1. ' This is an application under section 561-A, Cr.P.C. For quashment of proceedings of the case State v. Pir Mumtaz Ali and 2 others, under section 145, Cr.P.C. Pending in the Court of respondent No,1/S.D.M. City, Hyderabad.
2. ' The brief facts giving rise to the present application are that on 17-121987, respondent No,2 filed a report under section 145, Cr.P.C. Against the applicant and his two brothers before the respondent No,1, inter alia alleging therein that the opponents are residing within the local jurisdiction of this Court, witness Jawaid Alam has filed report under section 448 against them alleging therein that accused Pir Mumtaz Ali has unauthorized trespassed in their Bungalow bearing No,183 of Block 'C', situated in Latifabad, Hyderabad, and they are still in possession of the same. It was further stated that witness Jawaid Alam along with witness Irfan was coming to police station today, i,e, 17-2-1987 at 8-20 a.m. For inquiring about his case, when the above opponents met him on the road out of police station and used harsh language and extended threats in presence of police witnesses.
3. They further observed as to how they will get their Bungalow vacated. It was further alleged in the report that the abovenamed opponents are hardened and quarrelsome persons and had used harsh language and extended threats out of police station. They are still in unlawful possession of the Bungalow. That since the above Bungalow is situated in Unit No,2, Latifabad, Hyderabad within the local limits of this Hon'ble Court, and the opponents are in unlawful possession of the said Bungalow for which F.I.R. Regarding cognizabla offence has been registered with the police but the accused had not vacated the Bungalow and are still occupying the same. The opponents are hardened and quarrelsome persons, there is likelihood of bloodshed as they are still in possession of the Bungalow and they had used abusive language and issued threats in front of police station and such entry No,2 for offence under section 504, P.P.C. Has been kept. It was, therefore, submitted that proceedings under section 145, Cr.P.C. Be taken in respect of the above bungalow and the same may be sealed for keeping peaceful atmosphere. The disputed Bungalow be handed over to the owner in order to maintain peaceful atmosphere.
4. ' On receipt of the above report, the respondent No,1 recorded statements of respondent No,2, respondent No,3 and one Arif Hussain, thereafter passed the following orders on the same date i,e, 24-12-1987:- "From the perusal of the report and statements of Mr. Kazi Chand Mohammad S.H.O., Latifabad, Jawaid Alam and Arif Hussain, I am satisfied that there is likelihood of breach of peace over possession of upper portion of Bungalow No, 183, Block 'C', Unit No,2, Latifabad, Hyderabad. Issue notices under section 145(1), Cr.P.C. Against the opponent's party namely, Pir Mumtaz Ali, Pir Manzoor and Mir Eijaz Ali. Hearing fixed on 3-1-1988."
5. ' On the same day, the respondent No,1 passed order under section 145(4), Cr.P.C. Which reads as follows:- "From the perusal of report under section 145, Cr.P.C. And statements of S.H.O. Qazi Chand Muhammad of Latifabad P.S., Jawaid Alam and Irfan Hussain, it appears that there is a dispute between Jawaid Alam son of Amiruddin Party No,1 and Pir Mumtaz All Shah, Pir Manzoor All and Pir Aijaz Ali sons of Pir Mian Muhammad Party No,2 over upper portion of Bungalow No,183, Block 'C', Unit No,2, Latifabad, Hyderabad, which is likely to cause breach of peace.
6. ' Notices under section 145(1), Cr.P.C. Have been issued to both the parties requiring them to appear in person or by pleader on 3-1-1988 at 8-30 a.m. For filing written statement/objections of their respective claims with regard to the fact of actual possession of the upper portion of said Bungalow. Accordingly I am satisfied that there is every likelihood of breach of peace if no immediate measures are taken therefore I consider this case to be one of emergency and attach the upper portion of Bungalow No,183, Block 'C', Unit No,2, Latifabad, Hyderabad, till the enquiry is completed. Given under my hand and seal of the Court this 24th day of December, 1987."
7. ' On the basis of the above order, the respondent No,2 alongwith his subordinate staff went to the house of the applicant at 7-00 p.m. And he was thrown out of the house, alongwith the household articles. According to the applicant, he was verbally informed by the respondent No,2 about the order passed under section 145 Cr.P.C. By the respondent No,1.
