This is a petition under section 561-A read with section 439, Cr. P. C. Which has been filed by the petitioner Abdul Haque against (1) the State and (2) Ghulam Muhammad. In this petition the petitioner prays in the relief clause that the proceedings taken by the learned Assistant Commissioner and S. D. M., Old Town, Karachi under section 145, Cr. P. C. Against 'both the petitioner and the respondent No. 2 as well as the order of attachment by the learned Magistrate of the shop in dispute be quashed.
2. The relevant facts of the case briefly are these. There is a shop No. 1 belonging to the Karachi Municipal Committee which is situated in Moulvi Musafir Khana, M. A. Jinnah Road, Karachi. This shop was allotted by the Municipal Committee to the respondent No. 2 Ghulam Muhammad about 7 or 8 years ago on rental basis. About 5 or 6 years ago, the respondent No. 2 divided this shop in two portions one of which he numbered as I-A which he gave to the petitioner Abdul Haque after taking advance of Rs. 12,000.00 from him and on a monthly rental basis of Rs. 200. For some yeas there arose no dispute between these parties as regards this shop which was given to the petitioner. But in June, 1972 when the respondent No. 2 wanted to increase the rent of the shop to Rs. 300 which he demanded from the petitioner a dispute arose between them two. On account of this dispute the respondent No. 2 filed a complaint on 15-6-1972 under section 145 read with section 107/ 117 and section 144, Cr. P. C. Before the Assistant Commissioner and S. D. M., Old Town, Karachi.
The allegations in this complaint, I am told at the Bar by counsel for the petitioner, were that the petitioner was taken by the complainant who is the respondent No. 2 as a partner in the business of Regzin and plastic which was being carried on by the petitioner in the shop and that the petitioner failed to account the income of the said partnership business and, therefore, the said partnership business was dissolved on 31st December, 1971. The complainant, i.e. The respondent No. 2 herein, further alleged in the complaint that there was appre--hension of the breach of peace and prayed for necessary order. The learned Magistrate, who entertained the complaint referred it to the police of Iddgah Police Station for investigation. The A. S. I. P. Wahid Hussain of Police Station Iddgah submitted his report in compliance with tae orders of the Magistrate on 28-6-1972 with the recommendations that both the parties may be bound down and the shop in dispute maybe attached. True copy of this report has been attached to the petition and is marked Annexure 'A'.
However, no action was taken by the learned S. D. M. On this report of the A. S. I. P. For reasons not known as yet. Thereafter, on 6-7-1972 the same A. S. I. P. Wahid Hussain filed a report before the learned S. D. M. Under petition and is marked Annexure 'B'. Acting on this report learned S. D. M.
Ordered the registration of the case being as Case No. 466/72 entitled State v. Abdul Haque under section 107/117, Cr. P. C. On 7-7-1972, the report having been made on the prior day. The learned S. D.
M. Then issued notice to both the opponents i. e. The present petitioner and the respondent No. 2 under section 114, Cr. P. C. For 27-7-1972 as a certified copy of the diary of this case which has been produced as Annexure 'C' to the petition shows. On 27-7-1972, it appears that only the petitioner was present in the Court of the learned S. D. M. And be furnished surety as ordered under section 112, Cr. P. C. Which was passed and read over to him by the learned Magistrate to pleaded not guilty. This case was then put off to 18-8-1972 and summonses were ordered to be issued to the witnesses. On 2-8-1972 the same A. S. I. P. Again lodged a report in the Court of the said learned S. D. M. Under section 145, Cr. P. C. Wherein both the present petitioner and the respondent No. 2 were involved as opponents. This report in brief mentions that on account of business relationship having been strained 'between the two opponent parties and there being a dispute over the shop the parties were likely to cause danger of breach of peace, therefore, action under section 145, Cr.
P. C. Was called for and it was also prayed that the shop in dispute be sealed or attached. The learned S. D. M. On the next day recorded the statement of A. S. I. P. Wahid Hussain on solemn affirmation, the substance of which was the same as the report of the A. S. I. P. Under section 145, Cr.
P. C. Thereafter, the learned S. D. M. On the same date issued the preliminary order under section 145, Cr. P. C. And also passed an ad interim order of attachment of the shop in dispute directing the A. S. I. P. To seal the shop which was, accordingly attached and sealed. Feeling aggrieved by these proceedings under section 145, Cr. P. C. And the ad interim attachment of the shop in dispute the petitioner has filed the present petition for quashment as already stated.
