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The Section 145 Cr.P.C., cannot be applied in Disputes involving Joint Possession of Property, as such matters fall under Civil Jurisdiction --- Islamabad High Court, Islamabad

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The Section 145 Cr.P.C., cannot be applied in Disputes involving Joint Possession of Property, as such matters fall under Civil Jurisdiction --- Islamabad High Court, Islamabad

Islamabad 27-12-2024: In a significant ruling, the Islamabad High Court (IHC), presided over by Ms. Justice Saman Rafat Imtiaz, has set aside concurrent findings by the magistrate and the sessions Court in a dispute over possession of a commercial property jointly owned by the parties. The Court ruled that proceedings under Section 145 of the Code of Criminal Procedure (Cr.P.C.) were not maintainable as both parties were in joint possession of the property.

The case revolved around a commercial plot jointly allotted by the Capital Development Authority (CDA) to Zahoor Ahmed Malik (Petitioner) and Malik Saif ur Rehman (Respondent) for the construction of a shopping mall. A Partnership Deed executed between the parties specified the respondent as responsible for construction. However, disputes arose over possession and alleged breaches of the agreement, leading to complaints, FIRs, and subsequent proceedings under Section 145, Cr.P.C.

The core legal questions addressed by the Court included:

The applicability of Section 145, Cr.P.C., when both parties claim joint possession of the disputed property.
The timeliness of the Section 145 proceedings, considering the alleged dispossession occurred more than six months prior to the complaint.
Whether the magistrate and sessions Court erred in interpreting the Partnership Deed to conclude exclusive possession.

Ms. Justice Saman Rafat Imtiaz held that proceedings under Section 145, Cr.P.C., are not applicable when the property is in joint possession. The Court cited precedents such as Md. Askir Mia Vs. Md. Ayubullah (1971 P Cr.L.J 420) and Makhan Lal Roy Vs. Barada Kanta Roy (11 CWN 512), emphasizing that disputes of this nature should be resolved by civil Courts.

The Court observed that the respondent’s alleged dispossession occurred six months before the complaint, far exceeding the two-month limitation prescribed under Section 145(4), Cr.P.C. The Court referred to Sirajul Haque Vs. Mst. Malka Bibi (2002 MLD 1989) and similar rulings to underscore the procedural bar.

The Court found no evidence to support the respondent’s claim of exclusive possession. It noted that the Partnership Deed did not explicitly transfer possession and that both parties had joint possession as per CDA allotment letters and police reports.

The Court criticized the magistrate and sessions Court for misinterpreting the evidence and overstepping their jurisdiction by determining entitlement rather than actual possession.

Judgment Highlights:

The Writ Petition was allowed, and the orders of the magistrate and sessions Court were set aside.
Possession of the commercial plot was restored to both parties as joint owners.
The Court directed the magistrate to take preventive action under other provisions, such as Sections 107, 144, or 151, Cr.P.C., if necessary, to prevent breaches of peace.

Legal Precedents Referenced: