ABDUL RAZAK A. THAHIM, J.- This application under section 561-A Cr.P.C, for quashment of proceedings under section 145 Cr.P.C, pending in the Court of Assistant Commissioner and S.D.M., Civil Lines, Karachi, has been filed by Abdur Raheem Baloch.
2. The facts are that on 27-6-1987, the respondents filed an application under section 145 Cr.P.C, in the Court of Assistant Commissioner and S.D.M. Civil Lines, Karachi (South). It is stated in application that Mohammad Siddiq, the father of the respondents, was tenant in respect of shop No.14 of Sir Jahangir Kothari Building, Summer-set Street, Sadar, Karachi, when petitioner is maternal uncle of the respondents and was employed by deceased Mohammad Siddiq in that Shop. After the death of Mohammad Siddiq, the petitioner was allowed to continue business in the said Shop on behalf of the heirs of Mohammad Siddiq and he used to pay profit to them after deducting his remuneration for the labour done by him. Subsequently, the respondents found that peitioner was mis-appropriating a lot of amount and acquiring Property in his own name and names of his sons. He was asked to vacate the shop. The settlement arrived between the parlies at the intervention of Nek Murds and an agreement dated 30-3-1986 was executed by the petitioner by which he agreed to hand over the shop to the heirs of Mohammad Siddiq and on 1-4-1986 and physical possession of the shop was handed over to the respondents thereafter respondents started doing their business in the name of Baloch Ices. The ownership of shop was change and necessary licence was obtained by the respondents. The signboard was put on shop.
3. On 16-6-1987 at about 5.00 a.m., the petitioner, and his brother and son Ishaq, servant Aslam and Sharif forcibly entered into the shop and threatened the respondents and the words were exchanged between them. After some time: Malik Ehsan, Police Officer of Artillery Maidan, sPolice Station along with Police Party came and closed the shop and took the parties at the police station and were arrested under section 107/117 Cr.P.C.
Read with 151 Cr.P.C, for breach of peace. The next day, the parties were released by the order of the Court.
4. It is the report that respondents after releasing on bail received summons of Civil Suit No.1155/87, which was in fact filed on 14-6- 1987 as a part of conspiracy by Malik Ehsan, Police Officer. It is alleged that on 18-6-1987, the matter was taken up by the Civil Court, where the petitioner filed an affidavit in which it was stated that shop was lying locked as keys were with the police, therefore, Civil Court ordered to maintain status-quo. On 20-6-1987, petitioner Abdur Raheem, his sons and servants took over the possession of the shop in conspiracy with the Police. The threats were given by the petitioner and it is stated that dispute over possession of the said Shop is likely to cause a breach of peace.
5. The Assistant Commissioner and S.D.M, after recording the statements of some witnesses of the respondents passed an order under section 145(4) Cr.P.C, and ordered that Property should be attached as there appears eminent danger of breach of peace. The S.H.O. Artillery Maidan Karachi received this order. He informed the Court that Civil Court has already granted status-quo and in case shop is sealed it amounts to contempt of court. Inspite of that S.D.M, directed the Police to comply with his order, therefore, the possession of the shop was taken from the petitioner and shop was sealed.
6. The petitioner immediately on 4-7-1987'through Advocate filed an application and requested the Court to de-seal the premises in view of the status-quo order passed by the Civil Court on 2-7- 1987. The application was dismissed by the S.D.M, by order dated 8-7-1987.
7. Being aggrieved with the order of the Assistant Commissioner the petitioner filed revision application under section 439-A Cr.P.C, in the Court of learned Sessions Judge, Karachi (South), who set- aside the attachment order passed by the S.D.M, and restored the possession to the petitioner and sent back the R & P to the lower court for disposal of the case according to law.
8. The respondents filed Criminal Misc. Application No.317/87, by which the order of the learned Sessions Judge was challenged. Finally the revision application was not pressed by the respondents as such the order of the learned Sessions Judge was maintained and it was further directed to the S.D.M. (Trial Court) to proceed with the case if pending and decide within 3 months.
Thereafter, the petioner has filed this application.
9. I have heard Mr. AItafur Rehman, learned counsel for the petitioner. It is argued by the learned counsel that Civil Court granted status- quo to the petitioner in Civil Suit No. 1155/87 on 20-6-1987.
The proceedings under section 145 Cr.P.C, were entertained on 29-6-1987 when the petitioner was in possession of the shop and there was no eminent breach of peace as before at both the parties oh proceedings under section 107 Cr.P.C, were taken into custody and released on bail by the S.D.M.