3. The learned Advocate for the petitioner has contended that taking facts of the report under section 145, Cr. P. C. Filed by the said A. S. I. And his statement on oath thereon to be correct still these facts would not attract the provisions of section 145, Cr. P. C. As the learned Advocate also urged that there was no dispute over the shop in question between the two rival claimants who were each claiming actual possession of the shop with himself. In order to appreciate this contention it will be necessary to reproduce in extenso the report made by the A. S. I. P. Under section 145, Cr. P. C. To the S. D. M. And his statement on oath which are as under :----- "Report under section 145, Cr. P. C.
Sir, The facts in brief are that three months back, the 1st party had given his half shop and some amount to the second party and got plastic business started and it was decided verbally that half of the profit shall be paid on every first of the month. So this matter went on properly. Now, for the last about 4 months he has stopped giving profit or account and said that the same was his own shop and for what he should give profit to him. The first party made every effort that the second party should -vacate the shop of the first party but he says that he himself is the owner of the shop.
The first party is the owner of the shop, and he deposits money with the K. M. C. Prior to this the first party had filed a case in Court, the enquiry whereof was made by the P. S. Now, the second party is threatening constantly to the first party and he would cause him loss through Goondad and Badmashes.
Since both the 1st party and the second party sit side by side in the shop it is apprehended every time that no such thing should occur which could cause danger of breach of peace.
Under these circumstances, it is requested that the Sind Plastic Shop in dispute may be ordered to be sealed till the decision of the case. The report is submitted."
Statement of Wahid Hussain on S. A.
Ghulam Muhammad son of Nizamuddin, resident of shop No. 1 Molvi Musafirkhana had given his half shop and a sum of Rs. 5,000 to Abdul Haque for doing plastic business and it was settled that half of the profit shall be divided among themselves on 1st of each month. For the last about four months Abdul Haque did not give any account. When he was asked for the account he said that the shop was his own and those goods were also his and so what was he asking for. Upon this, quarrel took place every 2nd or 3rd day and the same was being hushed up by the adjacent shopkeepers. Now, this matter has increased to such an extent that there is danger of breach of peace and that if the said shop in dispute is not sealed, it is apprehended that the second party shall mis--appropriate the goods of the shop. Prior to this, a complaint was received from the above Court, the investigation whereof was also found from the statements of the complainant ands other witnesses, which I have got written in my aforesaid statement. There has been dispute over this shop since long and now the conditions have become more sanguine. Therefore, after investigation I had submitted a report under section 145, Cr. P. C. To the aforesaid Court so that the same could be redressed at an early date."
4. Before entering into the discussion of the facts of the case which are the basis of it as comprised in the report under section 145, Cr. P. C. And the statement on oath of the A. S. I. F. Wahid Hussain reproduced above I would like to mention and discuss as to what is the purpose and the scope of section 145,. Cr. P. C. Which is as under :----- "145.-(1) Whenever a District Magistrate, Sub-Divisional, Magistrate, or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of hit jurisdiction he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as to the fact of actual possession of the subject of dispute.
(2) For the purposes of this section the expression 'land or water', includes buildings, markets, fisheries, crops or other: produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at near the subject of dispute.
(4) The Magistrate shall then, without reference to the merit of the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence; (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date: Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed ; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.
(6) If the Magistrate decides that one of the parties was or should under the first proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding alt disturbance of such possession until such eviction and when he proceeds under the first proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed.
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order fur the proper custody or sale of such property, and, upon the completion of the enquiry, shall make such order for the disposal of such property, or the sale proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107."
5. It will be seen from the bare perusal of section 145, Cr. P. C. Above reproduced that it relates to adjudication of dispute between two rival claimants of actual possession of land or water or the boundaries thereof which are the subject of the dispute. Land in this connection includes a building, i.e. It will also include a shop. But the essence and the necessary element of this section is that there should be two opposite-parties each, claiming "actual physical possession" of the subject-matter in dispute with himself. In the instant case I will proceed to show from the report of the A. S. I. P. Under section 145, Cr. P. C. And his statement on oath reproduced above that although the shop of which the respondent No. 2 is the allottee from the K. M. C. Still the portion of it which he had given to the petitioner still he is not disputing the actual possession of that shop to be his. From the report of the A. S". I. Reproduced above it will be seen that the substance of it is that both the petitioner and the respondent No. 2 have fallen out on account of their business dealings in the two shops which are adjoining each other which originally comprised of one shop allotted by the K. M.
