Ali Rehman vs Naik Amal Khan.

P L D 2013 Peshawar 61

Before Nisar Hussain Khan and Waqar Ahmad Seth, JJ

ALI RAHMAN and 8 others---Petitioners

Versus

NAIK AMAL KHAN and 11 others---Respondents

Writ Petition No.984 of 2011, decided on 7th February, 2013.

Criminal Procedure Code (V of 1898)---

----S. 145---Constitution of Pakistan, Art. 199---Constitutional petition---Scope and application of S.145, Cr.P.C.---Dispute concerning land likely to cause breach of peace--- Applicability of S.145, Cr.P.C.---Scope---Attachment---Land in question was 'Shamilat' belonging to four tribes---Provisions of S.145, Cr.P.C., were applicable in the case, because object of S.145, Cr.P.C. was prevention of dispute of immovable property likely to cause breach of peace; and to maintain status quo till the controversy was decided by the court of competent jurisdiction---Section 145, Cr.P.C. was aimed to meet an emergent situation (only causing threat to the peace) and same could not be used for settling the rights of the parties---Trial Court under S.145, Cr.P.C. though was legally bound to inquire into the matter, but as in present case seven persons had been murdered; and in that respect criminal cases had been registered, there was likelihood of breach of peace between the parties---Trial Court gave opportunity to parties to submit their objections, with regard to the attachment order---No official or private partition had taken place nor any demarcation proceedings had been conducted in that regard---Matter, prima facie, seemed to be a civil dispute, and no one could claim his exclusive/absolute ownership- --Basic purpose of proceedings under S.145, Cr.P.C., was to meet an emergent situation in order to maintain peace; and further to enable parties to set the controversies at naught through civil court, regarding title or claim of property in dispute---Mandatory requirement of S.145, Cr.P.C. was that there must not only be a dispute, but it was essential that dispute was likely to cause breach of peace---Where 7/8 murders had been committed over the same dispute, lower forum had rightly passed preliminary order vide which disputed property was attached, with direction that objection, if any, regarding said attachment order could be submitted to the court---Said impugned order not suffering from jurisdictional defect, illegality or material irregularity could not be interfered with by High Court under constitutional jurisdiction.

Sher Muhammad Khan for Petitioners.

Said Hakim for Respondents.

Date of hearing: 7th February, 2013.

JUDGMENT

WAQAR AHMAD SETH, J.---Ali Rehman and others have filed this constitutional petition under Article 199 of Islamic Republic of Pakistan, 1973, challenging the legality and correctness of order dated 7-6-2010 and 31-1-2011 passed by respondents 17 and 19, vide which application of the petitioners for dismissal of complaint and cancellation of order dated 18-1- 2010 was dismissed.

2.Facts of the case are that a complaint under section 145, Cr.P.C. regarding common (Shamilt) land, situated in Guloshah Sahakot was drafted by Post Commander Dagai on which learned Sub-Divisional Magistrate, Dargai, passed a preliminary order on 18-1-2010, vide which the disputed property was attached with the direction that the objection, if any, regarding the attachment order can be submitted to court. The petitioner then submitted an application for dismissal of complaint and cancellation of the attachment order but respondent, No.17 dismissed the same, vide order dated 7-6-2010. The petitioner preferred an appeal against the said order but the same was also dismissed by learned Izafi Zila Qazi, Dargai, vide order dated 31-1-2011, hence, the present writ petition.

3.Learned counsel for the petitioners argued that report by Post Commander does not qualify to be treated as complaint under section 145, Cr.P.C. and, thus, preliminary order passed by respondent No.17 is illegal and without lawful authority. He further argued that no evidence on record was brought to justify the impugned orders; therefore, complaint under section 145, Cr.P.C. is not maintainable and liable to dismissal. He submitted that orders of the courts below may be declared as illegal, without lawful authority and ineffective on their rights which are liable to be set aside and the complaint may be dismissed.

4.Learned counsel for the respondents while supporting the impugned orders contended that the findings of the Courts below are within the framework of law and there is no illegality or irregularity in exercise of jurisdiction by the courts below, so, the same cannot be interfered with in the circumstances.

5.We have heard learned counsel for the parties and have gone through record.

6.Admittedly, the land in question is shamilat belonging to four tribes, therefore, provisions of section 145, Cr.P.C. are applicable because object of section 145 is prevention of dispute of immoveable property likely to cause breach of peace and to maintain status quo till the controversy is decided by the court of competent jurisdiction. This section aimed to meet an emergent situation only causing threat to the peace and the same cannot be used for settling the rights of the parties. Though, the trial court under section 145(4) Cr.P.C. is legally bound to inquire into the matter but it is on record that seven persons have been murdered and in this respect criminal cases have been registered, so, keeping in view the facts and circumstances of the case, there is likelihood of breach of peace between the parties. Besides the above, the trial court gave opportunity to parties to submit their objections, if any, with regard to the attachment order.

7.The present petitioners were required to have filed their objections/reply or claim before the Divisional Magistrate/respondent No.17 as per order dated 18-1-2010. Moreover, it is on record that till today no official or private partition has taken place neither any demarcation proceedings have been conducted, in this regard. The matter prima facie, seems to be a civil dispute and no one, at present can claim its exclusive/absolute ownership.

8.The basic purpose of proceedings under section 145, Cr.P.C. is to meet an emergent situation in order to maintain peace and further to enable parties to set the controversies at naught through civil court regarding title or claim of property in dispute. It is mandatory requirement of section 145, Cr.P.C. that there must not only be a dispute but it is essential that a dispute is likely to cause breach of peace, thus, in the given circumstances, when already 7/8 murders have been committed over the same dispute, therefore, the learned lower forums rightly and legally passed the impugned orders. The impugned orders are concurrent, which require interference only when the same are suffering from jurisdictional defect, illegality or material irregularity but nothing has been established on record.

Keeping in view the above discussion, there is no force in the petition, which is hereby dismissed.

HBT/110/P Petition dismissed.