' By this application filed under section 561-A, Cr.P.C. Petitioner Raziullah Qureshi has sought quashment of proceedings instituted against him under section 145, Cr.P.C. In the Court of Assistant Commissioner and Sub-Divisional Magistrate, Preedy (South), Karachi.
2. The shop bearing No,2, situated in Halali Building, Frere Road, Karachi is jointly owned by Messrs M. Kamil Abdul Ghaffar and others which was on rent with respondent No,2, who were running an ice-cream parlour in it. Sometime in the year 1978, the respondent No,2, offered the petitioner to take the shop on rent on certain conditions. The petitioner accepted the offer and started the business of food and snacks in the said shop after investing huge amount on account of furniture, fixtures etc. It is alleged that respondent No,2 have, from other persons, received offers for lucrative rent in respect of the said shop and with a view to eject the petitioner otherwise than in due course of law, the respondent No,2 started harassing the petitioner one way or the other in order to compel him to vacate the said shop. The respondent No,2, made an attempt to get the electricity and telephone disconnected. Under these circumstances the petitioner filed a suit for declaration and injunction against respondent No,2. An application for injunction to restrain respondent No,2, from dispossessing the petitioner by force from the said shop was also moved. The Civil Judge directed the parties to maintain status quo vide order, dated 24-8-1987. The said application was ultimately dismissed on 26-1-1989. The petitioner filed an appeal against this order, which is pending decision.
The respondent No,2, thereafter made an attempt to take possession of the said shop forcibly, and having failed to do so, made a complaint to S.H.O. Preedy P.S. Asking him to get the possession of the shop delivered to them. On 2-2-1989, S.H.O. Preedy P.S. Submitted a report before Assistant Commissioner and S.D.M.Preedy, (South), Karachi for taking action under section 145, Cr.P.C. The S.D.M. Took cognizance and directed the parties to file their written statements. On 25-2-1989, an order under subsection (4) of section 145, Cr.P.C. Was passed by learned S.D.M. Directing S.H.O.
Preedy P.S. To attach the disputed shop, which was complied with on 27-2-1989. It is the case of the petitioner that the proceedings drawn against him under section 145, Cr.P.C. Are designed only to pressurise him to vacate the disputed shop, and the order of sealing of the shop is colourable exercise of powers not vested in S.D.M.
3. I have heard Mr. M. Ismail Kassim, learned counsel for petitioner, Mr. Sher Afgan, learned counsel for respondent No,2, and Mr. M. Hayat Qureshi, learned counsel for State.
4. Section 145, Cr.P.C. Lays down the procedure to be followed where the Magistrate is satisfied that:-
(1) a dispute exists concerning any land or water or the boundaries thereof;
(ii) such dispute pertains to possession of such property; and
(iii) such dispute is likely to cause a breach of peace.
' Where the Magistrate is so satisfied, he may pass an order under subsection (1) of section 145, Cr.P.C., followed by an order under subsection (4) thereof.
5. Admittedly a dispute exists between the parties in respect of shop which is in possession of petitioner. The dispute again pertains over possession of this shop. There is, however, bona fide dispute between the parties regarding the status of the petitioner over the shop. The petitioner claims to be a tenant, while according to respondent No,2, he is a mere licensee, whose licence stands revoked.
6. The fact that civil litigation is pending between the parties is not in controversy. No order, interim or final is, however, operating against respondent No,2. It is established position of law that mere pendency of a civil action does not oust the jurisdiction of the Magistrate to proceed under section 145, Cr.P.C. If any authority is needed cases reported as Abdul Aziz and others v. Mian Rafiuddin through his legal heirs 1983 SCMR 928 and Ghulam Murtaza v. The Sessions Judge, Leiah and others 1987 SCMR 622, may be referred.
7. The mere existence of a dispute between the parties does not justify the exercise of jurisdiction under section 145, Cr.P.C. It is essential for a proceeding under section 145, Cr.P.C. That the Magistrate should be satisfied that there is imminent danger of breach of peace between the parties. The main object of these proceedings is the preservation of peace and not to lend helping hand to one party at the risk, peril and prejudice of the other. The learned S.D.M. Had passed initial order under subsection (1) of section 145, Cr.P.C. On 4-2-1989, and had directed the parties to file their respective written statements, and having done so, it was necessary for him to have examined the parties to satisfy himself about the existence or otherwise of the conditions necessary for the exercise of jurisdiction under subsection (4) of section 145, Cr.P.C. The passing of order under subsection (4) of section 145, Cr.P.C., in such a situation where the report of S.H.O.
Preedy P.S. Had lost its significance so far as the emergent condition was concerned, was, therefore, uncalled for.
8. So far I have been discussing the point untrammelled by any authority,) but the point stands concluded by a pronouncement of a Division Bench of thisk Court, reported in Dinal and 7 others v.
Mian Najmuddin and another 19841 P Cr. L J 193 whe.Sin precisely the same question of urgency came up furl decision.
9. In Abdul Hague v. The State and another, reported in 1973 P Cr. L J! 945, Imdadally Agha, J.
Observed that section 145, Cr.P.C. Applies when each one of two opposite parties claims 'actual physical possession' of property in dispute.: In the reported case the parties were doing business in disputed shop together but I falling out on question of profit. The shop in dispute was in possession of petitioner and respondent did not claim any such possession. It was held that provisions of section 145, Cr.P.C. Were not applicable in such circumstances. They cases reported as Miss Rubina Almas and another v. The State and another 1983 P Cr. L J 47, Shaukat Ali v. The State and another 1977 P Cr. L J 259 and Qamaruddin v. The State and 3 others 1976 P Cr. L J 464, are also relevant in this is behalf.
10. It will be noticed from the case-law available on this subject that the jurisdiction under section 145, Cr.P.C. Is to be exercised only when the dispute is likely to cause breach of the peace. The provisions cannot be invoked only by any infringement of private rights, which is a matter properly cognizable by a civil' Court.
11. For the reasons stated above, the application made under section 561-A, I Cr.P.C. Is accepted and proceedings pending before S.D.M. Precdy (South), Karachi, under section 145, Cr.P.C. Are quashed. As a result of this order the S.D.M. Shall direct S.H.O. Preedy P.S. To unseal the disputed shop and hand over its possession to the petitioner forthwith.