This application under section 561-A, Cr. P. C, has been preferred by the applicants praying quashment of the proceedings of the case No. 170 of 1981, State v. (1) Mst. Radhika and 2 others and
(2) Fatechand and 2 others, under section 145, Cr. P. C., pending in the Court of A. C. & S. D. M., Civil Lines, Karachi. The proceedings have been initiated on a police report of the S. H. O. Artillery Maidan, Police Station, Karachi, regarding a disputed shop situated in the K.. D. A., Building, Bohri Bazar, Karachi.
2. The facts giving rise to the filing of the report under section 145, Cr: P. C. Are as follows : - "The disputed shop is known as British Clothing Co. And is situated in K. D. A. Building, Bohri Bazar, Karachi,. It is a Clothes' shop. Mst. Radhika who claimed to be its owner moved an application before the Police that her sons Raj Chawla and Rajive Chawila carried a business in the disputed shop whereas the applicant Fatechand worked as a Manager but he has declared himself Manager as well as owner of the shop. The police initiated an action under section 107, Cr. P. C., against both the parties on such application. The S. H. O. Again on 24th February, 1981 filed a report before the A. C. & S. D. M., Civil Lines. Karachi requesting action under section 145, Cr. P. C.
Apprehending that the shop in question being disputed there is possibility that the parties may harm each others' life and property."
3. The learned S. D. M. On 7th March, 1981 passed the order whereby he attached the disputed shop and ordered it to be sealed forthwith until the decree or order determining the rights of the parties or claim of their possession was made by a competent Court. He again on 10th March, 1981 issued a warrant of attachment under section 145 (4), Cr. P. C. Authorising the S.H.O., Artillery Maidan Police Station, Karachi, to attach the said shop by taking and keeping possession thereof and to hold the same until the decree or order of the competent Court determining the title and rights of the parties or claim to possession have been obtained. It was in this warrant of attachment that he called upon the parties directing them to attend his court on 22nd March, 1981 to file their written statements in support of their claim.
4. Mr. G. M. Kureshi the learned counsel for the applicants contends that the disputed shop originally belonged to one Anandram who was uncle of the applicant No. 1. He expired in 1962 and his widow Mrs. Pari Bai succeeded him. The applicant No. 1 who used to work with his uncle since 1947 continued to run the business of the said concern even after his death in 1962. Mrs. Pari Bai executed such power of attorney in favour of the applicant in 1964 to look after her business and he continued with it till 1970. It was on 1st August, 1970 when Mrs. Pari Bai entered into a partnership with one Anand Saroop whereby 34 shares were retained by Mrs. Pari Bai whereas 66 % shares were given to Anand Saroop who accepted Mst. Radhika (Respondent No. 2) as partner to the extent of 33 % for taxation purposes but no investment was ever made by her. The abovesaid partnership was, however, dissolved in Decem--ber, 1970 and such agreement was executed though it was not put in effect as no consideration was paid to Mrs. Pari Bai but Anand Saroop obtained photostat copies of the said dissolution deed and submitted the same to the Income-tax Department and also to the Banks. Anand Saroop again entered into a fresh partnership with Respondent No. 2 admitting her to 50 % shares without any consideration having been paid by her.
The applicant No. 1 however right from 1947 to 1970 and there--after continued to manage the above concern almost as a sole owner and he used to pay fixed amounts to the partners as per directions of Anand Saroop. The applicant was appointed Attorney by Anand Saroop also who executed such power of attorney in his favour and no interference whatsoever was ever made by or on behalf of the Respondent No. 2 till 9th January, 1978 when the Respondent No. 2 brought her two sons (Respondents 3 and 4) to the shop in question and an inventory of the goods was made with stocks of about 2.5 lacs in the shop. It was after this day when differences started between the applicant and the Respon--dents 2 to 4 who tried to prevent the applicant No. 1 from entering the disputed shop by illegal ways. He, therefore, filed the Constitution Petition No. D 1050/80, "Fatechand v. District Magistrate and 2 others on 17th June, 1980 whereas the Respondent No. 2 on the same day filed a civil suit for declaration and permanent injunction in the Court of the learned Vth Senior Civil Judge, Karachi. The Respondent No. 2 also moved an application for a temporary injunction on which ad interim injunction was granted which was however vacated on 29th Jung, 1980 and the application was accordingly dismissed. The Respondent No. 2 preferred an appeal against dismissal of the application before the learned Vth Additional District Judge, Karachi and obtained an ex parte injunction. The Const. Petition No. D-1050/1980 filed by the applicant also came up for hearing on 3rd September, 1980 when statement was made by the learned Asstt. Advocate-General that the impugned order of the District Magis--trate (South), Karachi was withdrawn as the Civil Court was seized of the matter and the Const. Petition in view of the statement of the Assistant Advocate-General 'was not pressed and it was dismissed as withdrawn as a result of it. The applicant thereafter moved an application before the Learned Additional District Judge under Order XXX, Rule 7 read with section 151, C. P. C., for appointment of Commissioner for inspection of property in the disputed shop which was allowed on 18th September, 1980 and Nazir of the District Court was appointed as Commissioner who inspected the disputed shop on 30th September, 1980 and prepared the inventory of the goods lying in the shop. The learned Additional District Judge on 27th January, 1980 dismissed the appeal filed against the order of the learned Vth Senior Civil Judge, thereby maintaining the orders of vacating the interim injunction. The applicant, therefore, opened, the shop on 28th January, 1981 and continued to enjoy possession of the shop in question when again the Respondents 3 and 4 visited the shop on 5th. 8th and 9th of February. 1981 and remained there for some time in a peaceful atmosphere and it was after their visit that the disputed shop was sealed by the Police Officers of the Artillery Maidan Police Station, Karachi in pursuance of the impugned orders of the learned S. D. M., Civil Lines, Karachi. It has been further contended that the dispute being purely of civil nature the impugned orders were not at all called for and the same being illegal and without jurisdiction are liable to be set aside. The possession of the disputed shop was being regulated by the orders of the Civil Court, therefore, there was no occasion to pass the impugned orders which amounted to abuse of the process of the Court and the proceedings of the case are liable to be quashed. He places his reliance on PLD 1970 SC 470 and 1979 P Cr. L J 471.
