The applicants above named, have filed the above petition under sec--tion 561-A, Cr. P. C. By which they have challenged the order dated 19-9-1982, passed by the learned VIII thAdditional Sessions Judge, Karachi, in Criminal Revision No. 162/198, by which the learned. VIIIth Additional Sessions Judge, Karachi, remanded back the case under section 145, Cr. P. C. Between the parties to the learned S. D. M., Garden (South), Karachi, to dispose of the said case, after recording of evidence of both the parties on merits and pending such disposal further ordered, that the office premises shall remain sealed as per order dated 21st August, 1982 till disposal of the said applica--tion under section 145, Cr. P. C. For which he also fixed a time limit.
2. The facts of the proceedings under section 145, Cr. P. C. Are fully mentioned in order dated 19-9- 1982 of the learned VIIIth Additional Sessions Judge, Karachi. The learned Advocate for the applicants in support of the above petition submitted as under: -
(a) That in view of suit No. 1830/1982 pending between the parties in which orders governing the possession of the office premises have been passed, the proceedings under section 145, Cr. P. C.
Are not at all main--tainable;
(b) That the learned VIIIth Additional Sessions Judge, Karachi, could have only remanded the proceedings back to the learned trial Court, but had no powers to pass any orders in respect of sealing of the premises in question and consequently the impugned order at least as far as sealing of the premises is concerned is contrary to law and therefore liable to be set aside by this Court. In support of this contention the learned Advocate for the applicants relied upon the cases reported in PLD 1969 Kar. 22 and 515, PLD 1971 Quetta 84, PLD 1973 Quetta 10, PLD 1982 Azad J & K 71.
3. The learned Advocate appearing for the respondent No. 2 on the other hand submitted, that Suit No. 1830/1982 does not relate to the pro--ceedings which are pending under section 145, Cf. P. C.
Before the learned S. D. M. Garden (South), Karachi, which is evident from the prayers clause of the said suit, to which he drew the attention.
4. The learned Advocate for the respondent No. 2 further submitted, that interim orders passed in Suit No. 1830/1982 relate to the office-bearers of the Association only and do not in any way relate to the possession of the office premises. The learned Advocate further submitted, apprehension of breach of peace can account of the dispute regarding the office premises still exists between the parties and as such the proceedings in question are maintainable. The learned Advocate for the respondent No. 2 further submitted, that provision of section 436, Cr. P. C. Are not applicable to the proceedings under section 145, Cr. P. C. And as such the impugned order shall be deemed to have been passed by the learned VIIlth Additional Sessions Judge, Karachi, in exercising of his powers under section 439-A, Cr. P. C. And as, such the said order is legal and valid. In support of this contention the learned Advocate for the respondent No. 2 relied upon the wording of section 436, Cr. P. C.
5. The learned Advocate appearing for the State submitted that the order of the learned' VIIIth Additional Sessions Judge, Karachi, is perfectly legal and valid, and as such he fully supports the said order.
6. I have carefully considered the above submissions made by the learned -Advocates before me and I have gone through the various authorities cited by the learned Advocates as well as through the impugned order and the copy of the plaint of Suit No. 1830/1982 as well as application for injunction filed in the said suit and order passed thereon.
7. The plaint of the said suit No. 1830/1982 which is available on the file of earlier Criminal Miscellaneous Application No. 654/1982 clearly shows that the said suit mainly relates to elections of the Association for the year 1982-83 and consequence reliefs in support thereof have been claimed in the said suit: The application under Order XXXIX, rules 1 & 2, C. P. C. Filed in the said suit which is Annexure `F' also clearly shows, that it does not relate to the actual possession of the office premises at all and as such the order passed thereon, do not govern of regulate the possession of the office premises between the parties. In view of this the proceedings under section 145; Cr. P. C.
Will be maintainable as prima facie there is apprehension of breach of peace, over it.
8. Keeping the above position in view and on account of the nature of allegations male by the parties against each other and the various criminal proceedings pending between them prima facie it seems that there exists dispute between the parties in respect of possession of the office premises in question, which ,is likely to lead to breach of peace and therefore, I se no force in the contention of the learned Advocate for the applicants that the said proceedings are illegal prima facie. The applicants will be at liberty, to bring to the notice of the trial Court all the legal objections they, may have regarding the maintainability of the said proceedings which may be based as actual facts or otherwise to the said Court.
9. The second contention of the learned Advocate for the applicants, that only remand order could have been passed by the learned V11Ith Addi--tional Sessions Judge, Karachi, under section 436, Cr. P. C. And he had no powers' to direct sealing of the premises, requires consideration as it is submitted by the learned Advocate for the respondent No. 2, that the revision petition filed by the applicants, though purporting to be under section 436, Cr. P. C. Was in fact a revision petition under section 439 AA Cr. P. C. And consequently the impugned order is legal. The provisions Of] section 436, Cr. P. C. Are attracted, when there is complaint or F.
1. R. As a B result of which the proceedings have been initiated. In the case under section 145, Cr.' P. C. There is neither complaint nor F. I. R. But a police report, that there exists a dispute between the parties, which is likely to lead to breach o: peace and as such the revision filed by the applicants though under section 436, Cr. P. C. Was in fact a revision under section 439-A, Cr. P. C. 'slid consequently the impugned order is legal both in respect of remand as well sealing of the premises. The only technical defect in impugned order is, that the learner VIItth Additional Sessions' Judge; Karachi,'' ought to have ordered the learned Magistrate to hold inquiry in respect of police report under section 145, Cr. P. C. In accordance 'with law and thereafter to pass the appropriate order as it may deem fit; both in respect of the said proceedings and the possession of the office premises in question.
10. Therefore, while dismissing the above petition on merit, I modify the order of the learned VIIIth Additional Sessions Judge, Karachi, to the extent, that proceedings arising out of the police report under section 145, Cr. P. C. Are remanded back to the learned S. D. Mi. Garden (South), Karachi, to dispose of the same after recording the evidence of both the parties in accordance with law and pass an appropriate order regarding the sic premises, within one month, from receipt of copy of this order: The above petition is disposed off, in the terms of the above order.