This is an application under section 561-A. Cr. P. C. Praying for quashment of the order dated 26th February, 1979 passed by the learned A.C. And S.D.M. Nazimabad, whereby proceedings under section 145, Cr. P. C. Have been initiated in respect of house No. 125 of Aziz Street near Zamindar Hotel, Gulbahar, Karachi, belonging to the respondent No. 1 in which the applicant lives as a tenant.
2. The circumstances in which the report under section 145, Cr. P. C. Has been filed by the S.H.O., Police Station Gulbahar, Karachi are as follows :- The applicant Aijaz Hussain was residing alongwith his family in the house No. 125 as a tenant who was turned lout of the house by Qaisar respondent No. 1 with help of his companions by trespassing into the house. The respondent No. 2 being owner of the said house having occupied it illegally has locked it and a criminal Case No. 46/1979 under sections 147, 448 and 323, P. P.C. Was registered against him and others in this connection and the accused was arrested while the entire household articles of the applicant were lying outside the house which was locked. The supporters of the accused persons are trying to occupy the -house and in this connection there is tension, therefore, the police guard was deputed. The parties were making great efforts to restore the possession of the said house. It is apprehended that the accused persons shall try to occupy the above house. It is, therefore, requested by way of this report that orders to seal the house No. 125.
Which is a disputed one be passed so that the investigation of the case could be com--pleted and submitted to the Court."
3. The learned S.D.M. Registered the case and issued notice to both the parties on 26th February, 1979 and the respondent No. 1 filed his written statement on 11th March, 1979 before the A.C. And S.D.M. Of Nazimabad in respect of his notice.
4. The applicant Ijaz Hussain filed Civil Suit No. 632/1979, in the Court of XXII Civil Judge, 11 Class, Karachi, with an application under Order XXXIX, Rules 1 and 2 read with section 151, C. P. C. On the same day and the learned Civil Judge, was pleased to grant ad interim injunction on the same day which was later confirmed by him on 29th July, 1979, whereby it was ordered that the applicant plaintiff should not be ejected unless in due process of law.
5. The learned counsel for the applicant contends that no emergency continued so as to justify the proceedings under section 145 Cr. P. C. Moreover the respondent No. 1 inpara. 9 of the written statement filed by him before the A.C. And S.D.M. Has stated," that there was no apprehension of breach of peace as far as he was concerned, being a respectable and law abiding citizen of the country". The learned counsel for the applicant, therefore, contended that in view of the Civil suit and the order of the learned Civil Judge confirming ad interim injunction already granted in favour of the applicant and also ordering that he should not be ejected unless in due process of law, the proceedings under section 145, Cr. P. C. Were not justified and be set aside. He has relied upon (i) PLD 1974 Kar. 124 and (ii) PLD 1972 Lab. 478, wherein the proceed--ings under section 145, Cr. P. C.
Have been quashed more or less under similar circumstances in view of the Civil suits filed in respect of the same premises in the Civil Courts.
6. Mr. Manzoor Hussain, the learned counsel for the respondent No. 1 has contended that it is for the police to determine if a dispute in respect of any land is likely to cause breach of peace and the proceedings under section 145, Cr. P. C. Were initiated in respect of the disputed premises by police in this case before the Civil suit was filed in the Court. He also contended that possession has not yet been decided and interim order or its confirmation by the Civil Court would not affect the proceed--ings under section 145, Cr. P. C. Which are stayed till Civil suit is decided. I am afraid, I cannot agree with this contention as it has been held in a number of cases that after Civil Court has given a decision about the right of a party to remain in possession of a property, the proceedings under section 145 of the Code will be without jurisdiction.
7. Mr. Ghulamally Agha, the learned counsel for the State contends that the proceedings under section 145, Cr. P. C. Were simply a stopgap arrangement and since the dispute in respect of possession between the same parties is being agitated in the Civil Court which has passed interim order, there is no necessity to continue these proceedings under section 145, Cr. P. C.
8. I have considered the contentions of the learned counsel for the applicant and respondents.
There is no denial of the fact that the order of the Magistrate in the proceedings under section 145, Cr. P. C. Is ordinary not based on any exhaustive inquiry but is mostly either on the report of the police or upon the allegations contained in the application for initiation of proceedings and is an ex parte order. There is also no dispute that the subject-matter, both in the Civil suit and the proceedings under section 145, Cr. P. C. Is the same and between the same parties in this matter.
The applicant who is a tenant of the disputed premises wants quashment of the proceedings whereas the respondent No. 1 who is landlord of the same premises also does not want the proceedings to continue as there is no apprehension of breach of peace so far he was concerned as stated by him in para. 9 of his written statement filed before the learned S.D.M. In reply to a notice issued to him by the learned S.D.M. Nazimabad. Moreover proceedings under section 145, Cr.
P. C. Are no doubt in nature of stopgap arrangements and must in disputes a to immovable property yield to order of the Civil Court, which alone are competent to determine questions of title and right of possession to immovable property. 1t does not make any difference if the Civil Suit was filed before or after the proceedings under section 145, Cr. P. C. Were initiated. As soon as the Civil Court has passed the order in respect of the said property, any orders passed by the Magistrate regarding it have to be subservient thereto.
9. It is clear from the above observations that the proceedings under section 145. Cr. P. C. Are not justified under the circumstances of this case and they are even otherwise bound to fail in view of the Civil suit pending in the Civil Court. I, therefore, set aside the impugned order and quash the proceedings under section 145, Cr. P. C. In respect of the dis--puted premises initiated before the learned A.C. And S. D. M., Nazimabad, Karachi.