Mr. Z. U. Ahmed, the learned counsel for the Respondent No. 2 has on the other hand contended that the applicant No. 1 has adopted a position of an owner instead of the employee and attorney to look after the business. He admittedly is an employee even according to register of employment and remuneration which has been maintained by the applicant in his own handwriting and such photostat copy of a leaf of the register has been placed on record as annexure `D' to the counter- affidavit of the Respondent No. 2. Since he is only a manager of the disputed shop he cannot be accepted as owner under any circumstances. Moreover, partner--ship between Respondent No. 2 and "Anand Saroop" was also under dispute and so also the power of attorney executed in favour of the applicant on 8th October, 1979. Therefore, all these factors lead to only conclusion that the presence of the applicant No. 1 in the disputed shop is the bone of contention and, therefore, a dispute likely to cause imminent breach of peace exists concerning the shop in question and the report under section 145, Cr. P. C., has been properly filed by the police after due enquiry from the parties. The impugned orders being properly passed there was no merit in this application. He places his reliance on
(i) PLD 1977 SC 384. (ii) PLD 1966 Lah. 435. (iii) 1969 P Cr. L J 233. '(iv) PLD 1959 Lah. 264 and (v) PLD 1971 Lah. 766.
6. Mr. Raja Kureshi, the learned counsel appearing for respondents 3 and 4 adopts the arguments of the learned counsel for the Respondent No. 2.
7. Mr. M. I. Memon, Addl: Advocate-General, appearing for the State contends that the impugned orders of the learned S. D. M. Are not properly passed and are, therefore, liable to be quashed. It has also been contended by him that the proceedings under section 145, Cr. P. C., have been filed on 7th March, 1981 when the civil suit was already pending in the court and no action was called for on the report under section 145, Cr. P. C. He has also pointed out that the order under section 145 (1), Cr.
P. C. Does not show if the parties have been called upon to put in their written statements and the learned S. D. M., was satisfied before passing such orders. Morever, the order under section 145 (4), Cr. P. C. Does not show if it was passed under emergency. Therefore, both the orders passed - by the learned S. D. M., being not proper are liable to be quashed. He has relied upon PLD 1977 SC 384.
8. I have considered the contentions of the learned counsel for the applicants, respondents and the State. I have also gone through the record and citations referred to above by them. There is no dispute that the applicant No. 1 was in possession of the disputed shop and was managing the business since last more than 30 years. The only dispute is about his status and presence in the disputed shop after differences between the parties. The respondent No. 2 has already filed the civil suit much before filing of the report under section 145, Cr. P. C, by the police which is pending disposal before the learned Vth Senior Civil Judge, Karachi, It seems that action under section 107, Cr. P. C. Against both the parties has already been taken by the police in this matter. Moreover, the report under section 145, Cr. P. C. No where showed if the dispute likely to cause breach of peace existed concerning the shop. It simply mentioned that the parties may harm the life and property of each other as the shop in question was disputed. There is no request that the shop in question be sealed under the circumstances of the case. The respondents have objection to presence of the applicant No. 1 on the disputed shop and the capacity which has been claimed by him. I feel that both the points are to be decided by the civil court and the respondent No. 2 has rightly approached it. The police has also rightly taken action under section 107, Cr. P. C. Against both the parties. I, therefore, feel that there was no material for the learned S. D. M., to have been satisfied to pass the impugned orders particularly when there was no mention regarding breach of peace on the dispute over the posses--sion of the shop which is even otherwise admitted by the respondents themselves that the applicant No. I was managing the business and was in possession of the disputed shop. The propriety of action under section 145, Cr. P. C. Being dependant upon the dispute over the possession of the immovable property likely to cause breach of peace and satisfaction of the Magistrate is condition precedent to act under section 145, Cr. P. C., which is not available in this case. If at all any action was required to be taken in this matter, it was only to be taken under section 107, Cr. P. C., which has already been done against both the parties.
There was in fact no case to pass order under section 145 (4), Cr. P. C. The citations relied upon by the learned counsel for the respondent No. 2 will not be of any help to him in view of the fact that both the impugned orders of the learned Magistrate are not properly passed and, therefore, are not justifiable by materials on record.
9. For the foregoing reasons I allow this application and quash the proceedings of the Cr. Case No. 170 of 1981, ' State v. (I) Mst. Radhik and 2 others, and (2) Fatehchand and 2 others, pending in the Court of the learned S. D. M., Civil Lines, Karachi.