, they filed another application, on 25.10.2023, before the Executive Magistrate seeking restoration of their possession over the suit land. This application was allowed vide order dated 05.12.2023, and the revision petition filed by the petitioners against that order was dismissed by the learned revisional Court on 26.06.2024.

Hence the present petition.

3.Learned counsel for the petitioners contends that once possession of the demised property had been restored to the respondents/complainants on 08.04.2022, in compliance with the Magistrate’s order through the receiver, the Magistrate became functus officio and, therefore, lacked jurisdiction to entertain a subsequent application for restoration of possession in pursuance of the said order.

4.Learned counsel for the respondents/

complainants has opposed the petitioners’ contention advanced at the bar, submitting that under Section 145, Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah

Cr.P.C, the Magistrate is fully empowered to restore lawful possession to a party that has been unlawfully dispossessed.

5.Arguments heard and record perused.

6.As to the plea that the Magistrate had become functus officio, arguments were heard in detail and Section 145, Cr.P.C. was gone through. For the facility of reference, the said provision is reproduced herein below:

“145. Procedure where dispute concerning land, etc., is likely to cause breach of peace. (1) Whenever a Magistrate of the 1st Class is satisfied from police-report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statement of their respective claims as respects the fact of actual possession of the subject of dispute.

(2)For the purposes of this section the expression "land or water" includes buildings markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3)A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4)Inquiry as to possession. The Magistrate shall then, without reference to the merits or the claims of any such parties to a right to possess the subject of dispute, pursue the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah

treat the party so dispossessed as if he had been in possession at such date:

Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision, under this section.

(5)Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.

(6)Party in possession to retain possession until legally evicted. If the Magistrate decides that one of the parties was or should under the first proviso to sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed.

(7)When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8)If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof as he thinks fit.

(9)The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10)Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107.

The scheme of this provision clearly indicates that its object is to prevent breaches of the peace arising out of disputes concerning land or water by determining Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah

the fact of actual possession, independent of the merits or title to such property. Once the Magistrate, under sub-section (4), determines which party was in possession at the relevant point in time, particularly within two months preceding the preliminary order, he is empowered to declare such party entitled to possession until eviction in due course of law. Sub- section (6) specifically directs the Magistrate not only to restore possession to the party found entitled but also to forbid any disturbance of such possession until lawful eviction. This command is continuing in nature; it is not exhausted by the mere act of handing over possession once through a receiver. In other words, the Magistrate’s role under Section 145 does not end the moment possession is initially restored. The statute places a corresponding duty on him to ensure that the restored possession remains intact until displaced through lawful process. This intention of the legislature is clearly envisioned from the use of expression “forbidding all disturbance of such possession thereof until evicted therefrom in due course of law” in S.145(6) ibid. Therefore, if after restoration, the possession of successful party is again dispossessed, whether forcibly, wrongfully or under colour of some other order, the Magistrate retains jurisdiction to take Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah

measures to re-secure that possession in order to give effect to his earlier decision. This is not a new adjudication of possession, nor is it the initiation of a fresh proceeding under Section 145; rather, it is a continuation and enforcement of an existing order that remains operative until reversed or superseded by a competent forum. The principle of functus officio applies when a court or tribunal has finally disposed of a matter and lacks authority to revisit or alter its decision except as provided by law. However, in the context of Section 145, the Magistrate’s authority includes an inherent and express power to maintain the status quo he has declared. His task is not merely to decide possession on a given date, but also to ensure compliance with that decision until the lawful rights of the parties are settled in other proceedings, such as a civil suit. Thus, if the petitioners claim ownership or any superior right to possession, their remedy is to institute appropriate proceedings before the competent civil court and obtain possession through due process.

Until that occurs, the Magistrate’s statutory duty under Section 145(6) to protect the possession of the party declared entitled remains active and enforceable.

Consequently, the respondents/complainants, having been restored to possession on 08.04.2022, were legally Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah

entitled to seek the Magistrate’s intervention when that possession was later disturbed. The subsequent application was merely a request to enforce and implement the subsisting order and not for a “second” adjudication of possession. Accordingly, the objection that the Magistrate had become functus officio is misconceived and is untenable in the peculiar facts and circumstances of the present case.

7.Nevertheless, it is noted that when the second application for restoration of possession was moved before the Executive Magistrate on 25.10.2025, it appears to have been entertained on its face, resulting in an order for restoration of possession without affording the other side, i.e the present petitioners, an opportunity of hearing.

In the circumstances, such an opportunity was all the more essential as the petitioners were contesting the matter on substantial grounds, including their categorical assertion that the civil Court had already dismissed a suit for possession filed by the respondents, along with other pleas meriting judicial consideration. Keeping in view the fact that possession had earlier been restored to the respondents on 08.04.2022 but did not remain undisturbed thereafter, it was incumbent upon the learned Magistrate, Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah

before passing any fresh order for restoration, to have heard the petitioners and examined their objections as well. This was necessary not only to ensure observance of the principles of natural justice but also to avoid issuing an order that could potentially conflict with subsisting findings of civil court, if any, or overlook material circumstances bearing upon the matter.

8.In view of the foregoing discussion, this petition is allowed, the impugned orders of the two courts below are hereby set aside and the matter is remanded to the learned Executive Magistrate to afford the petitioners a fair opportunity of hearing and thereafter decide the case strictly in accordance with law. Parties are directed to appear before the learned Executive Magistrate on 21.08.2025. The learned Magistrate is further expected to conclude the proceedings within a period of two months.

An n o u n c ed Dt:13.08.2025 Sd/-

JUDGE

Tajamul/CS | SB: Hon’ble Mr. Justice Jawad Ehsanullah