' This petition is directed against the order of the learned Additional Sessions Judge, Lahore, dated 22nd October, 1979 and raises an important question as to whether a Magistrate in the exercise of his powers under section 145 of the Criminal Procedure Code can seal a premises in case of emergency.
2. Briefly the facts of the case are that on 15th June, 1979 the proceedings under section 145 of the Criminal Procedure Code were initiated by the _Police Station Mughalpura. An application was made by the petitioners to the police that there was a possibility of the breach of peace in relation to the house built on Khasra No, 2283 at Shalimar Link Road, opposite Shalimar Cinema, Mughalpura, Lahore. This had been occasioned on the respondent No, 1 having illegally occupied the property in question. The petitioners claimed the property on the basis of a registered sale deed dated 22nd February, 1979 having been made in their favour by Abdul Aziz through Professor S. Nadeem Ahmed as his attorney and they claimed possession of the property in question since 1964, Mr. Gulzar Muhammad Bhatti, Magistrate First Class passed the initial order on 24th July, 1979 attached the premises and the possession was taken from the petitioners. In pursuance to the attachment order the local police sealed the premises. On the revision having been filed by the respondent No, 1, the learned Additional Sessions Judge, Lahore vide his order dated 7th August, 1979 set aside the order of sealing, however, the order relating to the attachment of the property was maintained. Against this order a writ petition was filed in this Court which was dismissed in limine by my order dated 18th August, 1979 and it was observed that since the order of attachment has not been withdraWn by the learned Additional Sessions Judge, therefore, keeping in view the situation at the spot the Magistrate was commitment to pass any legal order. On 28th August, 1979 the order sealing the premises was passed by the Magistrate. On the revision filed by the respondent the Additional Sessions Judge, vide his order dated 27th October, 1979 accepted the revision and set aside the order of sealing on the ground that the learned Magistrate did not have the power to seal the premises in exercise of his power under section 145 of the Cr. P. C.
3. The learned counsel for the petitioners has argued that the power of attachment as given under subsection (4) of section 145 included the power to seal the premises. The learned counsel for the respondent on the other hand, has refuted the proposition and submits the Magistrate has any such power in order to appreciate the point involved the pro Visions of sections 145 and 146, Cr. P. C.
Be examined.
4. Section 145 contemplates that whenever a District Magistrate; Sub-Divisional Magistrate or a Magistrate of First Class is satisfied from a police report or other information that a dispute likely to cause a breach of peace exists he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court in person or by pleader within a specified time and to put in written statements of the respective claims as respects the fact of actual possession of the subject of dispute. Sub-clause (2) provides the the word 'expression' land or water used in sub-clause (1) would include buildings, markets, fisheries, crops or other produce of land, and the rents of the profits of any such property. Subsection (3) provides the manner in which the order passed in sub-clause (1) is to be served. Under subsection
(4) the Magistrate has to hold an inquiry as to which of the parties at the date of the order passed under subsection (1) (commonly known as preliminary order) was in possession of the subject.
Matter of dispute. This inquiry is to be made on the basis of the written statements, statements of the parties in Court and such other evidence as the Magistrate may allow the parties to adduce. If it appears to the Magistrate after the inquiry made under this subsection that any party has within two months next before the date of such order been forcibly or wrongfully dispossessed he may treat the party so dispossessed as if he had been in possession at such date. This proviso is followed by another provision in subsection (4) which empowers the Magistrate to attach the subject of dispute pending his decision under section 145. The proviso reads as follows :- "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."
' Subsection (5) empowers the parties or any other person to show the Magistrate that no such dispute as stated in subsection (I) exists or has existed the Magistrate shall cancel his order and further proceedings thereon shall be stayed. If no such order is passed the order of the Magistrate under subsection (I) shall be final. Subsection (6) provides that if the Magistrate decides that one of the parties was or under the first proviso to subsection (4) be treated to be in such possession of the subject of dispute, 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. Under this subsection a Magistrate is permitted to restore possession to the party forcibly and wrongfully dispossessed. Under subsection (8) the Magistrate is competent to dispose of any crop or other produce of the property which are subject of the proceedings if the same are subject to speedy and natural decay.
