1. ' This is an application for quashment of Section 145, Cr.P.C. proceedings pending in the Court of A.C. and S.D.M. (Liaquatabad) Karachi filed by respondent Pervez lqbal on 18-10-1979.
2. ' The complainant had alleged that he was the owner of flat sites No,St-4/C and St-4/D known as Gulberg Square and Gulberg Annexe in Federal-B-Area Karachi and that on night between 13th and 14th September, 1979 the applicants/respondents collected about 50-60 persons under cover of darkness who were armed with deadly weapons and they created law and order situation and seized projects of complainant and properties including his office at the site and his flat and contents thereof and assaulted and drove his employees on the site and committed offences under Section 379, 409, 420, 446 and 506 P.P.C. and created a dispute and caused breach of peace and the situation continued to be the same till the date of filing of the complaint and was certainty of a breach of peace. In that complaint he had explained the delay in filing the complaint on account of fact that he had applied to Chief Martial Law Administrator on 4-10-1979 and that in pursuance of the same the F.I.R. was registered on 15-10-1979 and he was filing the complaint in view of gravity of situation. In the prayer clause the complainant had prayed for attaching the premises forthwith. The complaint is dated 18-10-1979 but the preliminary order under Section 145, Cr.P.C. was passed on 28-10-1979 and the same is reproduced below:- "Perused the statements on record I am satisfied that there is some dispute between the parties.
3. Register the case under Section 145 Cr.P.C. and issue notices."
4. ' Consequently, the applicants Nos. 1, 2 and 3 namely, Abdul Qayyum, Safeullah Khan and Nooruddin filed their written statements before the S.D.M. in December, 1979 and they alleged that M/s. Zafar Brothers Ltd. were the owners of Plot No,St-4/C and had paid entire occupancy value to K.D.A. and they had entered into an agreement with M/s. Gulberg Construction Company on 11th August, 1975 and handed over Plot No,St-4/C to them for construction purposes. The applicant No,1 was the Managing Partner of the Gulberg Construction Company. The applicant further stated in the statement that the complainant who was the Managing Partner of M/s. lqbal Engineers had entered into an agreement with M/s. Sun Green Company for raising construction of shops and flats over Plot No, St-4/D which was adjacent to the Plot No, St-9/C and the complainant had entered into an agreement on 22nd September, 1979 with M/s.Gulberg Construction Company for construction of Plot No, St-4/D and in pursuance of the said agreement the said Plot No, St-4/D Was handed over to M/s.Gulberg Construction Company. The copies of the two agreements have been filed.
5. ' Mr. Nooruddin K. Jatoi learned counsel for the respondent has, however, challenged the genuineness of the agreement, dated 22nd of September, 1976.
6. ' The present applicants further submitted in their statements that M/s. Gulberg Construction Company paid Rs,50,000 to Sun Green Company on behalf of the complainant by cheque and invested huge amount on the construction of Plot No, St-4/D. They also alleged that they advertised for scheme of construction over Plot No, St-4/D. Another submission made by the applicants in their written statements before the S.D.M. was that Shaikh Abdul Qayyum had to go to Sakrand to look after some work there and in his absence the complainant used to look after office work of M/s. Gulberg Construction Company, and was, therefore, granted General Power of Attorney to look after the affairs of St-4/C on 21st March, 1979 but on account of the fact that the complainant had not rendered accounts and has failed to discharge his functions properly and efficiently and he had removed the documents from the premises, therefore, on 21-9-1979 the applicant No,1 cancelled the Power of Attorney granted to respondent No,1 and the same was also published in two newspapers of Karachi on 14-9-1979, namely, "Jang" and "Dawn". And that notice of the same was also issued to the complainant by registered A.D. Post but the complainant refused to receive the said notice and lodged a false complaint on 15-10-1979 at Joharabad Police Station to the effect that 50-60 persons had occupied the premises and assaulted the employees.
7. The allegations, in the complaint were denied and report was called a false report and it was further asserted that the applicants/opponents were in lawful possession of the property.
8. ' The proceedings continued pending in the Court of S.D.M. till 4-2-1980 for the purpose of service of process upon respondents Nos.6 and 7 in that complaint but on 4-2-1980 the advocate' of complainant Pervaiz lqbal dropped those respondents Farooq Minhas and Tariq All and on that day an order was passed to the effect by the S.D.M. and thereafter, arguments were heard on the same day in respect of the attachment application and it was reserved for order on 12-2-1980 but meanwhile, the applicants filed the present application.
9. ' Mr. N.K. Jatoi learned counsel for the respondents has submitted that the application for quashment was mala fide as the applicants were issued notice on 18-10-1979 but they waited from 18-10-1979 till 21-2-1980 and then filed this application when it was apparent to them that the property might be attached.
10. ' I have seen that the written statements of the applicants was filed by them somewhere in December, 1979, and thereafter, the proceedings continued pending for service upon respondents Nos. 5 and 6 till 4-2-1980 and therefore this application filed on 11-2-1980 cannot be termed as unduly delayed as there was no immediate threat of any action till 4-2-1980.
