The applicants above named have filed the above Petition for quash--ment of proceedings pending against them, under section 145, Cr. P. C. In the Court of Assistant Commissioner/S. D. .M.
Liquatabad, Karachi, on the following facts and grounds :-
2. That the Respondent No. 2 was the owner of plot No. R-808, Sector No. 15-A-1, measuring 120 Sq.Yds. Situated in North Karachi Township having purchased the same from the previous owner Asgbar Hussain Bilgrami, who in turn was purchased from the original allottee, namely, Abdul Majid.
3. That in the month of September, 1978 the Respondent No 2 orally agreed to sell the said plot to applicant No. I for a lump sum consideration of Rs. 65,000 In pursuance of the aforesaid agreement the Applicant No. 2. Who is real mother of Applicant No. 1 paid in cash a sum of Rs. 65,000 to Respondent No. 2 on 29th June, 1979, who acknowledged the same by executing and signing a proper receipt in the name of Respondent No. 2.
4. On 14th October, 1978 the parties reduced the oral agreement of sale in writing duly executed under the signatures of applicant No. 1 and the Respondent No. 2. The Respondent No. 2 simultaneously executed the general power of attorney also in the name of applicant No. 2 in respect of the said plot.
5. In furtherance of the agreement, of sale a joint application was moved to the K. D. A. Under the joint signatures of the applicant No. 1 and respondent No. 2, according to which respondent No. 2 requested the K. D. A. To transfer the plot in the name of applicant No. 1.
6. That on 14th October, 1978 on execution of the agreement to sell, the Respondent No. 2 delivered to the applicants the vacant possession of the plot. It is submitted that ever since 14th October, 1978 applicants have been in continuous possession of the said plot, on which the apple--cants have also raised boundary walls and built two rooms at a consider--able costs.
7. It is submitted, that after receiving consideration and delivering possession of the said plot, the Respondent No. 2 became dishonest with the result, that she not only failed to complete the transfer of the said plot in the name of applicant No. I but even started making fraudulent moves in order to garb the plot as well as money.
8. That on 17th November, 19''8 Respondent No, 2 made a false complaint to the New Karachi Police Station alleging, that she has lost her original documents, while on way to K. D. A. Office. Almost two years after the said application, the Respondent No. 2 made another false complaint dated 24th November, 1980 to the S. H. 0. New Karachi Police Station, in which cite complained about constructions being made by the applicants on the said plot and wanted police interference. On 23rd November, 1.980 the respondent No. 2 made an application to the Deputy Controller Building Zone No. 4, Karachi requesting them to get the unauthorised construction being made by the applicants to be stopped. The applicants also from time to time appraised the concerned authorities about the actual and factual position. Karachi Police also recorded statement of the applicant No. 1 and Respondent No. 2 on or about 25th November, 1980.
9. That in the month of November, 1980 the Respondent No. 2 also tried forcibly to occupy the said plot and actually started digging thereon, but the timely intervention by the applicants foiled her attempt, but the Respondent No. 2. However, threatened that she will take the possession by force, the applicant No. 1, therefore, filed Suit No. 4526/80 in the Court of XVIIIth Civil Judge, IInd Class, Karachi against Respondent No. 2, in which on the application under Order XXXIX, rules 1 and 2, C. P.
C. Of the applicant No. 1 maintenance of status quo was ordered by the learned Civil Judge. During the course, the Respondent No. 2 filed her counter-affidavit to the applicant's affidavit in support of her application under Order XXXIX, rules I and 2, C. P. C. However, before the filing of the written statement, the learned Civil Judge returned the plaint under Order VII, rule 10, C. P. C. Vide order dated 27th January, 1981.
10. That in March, 1981 the applicants filed fresh Suit No. 233/81 in the High Court of Sind, Karachi against Respondent No. 2 and K. D. A. Praying Inter alia for Specific Performance of Agreement of Sale dated 14th October, 1978.
11. In May. 1981 the Respondent No. 2 filed Suit No. 2305/81 in the Court of XIth Senior Civil Judge, Karachi against the applicant for possession of the said property, under section 9 of the Specific Relief Act and for mesne profits. The applicants had filed their written statement and the suit is fixed for further proceedings in the trial Court.
