1. On 31-10-1985, I had only issued pre-admission notice, but had not directed the appearance of these respondents in person. The Superintendent of the Criminal Branch has, however, issued a notice, stating that they are required to be present in person. This was most wrong, and an entry shall be made in his A.C.R. To such effect. I recall that this is a second occasion when this Superintendent has behaved in the same manner. I have heard the petitioner, and I have also heard the Additional Advocate-General. The petitioner had made this application under section 561-A, Cr.P.C. Invoking "special power" of this Court. I do not know what are those special powers, which the petitioner conceives that this Court has, but what I could understand is that perhaps he wants this Court to exercise its inherent jurisdiction under section 561-A, Cr.P.C. In order to prevent miscarriage of justice. The brief facts are that there is a building on Surveys Nos. 12, 13 and 14, Sheet T.L.I, Nishtar Road, Karachi. It was brought to the notice of Divisional Commissioner that this building was in a bad shape, and the Karachi Development Authority had served a notice for its demolition, as it had been declared a dangerous building It seems one Iqbal Lakhani who claims to be an attorney of the owners, appeared before the Commiasioner and stated that he could not comply with the order of demolition of the building, as he could not gei the same vacated. It seems that the said Iqbal Lakhani had set up a case that the property was of of Hindu owners, and it had never been declared evacuee by the mpetent authority, so that the owners got it treated as non-evacuee, and the property continues to be non-evacuee. Iqbal Lakhani also set zp a case that the property was not in a dilapidated condition. However, a stand was taken before the Commissioner that whosoever was the owner may be bound down to rehabilitate the tenants in the same premises after reconstruction. On 13-10-1985, in reply to a letter from the petitioner the Karachi Building Control Authority made a statement to the effect that the demolition work was started on 29-9-1985, but a law 'and order situation arose, so that demolition was stopped on the advice of Sub-Divisional Magistrate.
2. At this stage, it is necessary to revert to the order of the Divisional Commissioner, and, in the said order, it is stated as follows:- "The contention of the tenants seems to be reasonable and as such I hereby order that Deputy Commissioner South should prepare a list of such tenants who would vacate the tenements on demolition of the building, quantity the area under their occupation and verify their tenancy arrangements. After due verification such list should be provided to Commissioner Karachi and Director-General, K.D.A. Iqbal Lakhani should give an undertaking to Commissioner Karachi and Director-General K .D A. That in case the competent authority decides that he is the legal attorney of the rightful owners and the building is demolished he would provide equivalent area to these tenants in the same building on reasonable rent after reconstruction. The K.D .A. On receipt of list from the Deputy Commissioner, South and after completion of legal formalities if any, may demolish the building if it is declared dangerous."
3. From the above facts, it would appear that the real dispute is two-fold. The petitioner's contention is that the property is evacuee property, and to the extent, the order of the Commissioner states that it was never declared as evacuee. Be that as it may, sitting on the criminal side, I cannot express any opinion one way or the other in regard to the status of this property. The petitioner, Abdul Qudus Behari. States that there is record in the Settlement Offices, showing that this property was evacuee. Ii that be so, a copy could easily be obtained by the petitioner, and be utilised in any proceedings in which such document could be used. The other point in this case is in regard to the property being dilapidated and dangerous. No doubt, the property was dangerous, and to that extent, the Karachi Building Control Authority has issued a certificate. Even otherwise, it is a known fact that most of the evacuee properties on account of neglect are crumbling, or, are on the verge of crumbling. The question, however, arises,- whether the Commissioner could ever pass an order to that effect. If the property was in possession of tenants, whosoever was the landlord had to be given notice, and if the landlord stated that he was unable to get the tenants evicted, the Building Control Authority should have been allowed to perform its statutory functions by ordering eviction.
4. In this case, eviction has been ordered by the learned Commissioner, and it seems he had no power to order such demolition. No doubt, the order of the Commissioner is very humane and just, because he had stated that, after reconstruction, an equal area has to be given to such persons, who were evicted, but still the question of authority to order eviction is alive. Having stated the facts, I have applied my mind to the nature of relief that is sought from me and can be granted by me. The petitioner has requested this Court that legal action may be taken against the Director of Anti-Corruption and others, namely, respondents 4 to 9. I do not understand how I could take any action against the Director of Anti-Corruption without his being a respondent before me. As far as the respondents 4 to 9 are concerned, I find that they are acting under orders of the Commissioner.
5. Not merely that but as soon as there was a likelihood of any breach of peace, they had desisted from carrying out demolition. In these circumstances, no action can be taken against any of these respondents, particularly when no action is sought against the Building Control Authority, or, the Commissioner of Karachi.
6. I believe this, application is misconceived, and is not maintainable under section 561-A, Cr.P.C. Or any other provision of the Code of Criminal Procedure. The proper remedy for the petitioner was to have invoked the Constitutional jurisdiction of this Court in order to obtain relief against the order of the learned Divisional Commissioner.
7. In view of what is stated above, this application is dismissed in