8. ' The case of the applicant is that he was occupying Bungalow No,183/C, Unit No,2, Latifabad, Hyderabad as tenant of respondent No,3 at a monthly rent of Rs,1,000 vide agreement dated 30-4- 1987 and that he had paid Rs,50,000 to respondent No,3 as security deposit. The agreement has been produced as Annexure 'A'. It has been further alleged that the respondent No,3 is closely connected with D.I.-G.P. Hyderabad range, Hyderabad. That the respondent No,3 approached the applicant through the subordinates of D.I.-G.P. Including the respondent No,2 to vacate the premises for some ulterior motives about three months before, to which the applicant did not agree. However, threats were issued to him to vacate the premises, otherwise he will be dispossessed by force and, as such, he was constrained to file Civil Suit for permanent injunction on 18-7-1987 being Suit No,91/1987 (Pir Mumtaz Ali v. Jawaid Alam) in the Court of IVth Extra-joint Civil Judge, Hyderabad. Certified copy of the plaint has been filed as Annexure 'B'. Along with the plaint, an application for interim injunction was moved on which status quo was granted which was being extended from date to date and the last order was passed on 8-12-1987, which was operative upto 4-1-1988. The certified copies of the orders have been filed as Annexures "C-1" to "C- 3". That during the subsistence of the order of status quo, the applicant was arrested by respondent No,2, and in fact interfered with judicial process in trial of civil suit No,91 of 1987, hence the petitioner filed contempt application against the respondent No,2, D.I.-G.P. And S.I.P. Hyderabad on 25-10-1987 on which notices were issued against them. Certified copy of application and affidavit filed in support thereof have been produced as Annexures "D" and "D-1". In spite of the stay order, the applicant was arrested in Crime No,313 of 1987, under section 379, P.P.C. Read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 on 22-10-1987 and the remand of the applicant was obtained upto 4-11-1987. However, since there was no evidence against the applicant and he was falsely implicated and arrested and, therefore, it was shown that he was no more required in the same crime. However, on 4-11-1987, the respondent No,2 again arrested the petitioner in Crime No, 330 of 1987, in another theft case, in which the petitioner was kept under remand upto 14-11-1987, but since he was implicated falsely, and there was on evidence against him, he was released by respondent No,2 on 12-11-1987. Certified copy of letters of remand alongwith true translation have been produced as annexures "E", "E-1", "F', "F-1" and "G" and "G-1". The respondent No,2, as well as S.P. And D.I.-G. Hyderabad were served with the copy of the application for contempt on 18-11-1987 and respondent No,2 filed objections and his affidavit, copies thereof have been produced as Annexures "H" and "H-1". The applicant being apprehensive of further involvement in false cases sent a telegram to the respondent No,1 and other Magistrate working at Hyderabad, on 20-12-1987. Certified copy of the telegram has been produced as Annexure "I". That in spite of the stay order issued by Civil Court, the respondent No,2, in collusion with respondent No,3 filed a false report under section 145, Cr.P.C. Against the applicant and his two brothers on the basis of which the respondent No,1 passed the impugned orders.
9. ' I have heard Mr. Naimatullah Qureshi, learned counsel appearing for the applicant, Mr. M.I. Soomro, learned counsel appearing for the State and have gone through the documents produced alongwith the quashment application.
10. ' It was contended by Mr. Naimatullah Qureshi, learned Counsel appearing for the applicant that the proceedings initiated against the applicant and his brothers were mala fide and orders passed by the respondent No,1 were illegal and without jurisdiction inasmuch as the applicant was a tenant of respondent No,3 and he had already filed a Civil Suit for permanent injunction against him and the possession was regulated by the Civil Court which was within the knowledge of the respondent No,2. That the applicant being tenant of respondent No,3, the proceedings under section 145, Cr.P.C. Were male fide, misconceived and not maintainable.
11. ' Mr. M.I. Soomro, learned counsel appearing for the State has contended that looking to the circumstances of the case, the action of respondents Nos.1 and 2 was not justified and, therefore, the proceedings were liable to be quashed.
12. ' I have considered the contentions of the learned counsel, and have gone through the documents produced alongwith the quashment application. The rent agreement dated 30-4-1987 clearly shows that the applicant was occupying the Bungalow in question as tenant of respondent No,3 at monthly rent of Rs,1,000 and had also deposited Rs,50,000 as security with him. Certified copy of plaint Annexure "B" shows that the applicant had filed a suit for permanent injunction against respondent No,3 before the 4th Extra Joint Civil Judge, Hyderabad on 18-7-1987, being Suit No,91 of 1987. Annexures "C-1", "C-2" and "C-3" clearly show that the status quo was maintained by the Civil Court till 4-1-1988. Annexure 'D' is a certified copy of an application, which shows that a contempt application was filed on 25-10-1987 against respondent No,2, Mr. Asad Ashraf D.I.-G.P. And Mr. Tariq Jamil, S.S.P. Hyderabad. Annexures 'E', 'F and 'G' show that remand of applicant was taken in police custody. Annexure 'H' is copy of objections filed by learned Assistant Government Pleader on behalf of the Contemnors on 18-11-1987, Annexure 'H-1' is a copy of affidavit filed by respondent No,2 on the date, on which the objections were filed. Annexure 'I' shows that the applicant had sent telegrams on 20-12-1987 to respondent No,1 and to other Officers showing apprehension of involvement in false cases, Annexure 'J' is a certified copy of report filed by respondent No,2 before the respondent No,1 dated 17-12-1987. Annexure 'K' is the statement of respondent No,2 recorded by respondent No,1 and order passed thereon under section 145(1), Cr.P.C. While Annexure 'L' is the order passed by respondent No,1 under section 145(4), Cr.P.C.