C. To the respondent No. 2 after which the respondent No. 2 gave half of it to the petitioner with reference to business in which the dispute has arisen and, therefore, the report further says, that respondent No. 2 has made every effort that the petitioner should vacate the shop of his, but the petitioner says that he himself is the owner of the shop. So that is more than abundantly clear that what the respondent No. 2 desires is that the petitioner should vacate the portion of the shop that he had given to the petitioner on rental basis in which both were doing business together and dispute arose on the question of profit of business between the two. The respondent No. 2 is not claiming the actual possession of the shop No. I-A, which was in possession of the petitioner at the time these proceedings, under section 145, Cr. P. C., were taken. Therefore, obviously, I there were no two rival claimants claiming actual possession of the subject in dispute as envisaged by section 145, Cr. P. C. The same position on facts emerges from the statement on oath of the A. S. I. P. Which also has been reproduced above. He only therein adds that thereby there was danger of breach of peace and, therefore, the shop should be sealed. But once again it is to be remembered that there was, from this report of the A. S. I. P. And his statement on oath which have been reproduced above, no material before the S. D. M. To take proceedings under section 145, Cr. P. C. As on the facts constituted by these two documents the provisions of section 145, Cr. P. C. Were not attracted to them. Obviously, therefore, no useful purpose or public purpose will be served by carrying on further the proceed--ings under section 145, Cr. P. C. Against the petitioner as in the circumstances just stated above when section 145, Cr. P. C. Is not g. Applicable to the facts of the case it would amount clearly to abuse of process of Court to allow the proceedings to progress further. On this ground alone I am of the opinion that proceedings under section 145, Cr. P. C. Started against the petitioner now pending before the learned S. D. M. Should be quashed and consequently, the order of attachment of the shop should also be vacated.
6. However, the learned counsel for the respondent No. 2 has only put forward one point which is that according to him as he had not submitted his written statement of claim as required by section 145 (1), Cr. P. C. Therefore, this was too premature a stage to order quashment of the proceedings. In support of his contention he cited a decision of the Supreme Court in the case of Mohsln All and another v. The State (1972 SCMR 229). In this case no doubt the facts were that a complaint had been filed under section 430, P. P. C. Against some accused persons and after investigation a challan was sent to the Court of the local Magistrate for trial but before the trial opened the accused persons therein moved the High Court under section 561-A, Cr. P. C. For quashing the proceedings but the proceedings were not quashed by the High Court as it held that the proceedings in the trial Court were at an early stage. This view of the High Court was also upheld by this decision of the Supreme Court. In other words it means that in a trial of a case soon after challan when the proceedings have not progressed quashment of the criminal proceedings should not take place as it would amount to stifling the prosecution at an early stage. The learned counsel has also cited another case of the Lahore High Court which is entitled as Mst. Altaf Bibi and another v. The State (PLD 1972 Lah. 121) and it has held the same view as the Supreme Court has held in the above-mentioned reported case. But it will be seen that both these reported cases relate to quashment of proceedings of a criminal trial in which cases an ordinary Court of criminal law assumes proper jurisdiction over the matter and it has yet to try the case to its final conclusion one way or the other. When such is the situation it is obviously necessary, which I need hardly mention, that the prosecution at the earlier stage should not be stifled by quashing the proceeding of the criminal prosecution. But I think the principle would different in cases where only an enquiry is to be conducted such as one under section 145, Cr. P. C. Which is not a trial at all. Besides, in the instant case it is quite clear that even assuming the facts of the prosecution allegations to be true still the proceedings under section 145, Cr. P. C. Could nit be drawn up as discussed by me above, therefore, clearly it will be an abuse of process of Court to allow the proceedings to make some progress and come to a final conclusion which will be the same as it can be envisaged now. I, therefore, find no substance in this contention of the learned counsel for the respondent No. 2.
7. On behalf of the State the learned Additional Advocate General appeared and he also opined that at the present stage of the proceedings under section 145, Cr. P. C. They should not be quashed and he relied upon the same rulings as were mentioned by the learned counsel for the respondent No. 2. But once again I have to say that this contention I have repelled already as coming from the counsel for the respondent No. 2, therefore, I do not agree with the point of view of the learned Addition Advocate-General.
8. There will be no purpose served by leaving the proceeding under section 145, Cr. P. C. m question to make head way ate get concluded in due process of time as the result is quite clear even now, as discussed by me above. As it is, against the petitioner proceedings under section 107/117, Cr. P. C.
Are pending with respect to the same shop and this would serve the purpose of the prosecution.
Accordingly, for the foregoing reasons quash the proceedings against the petitioner under section 145, Cr. P. C. And also vacate the ad interim order of attachment o; the shop in dispute consequently possession whereof shall be made over to the petitioner forthwith after unsealing it.
9. Accordingly this petition is allowed as prayed.