' By this application filed under section 561-A, Cr.P.C. The applicants have challenged the proceedings under section 145, Cr.P.C. Pending in the Court of Assistant Commissioner and S.D.M.
Civil Lines, Karachi and prayed that the above proceedings be quashed.
2. The facts relevant to this petition are that on 27-10-1982, one Muhammad Ayub filed an application under section 145, Cr.P.C. Against applicant No,2, in which he stated that on the night between 21st and 22nd October, 1982, the applicant Muhammad Ashfaque with the help of an accomplice had broken locks of the shop "Fine Hair Dresser" which was in physical possession of the respondent Ayub. In the same application it is mentioned that there exists dispute between the parties for the same premises and some rent cases and criminal cases were filed. The S.D.M.
Ordered preliminary enquiry and issued notice under section 145 subsection (1) Cr.P.C. To Muhammad Ashfaque the present applicant. The contents of the notice are produced as under:- "NOTICE UNDER SECTION 145(1),Cr.P.C.
' Whereas it has been made to appear to me on the complaint of Muhammad Ayub that dispute likely to cause a breach of peace between the parties named above concerning the shop under the name and style of "Fine Hair Dresser" adjacent to Al-Murtiza Hotel Opp: Empress Market, Saddar, Karachi in which the 2nd party is running a shop of Hair Cutting as a sub-lessee and 2nd party had given vacant possession of the said shop on receiving a sum of Rs,50,000 but later on 2nd party re- occupied the said shop forcibly. The said shop is situated within the local limits of this Court's jurisdiction.
' You the above named parties are directed to appear in Court on 25-10-1982 at 9.00 a.m. With your respective claims about the disputed shop "Fine Hair Dresser" and submit written statements in respect of their claims.
' Given under my hand and the seal of the Court this 23rd day of October, 1982."
' Thereafter under his order the applicant Muhammad Ashfaque was dispossessed and the premises were sealed. The applicant Muhammad Ashfaque filed revision application in the Court of Sessions Judge which was dismissed by order, dated 24-4-1983. Now applicant has come for quashment in this Court on the ground that S.D.M. Has illegally passed an order whereby the shop was sealed and he was dispossessed.
3. I have heard Mr. Raja Qureshi, Advocate for the applicants and Mr. Muhammad Hayat Junejo, Advocate for respondent No,2, and Mr. M.I. Memon, Additional Advocate-General appearing for the State (Respondent No,1).
' Mr. Muhammad Hayat Junejo raised preliminary objection that applicant cannot file this application in the circumstances when his revision application has been dismissed by the Sessions Judge. He relied on the case of Rajoo v. Muhammad Qasim and others reported in 1978 P Cr. L J 706, where it has been held that revision petition already decided by Court of Sessions, the second revision application with respect to same matter cannot be entertained by High Court in the circumstances.
3 On the other hand Mr. Raja Qureshi, Advocate for the applicants has cited the case of Dinal and 7 others v. Mian Najamuddin reported in 1984 P Cr. L J 193, where it has been decided that extraordinary jurisdiction of a High Court conferred by section 561-A cannot be refused merely because aggrieved has already exhausted alternate remedy by filling revision_petition before sessions Judge under section 439-A, Cr.P.C. He has also referred to cases reported in 1984 P Cr. L J 504, and 1983 P Cr, L L 2349.
4. Mr. Muhammad Hayat Junejo conceded that the present application is competent therefore his preliminary objection is over ruled and I hold that this application is competent.
6. It is an admitted position that applicant No,1 is a tenant of respondent No,2, in respect of shop bearing No,G/3, in the building known as "Murtaza Chambers." The fact is that there were some rent cases between the parties. This fact has also been mentioned in application filed under section 145.
The Magistrate has treated these proceedings as a criminal case and ordered preliminary enquiry.
It is contrary to the spirit of S. 145, proceeding. According to section 145, Cr.P.C. He could pass an order when there exists a dispute which would be likely to cause breach of peace. He has to state the grounds and should require the parties in dispute to attend the Court and put in their written statements. In these proceedings it has clearly been mentioned that criminal case is pending between them, and on 14-10-1982 at 3.00 p.m. Muhammad Ashfaque the present applicant attacked the elder brother of respondent for which case under section 307, P.P.C. Was registered. In these circumstances the respondent could have easily filed application under section 107, Cr.P.C.
Proceedings but it appears that no such proceedings have been initiated at the behest of respondent No,2. They have chosen to file this application after about 9 days in the Court of S.D.M.
Which clearly indicates that they wanted to take possession of the shop by way of 145, Cr.P.C.
Proceedings which according to me is illegal. There was no bar for the respondent No,2, for making such an application to the police for initiating these proceedings when he lodged complaint under section 307, Cr.P.C. Which he had not chosen to do so, for the reasons best known to them. The proper course for the parties was to get an ejectment order by way of filing rent application or could have filed criminal case under section 448, P.P.C. The relief which they have sought by these proceedings is against the law as provided in section 145, Cr.P.C. There is also no provision for holding any preliminary enquiry which Magistrate has done and recorded the statements of the witnesses under section 202, Cr.P.C. The process is not required to be issued in these proceedings. It appears that there is some dispute between the parties and they can seek civil remedy or other legal remedy and should not be allowed to take the benefits of proceedings under section 145, Cr.P.C. The procedure as contemplated under section 145, Cr.P.C. Has not been complied with. The result is that proceedings are quashed. Consequently, I order that shop in question be unsealed.
The possession be handed over to a person from whom it was taken.