1. ' The Station House Officer, Police Station, Defence Society, Karachi laid information under section 145 Criminal Procedure Code before the Assistant Commissioner and Sub-Divisional Magistrate, Civil Lines Karachi regarding a dispute likely to cause breach of peace over possession of a house situated on Plot No,23 Mahmoodabad Road, Phase-I Defence Housing Society between Syed Abdul Rahim, Mst. Badar Rahim, Nadeem Rahim and Syed Jalal Rahim on one fpside and Col. (Retd.) G.M.
2. Nizamuddin Asif Nizam, Niamat Nizam, Amirzada and Haroon on the other side. The Sub-Divisional Magistrate, Saddar ordered to issue notice under section 145(1) of Criminal Procedure Code on 8- 6-1987. Pursuant to such notice both the parties put in their written statements. The first party, namely, Syed Abdul Rahim and others claimed that the disputed property was owned by Mst.
3. Badar Rahim who was in possession thereof as its rightful owner. It was, however, stated that on 10- 5-1987 Col. (Retd.) Nizamuddin, his son Asif Nizam, Niamat Khan, Amirzada and Haroon armed with weapons forcibly entered the house and occupied it by force and a First Information Report being No,142 of 1987, was lodged under section 448 read with section 14 of Islamic law of Offences Against the Property at Defence Police Station against them. It was, therefore, claimed that they be put in possession of the property in question and pending decision the property be sealed as the other party was misusing the property and damaging it.
4. ' The other party, namely, Col. (Retd.) G.M. Nizamuddin and others claimed that in fact Col. (Retd.)
5. Nizamuddin was the owner of the property in question while other side was merely a Benami holder thereof. The property was purchased by Col. (Retd.) Nizamuddin but as he was at that time Secretary of the Defence Housing Society, he purchased it in the name of TsA4. Badar Rahim who was the wife of real brother of his wife. According to theni, the plot was then divided into two plots and given Nos.23/1 and 23/2 and some constructions made on one portion (23/1). Second portion of the plot was given to the son of Mst. Badar Rahim to carry on a business of motor garrage due to sympathetic reasons. Mst. Badar Rahim in order to dishonestly claim the ownership of the plot in question lodged First Information Report No,142 of 1987 at. Defence Housing Authority Police Station.
6. All of them were granted bail before arrest by the Sessions Judge, Karachi (South). It was further stated that Lt.-Col. (Retd.) G.M. Nizarnuddin has also filed a civil suit bearing suit No,426 of 1987 in the High Court against Mst. Badar Rahim for specific performance, declaratiion and injunction which is pending. They had sought injunction in that suit restraining the defendants i.e, Mst. Badar Rahim from dispossessing them from the property as well. They also denied that they had in any manner forcibly dispossessed the other party as alleged in the First Information Report.
7. ' Both the parties alongwith their respective written statements filed certain documents as evidence to support their respective claims of ownership of the property in dispute.
8. ' It appears that on 30th August, 1988 the matter was fixed for hearing before the Sub-Divisional Magistrate Saddar, Karachi (South), when Syed Abdul Rahim and others moved an application against the other party complaining of criminal intimidation by them. When the matter was called, it seems that Mst. Badar Rahim and Col. (Retd.) Nizamuddin exchanged some arguments using hot words between them. This gave an indication to the Magistrate that tension prevailing between the parties was at a high pitch likely to cause eminent breach of peace. The Magistrate then passed an order and recorded his conclusions in the following terms: "But from the pleadings and the situation which was, created by the parties in my presence I am satisfied that imminent danger of breach of peace between the parties exists. I am also of the view that this case cannot be expeditiously disposed of unlss disputed premises is sealed. I, therefore, order that the premises No,23/B-1 which is presently in possession of Col. (Retd.) Nizamuddin and others be sealed under section 145(4), Cr.P.C. Immediately. The case is fixed for hearing on 7-9- 1988 when parties are directed to be present for evidence."
9. ' Being aggrieved by the order attaching the house in question the applicant has filed this application under section 561-A Criminal Procedure Code seeking quashment of the proceedings and the order referred to hereinabove.
