ORDER OF REFERENCE The brief facts of this case are as follows:-
1. That Ali Muhammad petitioner along with his wife and children was residing in a chobara which he had rented from, its owner Hakim Muhammad Shafi respondent. It so happened that Ali Muhammad petitioner, along with his family after locking all his household effects in the chobara went to Azad Kashmir for a period of two months or so. Hakim Muhammad Shafi respondent took advantage of this temporary absence of the petitioner and on 22-12-1969 reported at the police station that Ali Muhammad was not paying him rent and had stealthily run away during night time after locking the chobara which was lying vacant. Thereafter on 9-1-1970 the respondent presented an application to Raja Hamesh Gul, Magistrate, Sahiwal to the effect that Ali Muhammad, his tenant, had gone to some unknown place after locking his chobara in which only one or two cots were lying, therefore, its lock be got broken and possession delivered to him. The Magistrate after getting a report from the police on 17-1-1970 ordered the police that the lock of the chobara be broken and its possession. Be handed over to the respondent and if anything was found in the chobara it should be entrusted to the respondent on supardari. The police in compliance with his orders on 28-1-1970 after breaking open the lock of the chobara handed over its possession to the respondent and also entrusted to him on supardari all the household effects which were 90 in number. The petitioner on 19-2-1970 applied to the said Magis--trate that as he was only temporarily absent from Sahiwal, therefore, his household effects and the chobara be got delivered to him. This application was, however, rejected on 23-2-1970 on the ground that the petitioner owed 1i years' rent to the respondent and had also failed to prove that his eviction was against the law. Mst. Shamim Akhtar wife of Ali Muhammad petitioner presented to me an application on 27-2-1970 and I ordered an inquiry by the Assistant Commissioner, Sahiwal who on the same day reported that the order of the Magistrate was proper. I am, however, of the opinion that the order of the Magistrate is against law.
2. The record of this case is, therefore, forwarded for setting aside the order of the Magistrate on the following grounds:-
(a) That the order of the Magistrate regarding the delivering of possession of the chobara to the respondent and his sub--sequent refusal to restore the household effects to the petitioner which were only on supardari with the respondent cannot be justified by law.
(b) That according to the provisions of sections 516-A, 517 and 522 of the Cr. P. C. The Magistrate could only pass the order in dispute if an offence was alleged to have been com--mitted in respect of the property, or, it had been used in the commission of an offence and an investigation was already going on in this respect.
(c) That as no commission of an offence was alleged by the respondent or the police when the order in question was passed, therefore, the action of Magistrate was against law.
ORDER OF THE HIGH COURT This reference was received from the Additional Deputy Com--missioner (General), Sahiwal, with the powers of District Magistrate for quashing the order of Mr. Hamesh Gul, Magistrate First Class, Sahiwal, dated 17th of January 1970, whereby the lock of the chobara occupied by Ali Muhammad petitioner as a tenant was opened and an inventory of about 90 articles of household use was prepared. The petitioner on 19th of February 1970, applied to Mr. Hamesh Gul that he was only temporarily absent from Sahiwal and that he should be put back in possession of the chobara and household effects. This application was rejected on 25th of February 1970, on the ground that the petitioner had yet to pay rent for one and a half years to respondent Hakim Muhammad Shafi who is the owner of the chobara and had also failed to prove that the order passed against him was against law. Thereafter, Mst. Shamim Akhtar wife of Ali Muhammad petitioner presented an application to the Deputy Commissioner who asked the Assistant Commissioner, Sadar Sahiwal to con--duct an enquiry into the matter. The Assistant Commissioner in his report justified the order passed by the Magistrate. The case was then marked to Mr. Ijaz Ahmed, Additional Deputy Com-- missioner (General) with powers of District Magistrate, Sahiwal, who has sent this reference to the High Court for quashing the order of Mr. Hamesh Gul dated the 17th of January 1970.
2. I have seen the record and find that the particular pro--visions of the statute under which Mr. Hamesh Gul appears to have acted are not mentioned in his order. It also does not appear from the application filed by Hakim Muhammad Shafi, respondent, before Mr. Hamesh Gal as to under what particular provision of law this was moved. I summoned the learned Advocate-General to assist me in this case. He has read over to me the application filed by Hakim Muhammad Shafi. It is mentioned therein that Hakim Muhammad Shafi had rented the chobara to Ali Muhammad petitioner but he had left it about three months ago and had yet to pay him rent for fifteen months.
