1. ' By this application under section 561-A, Cr.P.C. The applicants seek quashment of proceedings under section 145, Cr.P.C. Pending before the Assistant Commissioner and Sub-Divisional Magistrate, Bin Qasim, Karachi (East) and an order, dated 10-1-1987 passed therein. Their case is that the applicant Inayat Masih is owner and occupant of House NoA/18/31, Qayoomabad, Korangi Road, Karachi and the applicant Sharif is a tenant there. It is alleged that the respondent Talib Allah Ditta picked up dispute with the applicant Inayat Masih over that house and the matter was reported to Korangi Police and proceedings under section 107/117, Cr.P.C. Were taken against them in the Court of S.D.M. Bin Qasim,, Karachi (East). It is further stated that the respondent Talib Allah Ditta filed a Civil Suit No, 1138/86 in the. Court of IXth Civil Judge, Karachi (East) on 17-9-1986 for possession of the house, whereupon order of status quo was made. It is alleged that the respondent Talib Allah Ditta, hereinafter mentioned as the respondent, initiated proceedings under section 145, Cr.P.C. In the Court of &D.M. Bin Qasim, Karachi (East) through the S.H.O., Korangi and the learned Magistrate made an order, dated 10-1-1987 for sealing of the house and the house was sealed including the portion in occupation of the applicant Sharif as tenant.
2. ' The learned counsel for the applicant has urged that the house was in possession of the applicant Inayat Masih and his tenant Sharif and that a suit for its possession filed by the respondent was pending in the Civil Court and an order for maintaining status quo made by the Civil Court in suit was operative and the learned Sub-Divisional Magistrate did not have jurisdiction for passing order of attachment of the house. He has relied upon the cases reported in PLD 1970 SC 470; PLD 1985 SC 240 and 1986 P Cr. L J 1198. He has further urged that it was disclosed in the application made by the respondent for taking 145, Cr.P.C. Proceedings that a suit had been filed and that the learned Magistrate should not have entertained the application. On the other hand, the learned Advocate for the respondent has contended that there was dispute between the parties over the possession of the house and there was apprehension of breach of peace and the learned S.D.M. Passed the impugned order in exercise of his powers under section 145, Cr.P.C. And the pendency of the civil suit did not oust his jurisdiction of taking appropriate measures for averting impending breach of peace. He has cited several cases in support of his submissions. The cases relied upon by him are'1985 SCMR 804; 1983 P Cr. L J 2068, 2365, 2590; 1984 P Cr. L J 274; 1985 P Cr. L J 2125; PLD 1981 SC (Azad J&K) 111; PLD 1976 SC 338 and PLD 1985 Lah.
3. 66.
4. The dispute between the parties over House No,A/18/31, Qayoomabad, Korangi Road, Karachi was sub judice before the Civil Court in Civil Suit No, 1188/86 filed by the respondent for possession and an order for maintaining status quo made by the Civil Court was operating when the respondent instituted 145, Cr.P.C. Proceedings and succeeded in getting the house premises sealed. It has been stated that police had already taken proceedings under section 107, Cr.P.C. Against the parties.
5. These facts were disclosed in the application made by the respondent for taking 145, Cr.P.C.
6. Proceedings. They were also disclosed in the written statement filed by the applicant Inayat Masih in pursuance of the order passed by the Magistrate. In the circumstances, the learned S.D.M.
7. Misused his powers in making order for sealing of the residential premises which was in occupation of the applicant Inayat Masih. Even the filing of the proceedings by the respondent was mala fide in his failing to get a favourable order from the Civil Court. Reference may be made to the case of Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470 wherein it was held that a Magistrate cannot under section 145 of the Criminal Procedure Code Act in violation of a decree or, the terms of an order passed by Civil Court during the trial of the suit, and another case ,Mehar Muhammad Sarwar and others v. The State PLD 1985 SC 240, in which it was held that a Magistrate is empowered to make enquiry under section 145, Cr.P.C. To regulate possession of property in dispute for the time being only to avert apprehension of breach of peace, and where possession of same property is regulated by the Civil Court, even though by a temporary injunction, the matter falls outside the jurisdiction of the Magistrate under section 145, Cr.P.C. Of course, a different view was taken in the case of Muhammad Hameed v. Khushi Muhammad and another 1984 S CM R 804 but the case of Mehar Muhammad Sarwar and others v. The State is a subsequent decision by four Judges whereas the former case was decided by two Judges. In the light of the latest decision of the Supreme Court in the aforesaid case of Mehar Muhammad Sarwar, reference to other cases relied upon by the learned counsel for the opponent is not necessary and it may be mentioned that most of these cases are not applicable to the facts of this case.
8. 'For the reasons recorded above, the proceedings under section 145,1 Cr.P.C. Instituted by the respondent Talib Allah Ditta in the Court of S.D.M. Bin Oasirn, East Karachi and order, dated 10-1-1987 passed by the learned Magistrate therein for sealing of the house in occupation of the applicants amount to the abuse of the process of the Court and are quashed. It is ordered that the house shall be desealed forthwith and its possession shall be restored to the applicants.