13. ' The respondent No,3 has filed counter-affidavit in which he denied that the applicant was his tenant. According to him, the Bungalow in question belongs to her mother and on her death it was inherited by him, his two brothers and two sisters and, as such, certificate issued by city Mukhtiarkar has been produced. He has denied the allegations made by the applicant in his application and according to him, the applicant had forcibly occupied the Bungalow in question and, therefore, he had filed a case under section 448, Cr.P.C. With the police. He had admitted the filing of suit by the appellant and according to him, the suit was filed by the applicant mainly in order to save himself from the criminal prosecution. However, on the date of hearing neither the respondent No,3, nor his counsel were present.
14. I have considered the contentions. The documents produced by the applicant prima facie show that he was occupying the Bungalow under dispute as tenant and his possession was regulated by Civil Judge in Case No, 91/1987, inasmuch as status quo was being issued from time to time and was in force upto 4-1-1988. The respondents Nos. 2 and 3 were fully aware of the above civil suit and the status quo order, inasmuch as contempt proceedings were taken against respondent No,2 and others in which he had filed his affidavit in support of objections filed on their behalf. The objections were filed on 18-11-1987 whereas the present proceedings under section 145 were initiated on 24-12-1987. Since the possession was already regulated by the Civil Court by way of status quo order, the proceedings initiated by respondent No,2 were clearly mala fide.
15. ' In the case of Shah Muhammad v. Haq Nawaz and others PLD 1970 SC 470; it was observed by their Lordships of the Supreme Court that:- "The conclusion, we have reached thus, is that a case in which a Civil Court is already seized with the subject-matter of dispute and has passed order regulating possession thereof or a case in which a decree for possession has been granted or a permanent injunction granted restraining the opposite party from interfering with the possession of the decree-holder fall outside the jurisdiction of Magistrate, under section 145, Cr.P.C. Action can of course be taken always under sections 107 and 151 of the Criminal Procedure Code to prevent breach of peace in case of this nature, but no order for attachment of the property can be made."
16. ' In the case of Shera and others v. Fatima and another 1971 SCMR 449 there was a dispute between the parties over the agricultural land and the respondent Fatima apprehending her forcible dispossession at the hands of Shera and others, filed a civil suit. Alongwith the plaint an application under Order XXXIX, Rule 1, C.P.C. Was moved on which the learned Civil Judge issued notice to the defendants appellants and further directed that the status quo may be maintained in the meanwhile. Thereafter, interim injunction was issued after hearing the parties. However, in the meanwhile, the appellant managed with the S.H.O. And got the proceedings initiated under section 145, Cr.P.C., on which the cognizance was taken by the Magistrate and the property was attached.
17. However, Mst. Fatima filed objections and produced the certified copies of the status quo and injunction order on which the learned Magistrate vacated the attachment. Against this order, the appellants went upto Supreme Court and their Lordships of the Supreme Court were pleased to uphold the order of the Magistrate on the ground that since the Civil Court was already seized of the matter and had regulated the possession, the criminal Court had no powers to take action under section 145, Cr.P.C. And, therefore, the appeal filed by Shera and others was dismissed.
18. ' In the case of Nazim Iqbal v. Chaudhary Muhammad Aslam and 4 others 1986 MLD 1203 it was observed by this Court that:- "Sections 145 and 561, Cr.P.C.; Civil Suit pending between the parties and the respondents were granted interim injunction in their favour. Respondents having taken possession of disputed premises and case under section 448, P.P.C., registered against them. High Court and Civil Court granted injunction in favour of the respondents. Criminal Court, held, had no jurisdiction to dispossess the respondents or pass an order under section 145(4), Cr.P.C. In circumstances of the case."
19. From the above discussion, factual and legal position, the proceedings initiated by the respondent No,2 against the applicant were mala fide and the cognizance taken by the respondent No,1 was illegal and without lawful authority, therefore, the application is allowed. The proceedings pending against the applicant before the respondent No,1 under section 145, Cr.P.C. Are hereby quashed.
20. The S.H.O., Latifabad, Hyderabad, is directed to put the applicant in possession of the premises in dispute within 24 hours and report compliance.
21. ' I had decided the above matter on 15-9-1988 and these are the reasons for the same.