1. This Revision Application which has been filed by applicants Fazal Karim, Ahmed Din and Mahboob is directed against the order of the Additional City Magistrate No. 1 Karachi West, dated 10-7-1985. By he impugned order the learned Magistrate dropped the proceedings tinder section 145, Cr.P.C. Pending between the parties. He, however, directed by the same order that since the parties are still at dispute over possession of the premises, the sealing of the premises made in pursuance of the order, dated 27-8-1984 would continue and meanwhile the parties would have their dispute decided from Civil Court.
2. After hearing the learned counsel for the parties the Criminal Revision Application was allowed and the impugned order was set aside by short order, dated 11-3-1986 for reasons to be recorded later on. Following are the reasons in support of the said short order.
3. The facts of the case, in brief, are that respondent Muhammad Ameen owns a plot in Katchi Abadi, Shershah Colony, Karachi. Adjoining to his plot is another plot (hereinafter referred to as the disputed plot) which is said to be owned by two persons namely, applicant Mahboob and Abdul Kalam. The disputed plot is in occupation of applicants Fazal Karim and Ahmed Din as tenants of the above owners. On 4-1-1980 the respondent Muhammad Ameen made an application to the S. D. M. Nazimabad alleging therein that since the disputed plot was in unauthorised possession of undesireable elements he prayed for appropriate action His application was forwarded by the S. D. M. To the Police Station, S.I.T.E. For inquiry. The said police submitted its report, dated 22-2-1984 whereupon the learned S.D.M. Passed an order, dated 27-2-1984 which reads as under:-- "Register the case and premises be sealed under section 145(4) of Cr.P.C. As there is imminent apprehension of breach of peace and the parties to file their respective written statements under section 145(1), Cr.P.C. Within 15 days.
4. Subsequent to this order not only the premises in dispute were sealed but also notice was issued to both the parties calling upon them to file their written statements, After the applicants filed their statements on 5-5-1984, the S. D. M. Took no interest with the result that case was adjourned from time to time due to pre-occupation of the learned S. D. M. In connection with administrative dudes. Meanwhile the S. D. M's order with regard to sealing of the premises was challenged in Revision Application which was dismissed by VII Additional Sessions Judge by his order, dated 18-4-1984 with direction that the S. D. M. Would decide the matter within one month.
5. Thereafter the case was transferred to A.C.M.1, Karachi West and after recording the statement of respondent only he passed the impugned order.
6. At the out set it is to be examined if the learned S. D. M. Before whom the litigation initially started had correctly taken cognizance of the case. As required by section 145, Cr.P.C. The Court can take cognizance only on satisfaction of two conditions firstly, that there exists a dispute between the parties over possession of immovable property and secondly, that the dispute existing between the parties is likely to cause breach of peace. In the instant case it is an admitted position that the respondent Muhammad Ameen on whose application 145, Cr.P.C. Proceedings were Started was neither in possession of the disputed plot nor he claimed to be in possession of the said plot. His only allegations were that the disputed plot which is adjoining to his own plot was in unauthorised occupation of undesireable elements. It was not clear from his case to whom the disputed plot belonged or who was entitled to possession of that plot so that two of the applicants who are actually in possession of the said plot are unauthorised occupants. On the other hand the applicants' case of course was that the disputed plot belonged to applicant Mahboob and one Abdul Kalam, If the applicants' case was correct, the dispute over possession of the disputed plot should be between the applicants who are in possession of the plot and those who are owners thereof. On contrary that all are one and the same party, so much so that at least one` of alleged owners of the disputed plot namely applicant Mahboob has joined hands with the other two applicants in occupation of the disputed plot to contest the litigation. Their joint plea is that applicant Fazal Karim and Ahmed Din are occupying the disputed plot as tenants of applicant Mahboob and one Abdul Kalam who is not party to the proceedings., Thus, the respondent Muhammad Ameen does not have any interest either in ownership or possession of the disputed plot and as such) there can be no disputed between him and the applicants over possession of the said plot. Consequently the learned S. D. M. Had no jurisdiction -- to register the case under section 145, Cr.P.C. If there was any" apprehension of breach of peace, the institution of the proceedings under section 107, Cr.P.C. Against both the parties was the appropriate answer. In fact while submitting its report to the S. D. M. The police concerned had indicated that such action had already been initiated.
7. It was contended by the learned counsel for the applicants that the impugned order suffers from a legal defect inasmuch as that learned Magistrate has not given any decision as to which of the parties was entitled to possession. No doubt the very purpose of section 145, Cr.P.C. Is to decide about the dispute with regard to possession of immovable property and direct the party entitled to possession to continue in possession if that party is already in possession or to be put in possession if that party has been illegally and wrongfully dispossessed two months prior to the preliminary order of the Magistrate calling upon the parties to put in their written statements and produce evidence. The impugned order clearly shows that the learned Magistrate has not taken any decision as to which of the parties is entitled to possession. As has been pointed out above, such decision, in fact, did not arise in this case as admittedly there exists no dispute about possession between the parties. In absence of such dispute even the direction of the learned Magistrate that the parties should go to civil Court for necessary relief is obviously misconceived.
8. Apart from above, even the learned counsel for respondent Muhammad Ameen was not satisfied with the impugned order. His grievance against the order was that as required by section 145, Cr.P.C. The learned Magistrate had not recorded evidence of both the parties which was mandatory before passing of the final order.
9. Therefore, he was also of the view that the impugned order was not sustainable in law. He however contended that the case be remanded back to Magistrate for deciding it afresh after recording of evidence to be adduced by both the parties. He further, submitted that the order with regard to sealing of the premises should not be disturbed until the lower Court has finally determined the question of possession of premises. While appreciating his argument that in the case under section 145, Cr.P.C., before passing final order it is necessary to afford opportunity to the parties to the litigation to produce their evidence, I cannot agree with learned counsel that the case be remanded back to the lower Court or that the sealing of the premises be left intact. It has been made clear in the earlier part of this judgment that the respondent Muhammad Amin on whose application, the case under section 145, Cr.P.C. Was registered does not claim to have any interest in possession of the disputed plot. Therefore, even if the case is remanded to the lower Court, that Court will have no dispute about possession to decide between the parties. If the original application submitted by the respondent Muhammad Amin is read between the lines, it will become clear that his only complaint is that the occupants of the disputed plot are source of inconvenience and nuisance to him. In any case if there is any friction between him and the applicants, and due to that reason there is likelihood of breach of peace, the appropriate course would be to take out 107, Cr.P.C. Proceedings against both parties if the previous proceedings as indicated in the police report submitted to the S.D.M. Have terminated. But such friction between the parties would not justify having recourse to section 145, Cr.P.C.
10. For above reasons as stated above, the revision application was allowed.