It is argued that matter is of a civil nature and civil suit was pending, therefore, learned S.D.M, had no jurisdiction to entertain the proceedings under section 145 C.P.C. It is argued that SD.M. Has violated the order of status-quo of the Civil Court and forcibly dispossessed the petitioner by passing an order under section 145(4) through he was informed about the order of the Court. It is submitted that proceedings have been taken with malafide intention. He has referred to P.L.D. 1970 S.C. Page 470.
10. Mr. M.I. Memon, appearing for the respondts, has taken the legal plea that this quashment application is not competent on the ground that in earlier criminal Misc. Appn. This Court has ordered the S.D.M, to continue the proceedings and complete within 3 months. As such this proceedings amounts to review of the order and arc barred. He referred to the cases reported in 1971 S.C.M.R. 618, P.L.D. 1986 Lahore 294, A.I.R. 1965 Maysoore 224,1985 Pakistan Criminal Law Journal 578, P.L.D. 1970 Karachi 737 and A.I.R. 1928 Lahore 462.
11. Mr. Hayat Qurcshi, appearing for the Stale, has submitted that S.D.M.'s order under section 145 Sub-section(4) Cr.P.C, is illegal. It is submitted that S.D.M, has no jurisdiction to entertain such proceedings when it was pointed out that civil suit is pending and status-quo has been granted. It is submitted that at the relevant time when the proceedings under section 145 Cr.P.C, were entertained, there was no breach of peace was police had already taken action long long ago and petitioner was in possession. It is argued by the ldarned counsel that S.D.M, has wrongly assumed the jurisdiction and it is a case of high handedness. He has referred to 1973 Pakistan Criminal Law Journal 439.
12. The objection taken by Mr. M.L Memon, Advocate, is that this quashment application is not competent as it amounts to review of an earlier order by which the S.D.M, was directed to proceed with the case and decide within 3 months. First of all, I will take up the facts of in Misc. Application No.317/87. Of The respondents chilenged the order dated 19-9- 1987 of the learned Sessions Judge, Karachi (South), whereby he set-aside the orders dated 2-7-1987 and 8-7-1987 of the S.D.M, and restored the possession to the petitioner. This Criminal Misc. Application against the Judgment of the learned Sessions Judge was not pressed by the learned counsel for the respondents and wanted to premission to withdraw the same as such this Cort while dismissing that Criminal Misc.
Application of the respondents disposed off the same as not pressed, but directed that proceeding, if pending before the S.D.M, to be decided with in 3 months. It has also been observed in the order as under:-
13. "The proceedings were initiated on the complaint filed by the applicant and contention of Mr. AItafur Rehman is that the order of the S.D.M, in the proceedings is fraudulent and the final order has been passed.
14. This point was not considered. I do not want to enter into the controversy in this case as there was nothing before this Court except that two orders of the S.D.M, and also of Sessions Judge, who allowed the Revision and put the appellant into possession. His order is a speaking order.
The learned Sessions Judge in his order dated 19-9-1987 directed that the Record & Proceedings be sent back to the lower court.
15. The same order was repeated by this Court for the Speedy disposal of the proceedings. In that criminal Misc. Application, the Advocate for the appellant resisted the withdrawal of the Criminal Misc. Appn, on the ground that civil proceedings were pending and proceedings under section 145 Cr.P.C, were not competent. However, this point was not considered as it was not before this Court and it was not proper stage, when respondent did not press the point and there was no quashment application from the applicant.
16. Mr. Memon has cited number of authorities. In 1981 S.C.M.R. 618, the appellants were convicted with an imprisonment and fine. The conviction was maintained, but the sentence of the appellant was reduced to already undergone. The matter was taken to the Supreme Court, where it was argued that the High Court could have reviewed his own order it was held that the high Court under section 369 of the Criminal Procedure Code preclude from reviewing the order. In A.I.R. 1928 Lahore 462, it has been held that section 561-A, Cr.P.C, does not confer inherrent powers to High Court to aIter or review his own judgment except a case of defauIt or want of jurisdiction. In P.L.D.
1986 Lahore 2940, P.L.D. 1970 Karachi 737, A.I.R. 1965 Maysoor 224, 1985 Pakistan Criminal Law Journal 578, the same view is taken. I fully agree that under section 369 Cr.P.C. Review is not competent. But in the present case the order passed in Criminal Misc. Application as stated above was only to the extent of interim order of the Sub-Divisional Magistrate and order passed by the learned Sessions Judge who set-aside both the orders and before this Court the merits or demerits of the proceedings were never argued but informally in way of routine learned Sessions Judge directed that proceedings under section 145 Cr.P.C, to continue. The legal point about the jurisdiction of the proceedings on the point of law were not competent aIthough the proceedings before the S.D.M, were challenged before the learned Sessions Judge, but as the matter was not for quashment of the proceedings and it was not rightly considered, but the learned Sessions Judge has limited to extent of interim orders passed by the Sub-Divisional Magistrate Civil Lines, Karachi and both were set-aside and respondent before this Court also did not press the revision. In these circumstances, the proceedings under section 561-A for quashment are mainly on the facts and law. The previous orders passed on the previous application were independent and by entertaining these proceedings under section 561-A of the quashment of the entire proceedings are different and does not amount to review of the previous orders as the competency of the proceedings before the S.D.M, were argued by the petitioner were not considered on the simple grounds that the order of the Sessions Judge were challenged by the respondent at that time. Now the petitioner first time has come for quashment and I am of the view that this quashment application is to be considered independently according to law and is competent and is not there.
