' The petitioner contends that he along with his two brothers started a business of video centre and video games with the names of Ali Video Centre and Naseer Video Centre at Qalandarpura and Diyal House, Tulsipura, Harbanspura, Lahore. The above business was established in rented shops.
That unfortunately one brother of the petitioner died. After his death, his wife, respondent No,1 started claiming that the above mentioned business was established by her late husband only and after his demise respondent No,1 and her children are the real owners of the business. In the background of above dispute, respondent No,1 also manoeuvred registrations of a case vide F.I.R.
No,259 of 2004 at Police Station Harbanspura.
2. That respondent No,1 filed an application under section 145, Cr.P.C. Before respondent No,2.
Respondent No,2 on 4-8-2004 called a report from the S.H.O. The S.H.O. Was further directed to prevent removing of the articles, subject-matter of business in the shops. On 6-10-2004, respondent No,2 further directed the S.H.O. To seal the business articles. That the petitioner filed a revision petition before the learned respondent No,3, the revision was dismissed on 3-11-2004. The petitioner has impugned orders of respondents Nos.2 and 3.
3. The main argument of the learned counsel for the petitioner is that under section 145, Cr.P.C.
Buildings, market, fisheries, crops or other produce of land can be attached but not things which are kept in a shop for the purpose of sale or rent i,e, V.C.Rs, Video Cassettes, etc.
4. On the contrary, the learned counsel for respondent No,1 and the learned Additional Advocate- General contend that subsection (2) of section 145, Cr.P.C. Includes above articles also as they should be considered part and parcel of the shops which have been sealed under section 145, Cr.P.C.
5. The learned counsel for the petitioner further contends that there was no dispute or apprehension of law and order situation, therefore, there was no justification to seal the premises.
6. I have heard the learned counsel for the parties.
7. As stated above, there is a dispute between petitioner and respondent No,1, that is why, above- mentioned F.I.R. Has been registered. Respondent No,1 has clearly and specifically alleged that after sad demise of her late husband she.Was thrown out from her house after causing torture by petitioner, etc. That forced her to seek police help. The learned Magistrate and learned Additional Sessions Judge have also recorded the above-mentioned incidents in detail in their respective orders. For example, on page 4 of the order of the learned Sessions Judge, dated 3-11-2004, the learned Additional Sessions Judge recorded, "In these circumstances, the parents of respondent No,2 tried to get possession or share from the business in dispute but the petitioners attacked on them and injured aged parents along with aunt of respondent No,2 whereupon, a case F.I.R. No,249 of '2004 with Police Station Harbanspura, Lahore has been registered. The S.H.O. Concerned has also reported that there is a dispute between the parties regarding the shop and there is apprehension of breach of peace". The above findings leave no doubt in mind that there is a dispute and there was a situation which threatened peace and it could have been repeated by the parties as well. Therefore, it is not correct on part of the petitioner to say that there is no threat to the law and order situation.
8. However, I agree with the petitioner's learned counsel that the articles kept in a shop, like facts of the present case, are not subject to attachment or sealing under section 145, Cr.P.C. Briefly, it was held by this Court in Sheikh Sarwar Ali v. The State PLD 1987 Lah. 633, which "the jurisdiction vesting in the Court under section 145, Cr.P.C. Is in regard to a dispute likely to cause a breach of the piece, "concerning any land or water or the boundaries thereof". The expression "land" is defined in subsection (2) of section 145, Cr.P.C. Buildings, market, fisheries, crops or other produce of land. The house/shop is, therefore, land within the meaning of section 145(2), Cr.P.C., but as the land commodity in question was a house the commodity lying therein could not be said to be its produce. (Underlining is mine).
9. Therefore, as in the above cited case, the house was treated as land within the meaning of section 145, Cr.P.C. In the instant case, the shops are also treated as land within the meaning of section 145, Cr.P.C., but as commodity lying in the house could not be said to be its produce, the video cassettes, etc. Subject-matter of the shop in the present case can also not be treated as produce of land.
10. Despite my above finding, if we go through the material and documents on record, it is clear that the learned Magistrate had not ordered to the S.H.O. To seal the articles lying in the shop on the permanent basis, the purpose to pass impugned order was to save them from the damage, removal or misappropriation. For example, the learned Additional Sessions Judge has recorded on page 4 of his order as under:--
11. The learned Special Magistrate passed an order on 4-8-2004 and directed S.H.O. Harbanspura to make necessary arrangements for restraining the petitioners from removing the disputed articles but even then the petitioners continued to run business delivering the V.C.Rs, and T.Vs. On rent. The respondent party, (respondent No,1) got through a fake person a V.C.R. From shop and produced the same before the learned lower Court, whereupon, the learned Court passed the order dated 6- 10-2004 and directed the S.H.O. Harbanspura to seal the disputed shop. The bare perusal of section 145, Cr.P.C. Makes it clear that the learned lower Court can pass any interim order for protection of disputed property or safeguard interest of any suffering party. If it finds that till the completion of proceedings and collecting evidence such property will be damaged, removed or misappropriated."
12. The above order of the learned Additional Sessions Judge, shows that respondent No,1 had obtained a V.C.R. On rent through a fake person to prove that petitioners were doing business of the articles of the shop in dispute despite the earlier Court orders, the above fact forced learned Magistrate to pass order on 6-10-2004 to protect the articles lying in the shop. Therefore, for the purpose for which impugned order, dated 6-10-2004 was passed, it was an interim order and for a limited purpose B only. It cannot be treated violative of provisions of section 145, Cr.P.C. For the above reasons, I do not find any fault with impugned order of the learned Magistrate dated 6-10- 2004 and order of the learned Additional Sessions Judge of 3-11-2004. Hence for the same reasons, this writ petition is dismissed.