Hakim Muhammad Shafi had earlier on 22nd of December 1969, lodged a similar report in police station `A' Division, Sahiwal' It was further mentioned in this application that only one or two cots belonging to Ali Muhammad were lying in the chobara.
3. The basic question which arises in this case is as to under what law Mr. Hamesh Gul passed the impugned order. He did not quote any law. He did not refer to any statutory provision even when he dismissed the application of Ali Muhammad for vacating the impugned order.
4. Mr. Rashid Aziz, the learned counsel who appears for Hakim Muhammad Shad, respondent, submits that the action was taken under section 25 of the Police Act and, therefore, no interference in revision is called for. He in this connection relied upon Abdul Shakoor v. Mahadev Parshad and another (AIR 1930 Lah. 539). In this case the suit for possession of the house in question was dismissed and the plaintiff subsequently filed an application before a Magistrate that the tenant having disappeared his household effects should be taken into possession. The Magistrate passed an order to that effect. The High Court was moved on the revisional side and a contention was raised that the Magistrate had passed orders under section 25 of the Police Act. The High Court found that the word `property' as defined in section 1 of the Police Act did not cover immovable property and the order was illegal but on consideration of certain authorities it came to the conclusion that the order was passed on the executive side and it had no revisional jurisdiction in the matter.
5. It does not appear from the record that the learned Magistrate who passed this order, or the Assistant Commissioner who justified that order subsequently, were conscious of the fact that the Impugned order could have been passed under section 25 of the Police Act. Even if this was their case, I find that the word of the statute has not been complied with: Under the above section the initiative rests with the police officer who is duty bound to take charge of unclaimed property and furnish an inventory thereof to the Magistrate of the District who is empower--ed to issue direction for the disposal of such property. Mr. Hamesh Gul was not the District Magistrate and it is nobody's case that he had any delegated powers in that behalf. `Property' according to the definition of this word in section 1 of A the Police Act includes any movable property, money or valuable security. The pre-requisite is that it should be unclaimed property. The chobara was occupied by the tenant and the household effects belonged to him. Section 25, therefore, could not be used for delivering possession of a locked chobara, admittedly in occupation of a tenant, to the landlord. The proceedings amounted to a clear subversion of the law on the subject i.e., the West Pakistan Urban Rent Restriction Ordinance, 1959, which deals with the relations between the landlord and the tenant. Under section 13(2)(v), it is permissible for a landlord to file an application for the ejectment of the tenant if he remains absent for four months without any reasonable cause. The order obtained by the respondent Hakim Muhammad Shafi from Mr. Hamesh Gul clearly amounts to the abuse of the process of the Court and has to be set aside. It was so held by a Division Bench of the West Pakistan High Court in Makhdoom Hussain v. Dr. Wahid Ali (PLD 1961 Kar. 432) where the facts were similar. In that case the possession of a shop had been given to the landlord on the assumption that the tenant had not been heard of for three or four months. While repelling the contention that the Magistrate acted under section 25 of the Police Act and the order having been passed on the executive side was not revisable by the High Court, Kayani, J. Observed as follows:-- "In my opinion, since the source of his power is the Code, whatever he does in purported exercise of his power should be deemed to have been done by him as a Court, and should be subject to correction. Suppose he issues a warrant of arrest against a person whose case is not pending before him. Can it be said that since the warrant was not intended to secure presence in a Court of law, but merely to harass, it cannot be taken notice of by the High Court? If instead of a warrant, he sends an order which virtually ejects a tenant from his shop, it seems to me that this will be a case in which the process of the Court has been abused. Under the colour of his office as a Magistrate who presided over a Court, he has issued an order which a Magistrate cannot issue. The High Court should, therefore, be able to act under section 561-A to prevent abuse of the process of the Magistrate's own Court."
6. I respectfully agree with the observations quoted above. The house occupied by a citizen is his citadel. He can be ejected therefrom only in due course of law and not by a Magisterial order which is patently without jurisdiction. Mr. Hamesh Gul shall be asked to submit his explanation to this Court for passing such an order and to show cause why his magisterial powers should not be withdrawn.
7. The result is that I set aside the order of Mr. Hamesh Gul and direct that the possession of the chobara and the house--hold effects shall be restored to Ali Muhammad petitioner in this case. A report regarding the restoration of the possession shall be sent to this Court by the Magistrate concerned within fifteen days. The reference is answered accordingly.