11. ' Mr. Mubarak for the applicants has contended that the S.D.M. concerned did not record any satisfaction on 28-7-1979 that a dispute likely to cause breach of peace existed. He argued that mere recording of satisfaction that a dispute existed is not proper compliance with the provisions of Section 145 of Cr.P.C. which requires recording of satis faction of a dispute likely to cause preach of peace and not of a mere dispute.
12. The argument is that a dispute of a civil nature does not invest the Magistrate with the powers to proceed under Section 145 Cr.P.C. and it is only the likelihood or existence of a situation which can cause a law and order situation or breach of peace which alone can entitle the S.M.D. to proceed with the matter.
13. ' The submission is quite justified and I find that the S.D.M. has failed to record his satisfaction in respect of breach of peace.
14. ' Reliance has been placed by Mr. Mubarak on PLD. 1967 Dacca 441, PLD 1965 Karachi 305, PLD 1969 Karachi 515 and PLD 1963 Baghdadul Jadid 26, where it has been observed that the preliminary order of the Magistrate must show that he had applied his mind in respect of the question of breach of peace. Mr. Mubarak also relied upon P 'L D 1969 Karachi 515, where 8 days delay caused by the Magistrate in .passing a preliminary order under Section 145 Cr.P.C. was recorded by Mr. Justice Ghulam Safdar Shah, as he then was,as a circumstance, which indicated the negation of breach of peace. In the present case before me the Magistrate took 10 days before making a preliminary order.
15. ' In the present case before me, I find that the applicant has made a mis-statement by calling himself as the owner of the two sites whereas in fact he was a Power of Attorney Holder in respect of St-4/C and St-4/D and further that the complainant has failed to give any particulars as to who had entered on the property on the night between 13th and 14th September, 1979 and as to what sort of assault was made by those persons and to who had resistecr the trespass alleged to have been committed by those persons. A bare statement that illegal occupation has caused breach of peace is riot enough to make it a case of breach of peace unless something is shown in respect of the action of resistance or forebearance on the part of the complainant. The complainant did not even reply to the notice as published in "Dawn" on 14-9-1979 and in spite of the allegations of serious offences under Section 379, 409, 420, 446 P.P.C. even a simple F.I.R. in respect of the same was not lodged immediately and the complainant waited till 4-10-1979, when he moved C.M.L.A. and then again he waited till 18-10-1979 in filing the persent complaint. It would, therefore, appear that there would be hardly any dispute which was likely to cause a breach of peace in future. The proceedings under Section 145 Cr.P.C. were too delayed to infer any real apprehension of breach of peace. It is correct that there is dispute between the parties and it may be that the complainant can show that he has invested huge amounts as he alleges, but the same has to be established in a Court of law and the appropriate forum for the same appears to be a Civil Court. It has been alleged by the applicants that they have filed two suits in the High Court, but they are under process.
16. ' Mr. Niaz Ahmed Khan for the State had submitted that the proceedings under Section 145 Cr.P.C. were not warranted in view of the complex nature of relationship between the parties and in view of the suit having been filed and he had, therefore, urged that the circumstances of this case are such that the dispute should be decided in a Civil Court. He has, further, urged that proceedings under Section 145 Cr.P.C. were a mere abuse of the process of the Court.
17. ' Mr. Nooruddin K. Jatoi had replied that his client had two months in which he could file an application under Section 145 Cr.P.C. and therefore, a delay of about one month and 5 days in filing two present complaints should have bearing upon the bona fides of the complainant.
18. ' I do not agree with this submission. Proceedings must be filed without unreasonable delay and in any case filing of the same after one month and 5 days suggested that there was hardly any likelihood of breach of peace, and therefore, the complainant had waited for such a long time to make his complaint.
19. In any case, I am of the view that the recording of the satisfaction by S.D.M. that the dispute was likely to cause a breach of peace was must before he could order the issue of process in the ccise and that satisfaction has not been recorded in this case, and therefore, the proceedings deserved to be quashed. I do not see any justification even otherwise from the circumstances of this case to suggest that there was a likelihood of breach of peace on account of the present dispute between the parties. I am further convinced that the circum stances of this case hardly justified any action under Section 145 Cr.P.C. particularly, when the complainant or his men had put no resistance of any sort and had unduly waited from 14-9-1979 till 4-10-1979 before resorting to any proceedings and had in fact resorted to the appropriate proceedings under Section 145 Cr.P.C. only on 18-10- 1979, which merely showed that there was a dispute, but hardly any likelihood of breach of peace.
20. And lastly', the argument of Mr. Niaz Ahmed Khan that there was complex rtelationship between the parties in respect of these flat sites and, therefore, the matter of possession and ,respective rights of the parties could better be sorted out in the Civil Court alone is quite substantial.
21. ' I would therefore quash the proceedings pending in the Court of S.D.M. Liaquatabad, Karachi against the present applicants under Section 145 Cr.P.C. being Criminal Case No,573 of 1979.