17. Mr. AItafur Rehman has referred to a case of Shah Mohammad v/s. Haq Nawaz reported in P.L.E5.
1970 S.C. 71, where it has been held that Jurisdiction of Criminal Court to attach Property under section 145 Sub-section (4) Cr.P.C, when the Property was already subject matter of an order of Civil Court recalling its possession during the pfidancy of the Civil suit is not competent. The Magistrate cannot act under section '145 Cr.P.C, in vi&latiori of decree/order passed by the civil Court during the pendency of the Civil Suit. It is an admitted position that proceedings under section 145 Cr.P.C, were entertained by the S.D.M, after the Civil Suit was filed and at that time the appellant had sought an order of statUs-quo in his favour. Not only .His but with regard to breach of peace, an action under section 107 and i51 Cr.P.C, was already taken by the police and the very Magistrate granted bail to both the parties.
18. Mr. Hayat Qureshi, appearing ror the State, has supported the quashment and referred to a case of Khus Mohammad V/s. The State reported in 1973 Pakistan Cirminal Law Journal 438(439), where it has been held that proceedings under section 145 Cr.P.C, are transpiratory nature and Magistrate seizes to deal with question of possession with the disputed land as soon as safe-guard seizes the matter. In this case, number of authorities have relied upon and discussed. In case of Imamdad Khan V/s. Mohammad Ilyas and two others reported in 1971 S.C.M.R. 581(584) held as under:-
19. "It appears to us that as the disputes between the parties were subject-matter of civil suits and ad interim injunctions and status quo order have been passed against the respondents in these suits the criminal Court was not competent to interfere with the possession of the appellants in respect of the property in dispute. On the view taken by this Court in the above-mentioned case, the order of the criminal Court was without jurisdiction. It was illegal and therefore, is liable to be set aside."
20. The Civil Suit No.1155/87 was filed in the Court of IXth Senior Civil Judge (South ) Karachi on 14-6- 1987 by the petitioner and on 20- 6-1987 the following order was passed on inter-locutary application:-
21. "Plaintiffs advocate present. Mr. Mohammad Ikram Siddiqul Advocate filed power for the defendants along with C/A, while plaintiffs Advocate filed application u/s. 151 CPC for interim relief, notice of which has been waireed by Mr. Ikram. Put off to 12-7-1987 for W/S rejoinder if any, and hearing of the Injunction application. Meanwhile without. Prejudice to the contentions of the parties, they are directed to maintain status-quo. Application u/s 151 CPC stands disposed off accordingly."
22. In the aplication filed under order 39 rule 1 and 2 CPC, the petitioner in para 6 clearly stated that he is in possession of the shop and business in question carried on, therefore, injunction be granted to restrain the defendant from causing interference in the possession of the plaintcff (Petitioner) and on this application the status-quo was granted. The proceedings under section 145 Cr.P.C, were entertained by the S.D.M, on 29- 6-1987, while the order of status-quo was already passed by the Civil Courtand it was clearly stated by the petitioner before the Civil Court that he is in possession of the shop.
Inspite of that S.D.M, passed an order under section 1451 sub-section (4) Cr.P.C. The order was communicated to the P.S. And it is on the record that S.H.O, concerned pointed out in writing to the S.D.M, on 21-7-1987 that there is an order of the Civil Court as such it will amount contempt of Court in case the Property is attached and possession is taken from the petitioner. Inspite of that S.D.M, got the order executed. Subsequently, an application was moved by the petitioner on 4-7-1987 in which the S.D.M, was requested to deseal the premises and this application was dismissed by the S.D.M, by order dated 8-7-1987 and also discussed the status of the status-quo granted by the Civil Court and interpreted it. With great regret I say that the S.D.M, knowingly took the proceedings under section 145 Cr.P.C, and dispossessed the petitioner with malafide intention contrary to the order of the Civil Court acting beyond its jurisdiction. For which I am passing a separate order. On facts and law the proceedings taken under section 145 Cr.P.C, are not competent.
23. Upshot of the above discussion is that proceedings under section 145 Cr.P.C, in the Court of S.D.M. Civil Lines Karachi are quashed.