1. ' This is an application under section 561-A, Cr.P.C. For the qaushment of proceedings which were pending against the applicants under section 145, Cr.P.C. Before A.C.M. And S.D.M. Garden, Karachi.
2. ' The brief facts giving rise to the present application are that on 17-2-1988 respondent No,2 filed an application under section 145, Cr.P.C. Against the applicants and Fahimuddin, Samiuddin and Mrs. Tazeem Begum, before the S.D.M. Garden at Karachi, inter alia alleging therein that he was partner/equal shareholder of Messrs Wasim Brothers Iron Works situated at RC-I Mission Road, Karachi, and Premier Engineering Works, Usmanabad, Karachi. That prior to August, 1987 applicants/opponents Nos.1 and 2 were receiving Rs,10,000 each per month from the profit, and used to pay Rs,5,000 per month to the complainant. That from August, 1987, opponents have totally imposed ban on the entry of complainant into premises of above-mentioned factory and refused to pay single penny out of profit to the complainant. That now opponent/applicant No,1 unauthorized, illegally and by violating terms and conditions of the partnership have become sole authority of Wasim Brothers Iron Works, and opponent/applicant No,2 of Premier Engineering Work, Usmanabad. That whenever he went to the factories he was beaten and was not allowed to enter in the factory. He had made representation to the D.I.-G. Police, Karachi, on 13-101987, on which action under section 107/117 was taken against the other side. That there was apprehension that he was deprived from his legal and legitimate rights, capital and property and its profit. There was also exchange of notices between the parties regarding the partnership business. It was further stated that since he has been forcibly and illegally dispossessed from time to time, there was serious emergency, therefore, action under section 145, Cr.P.C. May be taken against the opponents/applicants and others.
3. ' On receipt of the above application the learned S.D.M. Ordered that the statement of complainant be recorded under section 200, Cr.P.C. However, the diary of the case shows that 21-3-1988 the following order was passed:.
4. "Challan report on the application of Naimuddin received, register the case. Put up on 23-2-1988 for notice under section 145(1), Cr.P.C. Parties directed to attend."
5. ' However, on 15th May, 1988, the learned S.D.M. Passed an order directing S.H.O. Eidgah P.S. To attach and seal the disputed premises forthwith and direct the parties to appear before the Court on 21-5-1988. The above abashment application has been filed for abashment of above proceedings including the order attaching property in dispute.
6. ' I have heard Mr. Muhammad Asghar Khan, learned counsel appearing for the 'applicants, Mr. Kazi A. Ghani, learned .Counsel for the respondent No,2, Mr. Abdul Waheed Siddiqui, learned counsel appearing for the State, and have gone through the documents produced along with abashment application.
7. ' Mr. Muhammad Asghar Khan, learned counsel appearing for the applicant has contended that bare reading of application under section 145, Cr.P.C. Will show that the parties were partners in the business and dispute was of civil nature for which the applicants have already filed a Suit No, 343 of 1988 in which status quo was granted on 3-3-1988. That the application clearly shows that the respondent was merely a sleeping partner and there was no apprehension of breach of peace in respect of the property in question. Moreover, action against him under section 107/117, Cr.P.C. Was already taken by the S.D.M. Himself and, therefore, proceedings under section 145, Cr.P.C. Were not maintainable. The learned S.D.M. Has not given any reason for his satisfaction that there was apprehension of breach of peace while order under section 145(1), Cr.P.C. Was passed and, therefore, the entire proceedings were misconceived and not maintainable.
8. ' Mr. Kazi A. Ghani, learned counsel appearing for the respondent No,2 has contended that the respondent No,2 was a partner in the firm of the applicants and he was forcibly dispossessed from the same, even he was not being paid Rs,5,000 per month towards the profit as agreed between the partners.
9. ' Mr. Abdul Waheed Siddiqui, learned counsel appearing for the State has conceded that it was necessary for the S.D.M. To have given reasons for his satisfaction that there was no apprehension of breach of peace in respect of the property in dispute, while passing order under subsection (1) of section 145, Cr.P.C. However, he has further contended that the learned Magistrate has given reasons in his subsequent order passed under section 145, subsection (4), Cr.P.C.
10. I have considered the contentions of the learned counsel. The bare reading of application under section 145, Cr.P.C. Specially paras. 3, 4, 5, 13 and 14 clearly shows that there was a dispute between the parties/partners regarding the partnership business. In para. 3 of the application it has been stated that prior to August, 1987 opponents Nos. 1 and 2 were getting Rs,10,000 per month from the profit and used to pay Rs,5,000 to the complainant. In para. 4 of the application it was stated that from August, 1987, opponents have totally imposed ban on entry of complainant into premises of abovementioned factories and refused to pay single penny out of profit to the complainant. In para. 5 of the application it was stated that now opponent No, 1 unauthorized, illegally and by violating terms and conditions settled in partnership agreement have become sole authority of Wasim Brothers Iron Works, and opponent No,2 of Premier Engineering Works Usmanabad. In para. 13 of the application it was stated that the opponents have violated terms and conditions of the partnership deed and have committed breach of peace and breach of trust by operating bank accounts without consent of the complainant. In para. 14 it was stated that the opponents have deprived the complainant from his legal and legitimate rights, capital, property and its profit. From the above facts it is clear that the possession was with the applicants and they were running the business. The respondent No,2 had already moved an application against the applicants and they were sent up under section 107/117, Cr.P.C. The applicants had also filed a civil suit before the order of the attachment was passed in which the possession was regulated by way of status quo order.
11. Moreover, the learned S.D.M. Has himself passed a final order on 17th July, 1988, which reads as- follows:- "The matter is already subjudice in the civil Court. The firm was partnership firm and the question of physical possession of the disputed premises by any of the parties is to be adequately determined by the civil Court. Action under section 107/117, Cr.P.C. Has since been taken against both the parties and is pending proceedings in this Court. The sealing of the premises has deprived the parties of their livelihood. I do not, therefore, consider sealing of the premises as imperative in the circumstances of the case. I order accordingly. The premises be desealed and possegsion handed over to the party who was in its possession before sealing of the premises."
12. ' In view of the above order passed by the S.D.M. It is not necessary to go into the discussion of the merits of the case but it will suffice to say that the proceedings were initiated mala fide and there were no grounds for the learned S.D.M. To pass order under section 145(1), Cr P C. And subsequent order under section 145(4).
13. ' With these observations the quashment application stands disposed of.
14. ' I have decided the above application on 8-8-1988 and these are the reasons for the same.