The facts giving rise to this criminal revision briefly are that on 23-1-71 Abdul Hamid, respondent No. 1 moved a petition under section 145, Cr. P. C. Before the learned Magistrate impleading the present petitioners as respondents along with one Abdul Majid, who is respondent No. 2, before me. The allegations made by Abdul Hamid briefly were that Muhammad Shafi, father of Abdul Hamid and Abdul Majid, respondents and Muhammad Bashir one of the petitioners was the owner of Rehman Silk and Rayon Mills, Madanpura, Lyallpur that Muhammad Shafi had leased out the factory to Abdul Hamid, his brother Abdur Razzaq and to other persons, Abdur Rashid and Abdul Latif petitioners Nos. 1 and 2, respectively, on a monthly rent of Rs. 250 with effect from 18-7-70, Abdul Hamid and his brother had invested a sum of Rs. 10,000 in the factory and so had petitioners Nos. 1 and 2, and all the four lessees jointly started operating the factory when on 7-1-71 Muhammad Shafi, owner/lessor, accompanied by Abdul Hamid visited the factory with a view to recover the lease money for the remaining part of the year when he was told by Abdur Rashid and Abdul Latif to come in the evening. Accordingly they revisited the premises but all the petitioners and Abdul Majid respondent No. 2 allegedly beat up Muhammad Shafi, father and Abdur Razzaq, brother of Abdul Hamid and forcibly threw them out of the factory premises. It was also alleged that in order to cover up the offence, Muhammad Bashir, one of the petitioners got a false case registered against him and other under sec--tion 452/323, P. P. C. It was prayed that in view of imminent danger of breach of peace -over the possession of the factory, proceedings, under section 145, Cr.
P. C. May be initiated.
2. The admitted facts of the case are that on 27-1-71, an initial order under section 145, Cr. P. C. Was passed by the learned Magistrate directing the parties to attend his Court and put in their written statements, presumably after he was satisfied that grounds did exist to justify the making of such an order. The petitioners did not appear before the learned Magistrate in response to the notice. On 11-2-71, he ordered ex parte proceedings against them and adjourned the case to the next day following i.e. 12-2-71 and recorded ex parte evidence comprising of the statements of Muhammad Itfaq, Haji Muhammad Shafi and Abdul Hamid witnesses, produced by Abdul Hamid. On 13-2-71 the present petitioners moved the learned Magistrate for setting aside the ex parte proceedings. This application was allowed by him after hearing 'the learned counsel for the parties, vide order dated 22-2-71 and the case was adjourned to the 25th of February 1971, when the petitioners put in their written statements. Without recording further evidence which he could in his discretion as provided by sub-section (4) of section 145, Cr: P. C. The learned Magistrate passed the impugned order whereby he directed firstly; that the premises in question be sealed till the decision of the case and secondly that the petitioners should execute a bond in the sum of Rs. 1;000 with one surety in the like amount, to keep peace during the pendency of the case.
3. Having heard the learned counsel for the parties, I am clearly of the view that the impugned order cannot be maintained for more than one reasons. In the first instance, a perusal of the impugned order shows that the learned Magistrate placed reliance on the statements of three witnesses, namely, Muhammad Itfaq, Haji Muhammad Shafi and Abdul Hamid but this was done in ex parse proceedings which was set aside by him on 22-2-71 on the application of the present petitioners and as such did not form part of the record. The factual correctness of this position is not controverted by the learned counsel for respondent No. 1. In the circumstances, therefore, one is driven to the unexpected inference that reliance inter alia was placed on a so-called evidence which was non--existent. May be that then: were grounds aliunde available to the learned Magistrate in justification of the impugned order but the impression cannot be avoided that reliance was also placed on statements of three witnesses, which may be deemed to have been quashed by the learned Magistrate himself.
4. Likewise the other operative part of the impugned order whereby the petitioners were directed to execute a bond in the sum of Rs. 1,000 with one surety which cannot be sustained on the short ground that the procedure adopted in the relevant provisions contained in sections 108 and 112, Cr.
P. C. Etc., has not been adhered to in this regard. No doubt under sub--section (10) of section 145, Cr. P C. Recourse could be had to such e proceedings simultaneously with those under section 145, Cr. P. C. Yet the proper procedure can neither be short circuited but much less than dispensed with although the learned counsel for the petitioners tried to justify the course adopted by the learned ;Magistrate in this regard, he could not controvert the factual correctness of the position.
5. The upshot of the discussion, therefore, is that in view of the above position, I allow the petition and set aside the impugned order. This shall not, however, stand in the way of the learned Magistrate in resorting to proceedings under section 145, Cr. P. C. In accordance with law.