5. Section 146 of the Ct. P. C. Deals with the powers of the Magis trate to attach subject of the dispute. Subsection (1) provides that if the Magistrate decides that none of the parties was then in such possession or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it, until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof. The Magistrate who has attached the subject of dispute has the powers to withdraw the attachment at any time if he satisfies that there was no longer any likelihood of the breach of the peace in regard to the subject of dispute. Under sub-clause (2) when the Magistrate attaches the subject of dispute, he may if he thinks fit appoint a receiver thereof, who subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure. This power can only be exercised if no receiver has been appointed by any civil Court. This power has been further subject to the condition that even if the receiver has been appointed by any civil Court subsequent to his appointing the receiver of the property, the possession shall be made over to the receiver appointed by the civil Court by the receiver appointed by the Magistrate who shall thereupon be discharged.
6. From the perusal of section 145 and section 146 of the Criminal Procedure Code it would be, therefore, clear that the power of the attachment can be exercised by a Magistrate under the second proviso to subsection (4) of section 145 in cases of emergency during the pendency of inquiry and under subsection (1) of section 146 if the Magistrate decides that none of the parties was then in such possession or his unable to satisfy himself as to which of them was then in such possession of the subject of dispute and this is to be done as an interim arrangement on the conditions laid down in the aforesaid sections. Now, therefore, the question for determination that arises is whether a Magistrate in the exercise of his aforesaid powers to attach the subject of dispute is competent to order sealing of the premises in cases of emergency under the first proviso and in case he is unable to decide as to which of the parties was in such a possession under subsection (1) of section 146,
7. The learned counsel for the petitioners has contended that the term 'attachment' is comprehensive and includes the powers of sealing the premises. It is further argued that if such a power is taken away from the Magistrate or the power to attach the property is taken in its ordinary sense, the powers given under 2nd proviso to sub-para (4) of section 145 and sub-pars (1) of section 146 shall be rendered nugatory,
8. The learned counsel for the petitioners has relied on the following judgments in support of his contentions. In Iftikhar Hussain Gilani v. The State (1) the facts were that an F.
1. R. Was lodged by one Syed Iqbal Hussain that the house in dispute was in illegal possession of one Abdul Aziz. The latter, however, vacated the house but before the 'complainant. Could take possession of the same his brother Iftikhar Hussain brought his luggage and occupied the house illegally and when the complainant reached the house along with his son he found Iftikhar Hussain already in possession of the house in question. It was further stated that when the son of the complainant asked Iftikhar Hussain to come out of the house the latter fired at him with his pistol, but missed the shot. It was under these circumstances the matter was reported to the police and a case under section 307/448/452 P. P. C. Was registered against Iftikhar Hussain and proceedings under section 145, Cr. P. C. Were initiated over the dispute of possession of the house. A petition for quashment was. Filed in the High Court and it was held that according to the report lodged by -the complainant his brother Iftikhar Hussain was already in occupation of the house before he reached there and as such the proceedings under section 145, Cr. P. C. Were uncalled for and were abuse of the process of Court. This petition was accepted. The proceedings were quashed and the house which had been ordered to be sealed in the proceedings was ordered to be restored to the person who was in occupation at the time. It was in this connection that the question of the orders of sealing the premises in proceedings under section 145, Cr. P. C. Was examined and it was observed as follows :- "3. The present petition has been filed for abashment of proceedings under section 145 read with section 107/150, Cr.P.C. Titled `State v. Iftikhar Hussain Gilani' pending in the Court of Sh. Sirajud Din, M. I. C. Lahore. It was contended by the learned counsel for the petitioner that Mr. Ahmad Zaki, S. H.
0. Had no power under law to order the sealing of the house in question and it is only the learned Magistrate seized of the matter who could pass such an order. Learned counsel for the complainant on the other hand submitted that the
(1) 1978 P Cr. L 513 ' S.H.O. Was authorised to pass such an order under section 149, Cr. P. C. And it was under that section that the order in question had been passed by him. I am of the view that this contention has no force. A copy of a portion of the police file wherein Ahmad Zaki, S. H.
0. Has mentioned the sealing of the house clearly states that he has done so under section 145, Cr.
P. C. Moreover, section 149, Cr. P. C. Does not give him any such powers. This view is supported by a Division Bench of the Allahabad High Court in AIR 1925 All.
165."