10. ' Mr. I.A. Hashmi, Advocate for the applicant has contended that in absence of any evidence recorded in the proceedings to prove that it was a case of emergency the Sub-Divisional Magistrate was not competent to order attachment of the property under section 145(4) Criminal Procedure Code. According to him, the written statement filed by both the parties did not in any manner indicate that it was a case of emergency. He further contended that as the matter was sub judice before a competent Civil Court, a Sub-Divisional Magistrate could not deal with it under section 145 Criminal Procedure Code. In support of such contentions he has relied on cases reported in PLD 1979 SC 470 and PLD 1985 SC 204.
11. ' Mr. Abdul Hafeez Lakho, Advocate appearing for the respondents contended that the Civil Court has not as yet by any order regulated the possession of the property in dispute as such proceedings are competent. In support of his contentions he has relied on cases reported in 1988 Cr.LJ 2268.
12. ' It appears that neither of the parties approached the Civil Court to pass an order to regulate the possession of the property in dispute as an interim measure. In view of such a situation the two cases relied on by Mr. IA. Hashmi, Advocate for the applicant would have no application. At the same time it may be noted that there is no hard and fast rule that would bar the proceedings under section 145 of the Code of Criminal Procedure in every case where a breach of peace over possession of immovable property is likely to be caused on the ground of pendency of civil litigation. I am supported by my such a view by the case of Muhammad Ashraf v. The State and 3 others 1988 P Cr.LJ 2268 relied on by Mr. Abdul Hafeez Lakho, Advocate appearing for the respondents. In view of above the proceedings under section 145 of the Code of Criminal Procedure were competent in spite of pendency of the civil suit between the parties.
13. ' On examination of the record of the present proceedings before the Sub-Divisional Magistrate, I find that the Magistrate on receipt of information from the police initially passed the following order on 8-6-1987: "Issue notice under section 145(1), Cr.P.C."
14. ' On receipt of information under section 145, Criminal Procedure Code, a Sub- Divisional Magistrate is required by law to apply his mind to material placed before him to find out if a dispute likely to cause breach of peace exists in respect of such property. If he be so satisfied he can make an order in writing stating the grounds of his satisfaction and call upon the concerned parties to such dispute to put in their written statements in respect of their claims and fact of actual possession of the subject-matter within a time fixed by him. The order passed by the Sub-Divisional Magistrate reproduced above does not even indicate that he had in any way applied his judicial mind in the case. He has also not recorded any B reasons for initiation of such proceedings. The essential requirement for initiation of such proceedings as laid down in section 145(1) of the Code of Criminal Procedure have thus not been complied by him.
15. ' The Sub-Divisional Magistrate further passed an order under section 145(4) Criminal Procedure Code attaching the property in question. No doubt .The Magistrate is empowered by the second proviso to section 145(4) Criminal Procedure Code to attach the subject-matter of the proceedings at any time, if he considers the case be of emergency. Such order attaching the property in dispute was passed on 30th August, 1988. The Magistrate, it appears passed the order in question due to the situation that was created by the parties in his Court and further on the ground that the case could not be expeditiously disposed of unless property was sealed. Till passing of such an order the written statements of the parties were put in and found a part of the record but no evidence was recorded as the enquiry contemplated by subsection (4) of section 145 Criminal Procedure Code had not as yet commenced. The first party of Syed Abdul Rahim and others C had prayed for an interim order to seal the premises through their written statement on the ground that the other party was "unauthorisedly misusing the property and damaging it". Even a mere indication of existence of any emergency leading to breach of peace over its possession was not shown. As against it the other party in their written statement had clearly stated that they were in peaceful possession of the property and the first party was at no time dispossessed by them by force as alleged. Under such circumstances no material was on record to enable the Sub-Divisional Magistrate to treat it as a case of emergency and pass the orders contemplated by subsection (4) of section 145 Criminal Procedure Code. The second order thus also suffers from such an infirmity.
16. For the foregoing reasons, I am inclined to quash the orders passed by the Sub-Divisional Magistrate on 8th June, 1987 and on 30th August, 1988.
17. ' As the result of this order the information filed by the police shall be taken up by the Sub-Divisional Magistrate and be dealt with by him in accordance with law and the property attached shall be restored to the person or persons from whose possession it was so attached. In case any of the parties obtains any orders from the Civil Court regulating the possession of the property in disput,e, such orders shall always prevail over any order that may be passed by the Divisional Magistrate in the proceedings.
18. ' This application is accepted as indicated above.