1. The petitioners above-named have filed the above petition for quashment of proceedings pending against them under section 145, Cr. P. C. In the Court of Assistant Commissioner and S. D. M. Garden Karachi, vide Case No. 609/82 as well as for quashment of the attachment order dated 19th September, 1982 passed by the said Court, on the facts and grounds mentioned is the memo. Of above petition.
2. The learned Advocate for the petitioners in support of the above petition submitted as under :-
(a) That there is a civil litigation between the parties in respect of the business and the premises in question in the shape of Suits Nos. 2966/ 81 and 1185/82. And as much the proceedings in question have been filed male fidely.
(b) That there was nothing on record of the learned trial Court to warrant taking cognizance of the proceedings in question, as no instance of alleged breach of peace have been cited in the complaint in question and as such the learned trial Court has wrongly assumed jurisdiction.
(c) That the impugned order for attachment of the property passed by the learned trial Court cannot legally be sustained, both on facts and on law and as such is liable to be quashed.
(d) That the respondent No. 2 had initiated these proceedings simply in order to harass and coerce the petitioners in. Respect of the civil litigation initiated by him for a compromise and as such the said proceedings have been filed male fidely and cannot be sustained. In support of this the contention of the learned Advocate for the petitioners relied upon cases reported in 1983 P Cr. L J
43. 47 and 1.9 and 1983 P. Cr. L J 253.
3. The learned Advocate appearing for the respondent No. 2 on the other hand submitted, that the impugned order for attachment of the premises in question is legal and since. There was likelihood of breach of peace, which is evident from telegrams exchanged between the parties, the learned trial Court was fully justified in passing such orders, pending further inquiry under the provisions of section 145, Cr. P. C. The learned Advocate for the respondent further submitted that the proceedings in question have nothing to do with the civil suit in question, which were filed nearly one year ago before the incident, which led to the filing of the present proceedings and the said proceedings were initiated bona fidely as the respondent No. 2 was forcibly ejected and was threatened with dire consequences by the petitioners. In support of this contention the learned Advocate for the respondent No. 2 relied upon case reported in PLD 1982 Kar. 967 and sub--mitted that in the interest of justice the learned trial Court may be permitted to record the evidence and pass necessary orders under the provisions of section 145 (4), Cr. P. C. And the proceedings in question ought not to be quashed. However, the learned Advocate for respondent No. 2 submitted that directions may be given to the learned trial Court to dispose of the complaint in question within reasonable time.
4. I have carefully considered the above, submissions made by the learned Advocates before me and have gone through the impugned order as well as all the documents filed with the above petition and produced in Court today, by the learned Advocates before me. I have also gone through the cases cited by the learned Advocates before me.
5. Both the parties are closely related to each other. It is admitted position, that Civil litigation between the parties in respect of partnership business of Messrs Prestige Tiles is pending. It is admitted position, that in the Civil proceedings in question, possession of the premises is not specifically in question, although receivership application for taking over all the assets and properties of Messrs Prestige Tiles, for purposes of winding up and accounts etc. Is still pending disposal and as such no order of civil Court is in existence about the premises in question. The partnership deed, which is not disputed by the respondent No. 2 and photo copy of which was produced in Court for perusal clearly shows, that tenancy of premises as well as godowns etc. Belonging to Messrs Prestige Tiles shall belong to all partners, on dissolution of the firm, in spite of the fact, that riginal tenancy of the disputed premises was in exclusive name of respondent No. 2, who now claims that the same does not belong to partnership firm. In view of these facts, there exists dispute between Petitioners and respondent No. 2, in respect of the tenancy and possession of the premises in question. However, such dispute by itself would not attract the provisions of section 145, Cr. P. C unless such dispute is likely to lead to breach of peace between the parties.
6. In the present case, respondent No. 2, on the basis of telegram dated produced in Court, which is kept on file, filed the 9th September, original p present proceedings under section 145, Cr. P. C. In which impugned orders dated 19-9-1982, were passed by learned Assistant Commissioner S. D. M.
7. Garden, for sealing of the said premises and premises were consequently sealed.
8. The learned Advocate for the petitioners submitted, that no dispute, could have attracted the sealing of premises, exists between the parties which co and as such sealing of the premises, without passing of orders under section 145 (4), Cr. P. C. After recording of evidence cannot be sustained. In support of this the learned Advocate for petitioner relied upon cases reported to 1983 P. Cr. L J 47, 1972 P Cr. L J 671, PLD 1974 Lab. 289 and PLD 1964 (?) 289.
9. The learned Advocate for respondent No. 2, on the other hand submitted, that telegram dated 9-9- 1982 sent by petitioners clearly shows, that there exists a dispute likely to lead to breach of peace between parties, in respect of the possession of the disputed premises and consequently learned trial Court was fully justified in passing impugned order dated 19-9-1982.
10. In support of this contention the learned Advocate for respondent No. 2 relied upon case reported in PLD 1982 Kar. 967 and some other cases, as well as on the statements of P. Ws. Recorded before the learned trial Court.
11. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the documents filed and produced in Court before me as well as impugned order dated 19-9-1982 and the cases cited by the learned Advocate before me.
12. The question, which party was in actual possession of the disputed premises on the day of sealing and/or two months prior to the filing of proceedings under section 145, Cr. P. C. And was forcibly ejected, cannot be decided without leading of evidence by both the parties, irrespective of the fact, whether tenancy of the disputed premises belongs exclusively to respondent No. 2 or to the partnership firm of Messrs Prestige Tiles, in view of admitted original partnership-deed of the firm of 'Messrs Prestige Tiles. Since till today no orders have been passed by competent civil Court regarding possession of the disputed premises, this question will have to be decided in the proceedings in question and as such the said proceedings cannot be quashed at this stage, when no evidence has been adduced by-- both the parties.
13. In view of my above conclusion, the only question which now requires consideration is whether impugned order dated 19-9-1982 was justified or not. For this purpose, if the learned trial Court came to conclusion, that emergency existed to avoid breach of peace, it could have passed impugned order, pending final order under section 145(4), Cr. P. C. Keeping in view para. 5 of the complaint filed by respondent No. 2 under section 145, Cr. P. C. And the statement of P. W. Noor Muhammad and Syed Mumtaz and res--pondent No. 2 recorded by learned trial Court, before passing of impugned order dated 19-9-1982, I am of the opinion, that passing of the impugned order was not at all justified, as on the basis of respondent No. 2, own statement, he did avoid and would avoid breach of peace, to save family honour.
14. Therefore, I partially allow the above application and set aside impugned order dated 19-9-1982 for sealing of the premises passed by the learned trial Court. However, I direct the learned trial Court to record evidence and hold inquiry as envisaged by the provisions of section 145, Cr. P. C. And pass appropriate orders under section 145(4), Cr. P. C. As he may deem fit in the light of the evidence that may be lead by both the parties, one month from the receipt of the copy of this order.
15. However, I would like to make clear, that this judgment shall in no way debar competent civil Court to pass any order in respect of possession of the disputed premises, in any civil litigation now pending and/or or which may be instituted by either party hereinafter, m respect of the disputed premises and its possession directly and/or indirectly nor it shall prevent it the parties from referring their disputes for settlement to arbitration, in the interest of family prestige and honour. In order to serve ends of justice, I restrain the petitioners from alienating and/or parting with the possession of the disputed premises to any third party pending final disposal of 145, Cr P. C.
16. Proceedings.
17. Petition partially allowed.