12. It appears, that before filing Suit No. 2305/81 for possession, the Respondent No. 2 had filed an application under section 145, Cr. P. C. In the Court of Assistant Commissioner/S. D. M Nazimabad, Karachi, against the applicants. In the said application the case set up by the Respondent No. 2 in nutshell is, that the Respondent No. 2 is rightful owner of the said plot and the applicants have no right thereto and that the applicants have trespassed into the said plot forcibly and illegally and further that the Respondent No. 2 apprehends imminent breach of peace and further that the plot in the circumstances has become disputed and that the applicants need to be dispossessed. In due course of law. In the application the Respondent No. 2 prayed for attachment of the plot on the ground, that the applicants intend to raise construction thereon and that the same will create complications and litigations. The Respondent No. 2 also prayed that the Court should put her into peaceful possession of the said plot. The preliminary statement of respondent No. 2 was recorded by the learned S. D. M.. Thereafter for quite some time, while the learned S. D. M. Required the applicants to appear in his Court did not register the case. On 27th October, 1981 the Respondent No. 2 moved an apple--cation under section 145 (4), Cr. P. C., for attachment of the said property on the bare allegation, that the applicants are damaging the property and that the matter involves breach of peace and is one of emergency as the applicants are causing threat of hazardous consequence to Respondent No. 2 and that they intend to sell the plot. On the same date i, e. 28th October, 1981 the applicants moved an application that no case under section 145, Cr. P. C. Exists and that several suits are pending in the Civil Courts between the parties and further that the application under section 145, Cr. P. C. Itself has been moved long after two months of the alleged dispossession by applicants, accordingly prayed for dismissal of the application. On 24th November, 1981 the Respondent No. 2 filed bet objections retreating, that it is a case of emergency.
On 2nd December, 1981 the Respondent No. 2 again moved an application for sealing the said property on the ground, that the applicants are still threatening the Respondent No. 2 and are demanding the property and went to re-construct the same. On the same date the learned S. D. M.
Passed the following order :- ---Order under section 145 (4), Cr. P. C. Be issued.
Sd/-S. D. M., Liaquatabad 21st December, 1981.---
13. The fact of the matter, is, that the case was fixed before the learned S. D. M. On 16th December, 1981, when the above-mentioned applications were to be heard as is evident from the diary of the Court, but the case was adjourned to 22nd December, 1981. It accordingly appears, that a day before the date of hearing i.e. To say on 21 December, 1981 the Respondent No. 2 managed to move an application dated 21st December, 1981 and obtained the orders of attachment under section 145 (4), Cr. P. C. On 22nd December, 1981 when the applicants attended the Court, neither the pending applications were heard nor the applicants were apprised about the orders passed under section 145 (4), Cr. P. C. And the case was adjourned to 2nd January, 1982. On 1st January, 1981 being Friday the New Karachi Police came to the disputed plot and attached the same alongwith the household goods, belonging to the applicants.
14. On 22nd December, 1981 when the applicants and their Advocate attended the Court it transpired that an order under section 145 (4), Cr. P. C. Has been passed on the ground, that it was fit case for attach--ment under section 145, Cr. P. C. This order is shown to have been passed on 21st December, 1981.
14. The applicant above named, being aggrieved by order dated 21st December, 1981 passed under section 145 (4), Cr. P. C. For attachment of plot in question, have preferred the above petition, on the grounds men--tioned in the memo. Of Petition.
15. The learned Advocate for the Petitioner in support of the above Petition submitted as under :-
(a) That it is a settle law, that in cases where any party is found in possession of the immovable property two months prior to initia--ting of proceedings under section 145 (1), Cr. P. C. The Magistrate has no jurisdiction to proceed with the such matters. In support of this contention the learned Advocate for the Petitioner relied upon cases reported in 1968 P Cr. L J 335, 1978 P Cr. L J 76, 1976 P Cr. L 143 and PLD 1964 Lah. 9.
The learned Advocate for the Petitioner in order to support his above contention stated, that it is admitted position on record, that the Petitioner No. 1 was in possession of the plot in question on 24th November, 1980 and the complaint under section 145, Cr. P. C. Was filed on 17th February, 1981 and as such the learned Magistrate had no jurisdiction to take cognizance of the proceedings in question.
(b) That complaint under section 145, Cr. P. C. Does not disclose any likely dispute between the parties so as to lead to breach of piece and as such the orders passed under section 145, Cr. P. C.
Dated 21st December, 1981 for attachment of the plot in question was unwarranted and consequently the same is void. In support of this contention the learned Advocate for the Petitioner relied upon case reported in 1973 SCMR 237.
(c) That not a single instance of breach of peace is quoted in the complaint under section 145; Cr.
P. C. Nor any such incident is alleged to have occurred even subsequently and as such thest proceed--ings initiated by Respondent No. 2 amounted to abuse of the process of the learned trial Court. In support of this the learned Advocate for the petitioner relied upon cases reported in 1976 P Cr. L J 464.
