This Criminal Miscellaneous Application was fixed for hearing of Misc Applications Nos. 1569/88 and 1570/88 but since the matter involved in the main Cr.Misc. Application is very short, learned counsel of the applicant and the A.A.-G. Agreed to address the Court on the main petition itself which has been heard.
2. Through his application under section 561-A Cr.P.C. The applicant seek the quashment of proceedings instituted against him under section 145 Cr.P.C. In Case No. 118/192 of 1988 of Police Outpost Banaras of Orangi Police Station. An order under Section 145 (1) and (4) Cr.P.C. Dated 3-4- 1988 is also impugned in these proceedings. The record shows that proceedings under section 145, Cr.P.C. Had been taken in the past in respect of the same house and in those proceedings (Case No. 120/87 of the Court of Assistant Commissioner and S.D.M. Nazimabad, Karachi) witness Makeen Khan had stated, among other things, that no apprehension of breach of peace, was apprehended. The statement of respondent No.2 Yar Mohammad was also recorded in those proceedings in which he had stated that he had rented out the house in dispute to applicant Sher Afzal about 13 years ago and that the house was sealed by the police three months before the date when this statement was recorded which was recorded on 10-4-1987. The respondent No.2 Yar Muhammad admitted that he had not filed any case (against applicant Sher Afzal) for recovery of rent. The statement of Sub-Inspector of Police, Roshan Khan was also recorded whose copy is on record as Annexure `C' and it was stated by Roshan Khan that in my report I disclosed serious breach of peace over the quarter in question of Sher Afzal Khan against Yaree and others. The wife of Sher Afzal Khan and his sons received injuries and were sent to hospital. He further stated that he removed the wife of Sher Afzal and his children alongwith two goats from the said quarter and thereafter locked and sealed the said premises. It was evident from the statement of this police official that the family of the applicant was injured at the hands of respondent No.2 Yar Muhammad and his party. Eventually vide order dated 2-11-1987 (Annexure `D' to this application) learned Assistant Commissioner and S.D.M. Nazimabad, Karachi (Central) directed that since the main party had admitted that it had no apprehension of breach of peace on the part of Sher Afzal, there was no sense in prolonging the proceedings any longer which had already taken 15 years in the Court the proceedings be dropped, the property be resealed and its possession be handed over to the party from whom it was taken at the time of sealing. It appears that the possession of the said quarter was then delivered toy applicant Sher Afzal in pursuance of this order.
Subsequently, respondent No.2 filed a civil suit for declaration of permanent injunction against the applicant seeking a declaration of title in respect of the said quarter (Civil Suit No.1266/87 of the Court of IVth Senior Civil Judge, Karachi (West), the plaint of which is on record as Annexure `E'.
Respondent No.2 had also filed an application under Order XXXIX, Rule 1 and 2, C.P.C. Seeking mandatory injunction directing the applicant not to obtain possession of the quarter. It appears that this application was not granted. At this stage of the dispute between the parties, A.S.I. Dilawar Hussain of Banaras Police outpost of P.S. Orangi Town, Karachi (West) filed a report under section 145, Cr.P.C. In the Court of Assistant Commissioner/S.D.M. Orangi, Karachi (West) stating that certain reports had been lodged by Yar Muhammad and these reports were entered in the Roznamcha of the police post and in para. 2 of this report a summary of dispute between the parties was given. It was not alleged in this report that there was any apprehension of breach of peace. However, it was prayed in the end of this report that the order of sealing the premises in question may be issued.
This report was made on 25-3-1988 and the learned Assistant Commissioner/S.D.M. Orangi Town registered a case on the basis of this report, came to the conclusion that there was imminent apprehension of breach of peace between the parties over the property in dispute and, accordingly, he was pleased to issue notice under section 145(1), Cr. P.C. And also to pass order under section 145(4), Cr.P.C. Whereby the quarter ill question was attached and sealed till further orders. In response to the notice served upon him, the applicant Sher Afzal filed a detailed written statement before the learned Assistant Commissioner and S.D.M. Orangi Town, Karachi. Which is on record as Annexure `H'. In this write n statement the details of dispute were explained and Sher Afzal claimed to be the owner of the house in question and alleged that the police had submitted a false report before the Court and in pursuance of the order of the Court dated 3-4-1988 he (Sher Afzal) applicant was ejected from the house and the house was again, sealed. Respondent No.2 has also filed a written statement in which he claimed that the house in question belongs to him. The matter is still pending before Assistant Commissioner and S.D.M. Orangi Town, Karachi.
3. A perusal of the record shows that there is no question of apprehension of breach of peace. The dispute between the parties is of civil nature. Respondent No.2 Yar Muhammad has already filed a suit seeking a declaration as to his title. There was no justification to institute proceedings under section 145(1), Cr.P.C. And at any rate order under section 145(4), Cr.P.C. Is perverse and cannot be maintained. It is the applicant who had been in possession of the house and if the police was of the view that there was any apprehension of breach of peace, such apprehended breach of peace could not have been at the instance of the applicant because he was in possession. As such apprehension of breach of peace could only have been at the instance of respondent No.2 Yar Mohammad and the police should rather have taken preventive action against him to maintain the peace. Attaching and sealing the house of the applicant was extremely uncalled, for and amounted to misuse of the powers. Moreover, the report made by A.S.I. Dilawar Hussain does not even state that any apprehension of breach of peace! Was imminent. Learned A.A-G. Conceded that the impugned proceedings are unwarranted and may be quashed. Proceedings under section 145 Cr.P.C., pending against applicant Sher Afzal in the Court of Assistant Commissioner/S.D.M.
Orangi Town, Karachi, are accordingly quashed for the reasons given above. The concerned police is directed to deseal the house in question and deliver its possession to Sher Afzal.
M.Y.H./S-429/K Proceedings quashed.