9. In Arshad Mahmood etc. v. Masud Khan etc. (1) the question of attachment of subject of dispute under subsection (4) of section 145, in case of an emergency .Was examined. The question for determination in the case was that once a Magistrate considers the case to be one of emergency and invoking the powers vested in him under the second proviso to subsection (4) of section 145 attaches the property what lwere his powers to deal with the property so attached ? The question was replied in a way to suggest that having attached the property the Magistrate was not absolutely helpless to deal with it in a proper manner in the absence of any specific provision empowering him to appoint a receiver. The observations are relevant for the determination of the present question. It cannot be said that in cases of emergency the Magistrate is helpless to pass any order of attachment keeping in view the extreme emergency. The word 'attachment' as used in sections 145, and 146 has been interpreted in various decisions. In Mowa Lai v, Emperor (2) it was observed that attachment under section 145, may have the same effect as an attachment under the Civil Procedure Code. It may possibly amount to something more than that i,e, to say after attachment the Magistrate may take steps for the proper care and custody of the property and prevent the removal of the property by any of the rival claimants or strangers. In Gopala Aiyar v.
Krishan Swamy lyer (3) it was observed that an order of attachment made under section 146 of the Cr. P. C. Means taking and keeping of possession of the subject of dispute and it was further held that the same meaning be given to the word 'attachment' undersection 145. I am also fortified by the further observation made in other judgments that the object of attachment under the said provisions is to keep effective control of the subject in dispute so as to prevent the contesting parties from committing a breach of the peace in their attempts to obtain physical possession. A mere restraint on alienation would generally be of no use in preventing a breach of the peace, therefore, to give the power of attachment to a Magistrate under sections 145 and 146 without the powers of sealing the premises in the case of extreme emergency the object with which section 145, is enacted will be frustrated. In order to keep possession the Magistrate may act through some agent or by sealing the premises keeping in view the emergency.
10. The learned counsel for the respondent, on the other hand, has relied on Muhammad Amin v.
Muhammad Jamil (4). This judgment does not deal with the point under examination. It simply lays down that under second proviso to subsection (4) of section 145, a Magistrate
(1) PLD 1969 Lah. 74 (2) AIR 1918 Pat. 197
(3) AIR 1920 Mad, 209 (4) 1970 P Cr. L J 192 ' is competent to attach the subject-matter of dispute to which there is no dispute. The question for examination in this case is as to what he should do after the property is attached and in what manner he should deal with the property and for what purpose Similarly another judgment Shah Muhammad v. Hail Nawaz and another (I) relied upon has no relevancy to the present case. This was a case where the property which was already the subject-matter of an order of the civil Court regulating its possession during the pendency of the suit was considered. The order of the Additional District Magistrate passing an order under section 145, Cr. P. C. In the circumstances when the possession was already regulated under the order of a Civil Court and directing the police to seal the disputed premises the order was held by the Supreme Court to be clearly illegal and was accordingly set aside. Here the order of sealing was set aside on a different ground and not where the order of sealing may be passed keeping in view the emergency. The observation of their Lordships in this behalf is quoted below, :- "The conclusion, we have reached thus, is that a case in which a civil Court is already seized with the subject-matter of dispute and has passed an order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite-party from interfering with the possession of the decree-holder fall outside the jurisdiction of a Magistrate under section 145, Cr. P. C. Action can of course be taken always under sections 107 and 151, of the Criminal Procedure Code to prevent breach of peace in case of this nature, but no order for attachment of the property can be made. In the present case the appellant had filed a suit in a civil Court on the 12th September, 1969, against the respondent for a declaration that he was a tenant of the disputed property and for grant of permanent injunction restraining the respondent from interfering with his possession. An ad interim injunction was granted by the Court on the 13th September, 1969, for maintaining status quo i,e, the possession of the plaintiff was not to be disturbed. This order was in operation when the Additional District Magistrate, Gujranwala on the 1st October, 1969, passed An order under section 145, (1) of the Criminal Procedure Code and directed the police to seal the disputed premises. This in effect dispossessed the appellant and thereby cancelled the order of the civil Court dated the 13th September 1969. The order was in our view clearly illegal, no matter how wide the scope of section 1.45 of the Criminal Procedure Code may be."
11. The upshot of the above discussion is that a Magistrate exercising the powers under second proviso to subsection (4) of section 145 during the inquiry in cases of extreme emergency can attach the pro.." party and deal with it, in any manner, so as to achieve the objects or section 145.
Similarly after the inquiry the Magistrate has the power attach the property and to deal with the same in any manner. The order of the learned Additional Sessions Judge, therefore, setting aside the order of sealing the premises was one without lawful authority and is declared
(1) PLD 1970 SC 470 ' as such. The Magistrate shall, therefore, be deemed to be competent to order the sealing of the premises in case of extreme emergency as a natural consequence of the attachment. This writ petition is, therefore, accepted. However, in view of the circumstances of the case there will to no order as to costs,