16. The learned Advocate for the Respondent No. 2 on the other hand submitted, that the prior possession of 2 months of the Petitioner No. 1. Was of no consequence and did not effect the jurisdiction of the learned Magistrate to take cognizance of the proceedings filed before him under section 145(1), Cr. P.C. In support of this contention the learned Advocate for the respondent relied upon case reported in 1970 P Cr. L J 131 and 268. The learned Advocate for the Respondent further submitted, that the main criteria for initiating of the proceedings under section 145, Cr. P. C. Is possibility of breach of peace, which in the present case is alleged by Respondent No. 2 in her complaint.
17. The learned Advocate appearing for the State submitted, that he supports the above Petition for quashment of the proceedings, as Petitioner No. 1 admittedly was in possession of the plot in question, two months prior to the initiating of the proceedings on 17th February, 1981 and as such the learned Magistrate had no jurisdiction to take cognizance. The learned Advocate for the State further submitted, that no instance for breach of peace have been mentioned in the complaint in question and as such the cognizance taken by the learned Magistrate, on the complaint in question, amounts to abuse of the process of the learned trial Court.
18. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the complaint in question as well as the statements of the witnesses recorded by the learned Magistrate in preliminary inquiry. I have also perused the impugned order dated 21st December, 1981.
19. It is an admitted position, that Applicant No. 1 according to allegations of Respondent No. 2, trespassed into the plot in question and took its possession on 24th November, 1980, more than two months prior to filing of complaint under section 145, Cr. P. C. By Respondent No. 2. In view of this, the only basis for taking cognizance of such matter would be events which are likely to lead to breach of peace on the said accounts, as learned Magistrate cannot in face of such admitted position about the possession of the property, with respondents, pass any orders under first proviso of section 145 (4), Cr. P. C. And consequent orders under sec--tion 145 (6), Cr. P. C. For delivery of possession of such property to any party. Therefore, in present case, the learned Magistrate could have assumed jurisdiction in the matter, if the complaint in question really disclosed events, which were likely to lead to breach of peace between the parties. Keeping in view this legal position, I have carefully gone through the complaint and statements of witnesses recorded in P. E., by the learned Magistrate and have also gone through the order dated 21st December, 1981 passed for attachment of the said property, under sec--tion 145 (4),.Cr. P. C.
20. The complaint dated 17th February, 1981, mainly deals with the alleged rights of Respondent No. 2, to the plot in question and actions on the part of applicants to grab the plot in question. Not a single instance of breach of peace is mentioned in the said complaint, except apprehension on the part of respondent, that such breach of peace is likely to result, ,q without disclosing any concrete events, from which any likelihood of breach of peace could be deduced. In view of this, in my opinion, learned Magistrate had no jurisdiction to commence proceedings under section 145, Cr. P.
C. In circumstances of the present case. In this view of mine. I am fully supported by a decision of this Court, reported in 1976 P Cr. L J with which I am in full agreement, for the reasons given, by the then Chief Justice of this Court. The learned Magistrate has given no reasons for existence of emergency, so as to warrant passing of orders of - attach--ment under section 145 (4), Cr. P. C. In his impugned order dated 21st December, 1981 and as such the said order cannot be sustained, on this ground alone. In this view of mine, I am fully supported by the decision of Hon'ble Supreme Court reported in 1973 SCMR 236 as well as case reported in 1976 P Cr. L J 48 and case reported in PLD 1974 Lah. 289. The authorities cited by the learned Advocate for Respondent No. 2 namely 1970 P Cr. L J 131 and 268 are based on completely different facts and as such not applicable to the present case.
21. Therefore, in my opinion, the cognizance taken by the learned Magistrate on complaint of Respondent No. 2, under section 145, Cr. P. C. And passing of orders under section 145 (4), Cr. P. C., on 21st December, 1981 amounted to abuse of the process of the learned trial Court and as such the same are liable to be set aside by this Court, in view of my above conclusions and findings, specially as civil litigations in respect of property in question is still pending between the parties.
22. Therefore, I allow the above petition and quash the proceedings in question pending against the applicants, under section 145, Cr. P. C. In the Court of learned Assistant Commissioner/S. D. M.
Liaquatabad, Karachi, as well as, set aside impugned order dated 21st December, 1981 passed by the said learned Court, under section 145 (4), Cr. P. C. In respect of plot No. R-808, Sector No. 15-A-1, measuring 120 sq. Yds. Situated in North Karachi Township, Karachi.