' LThis application made under section 561-A, Cr.P.C., raises an interesting question with regard to an order of attachment passed under second proviso to subsection (4) of section 145, Cr.P.C. By Assistant Commissioner and S.D.M. New Karachi.
2. Applicant Mst. Sarwari claims to have purchased Quarter No,33/21, Sector 5-G, North Karachi, from Mst. Khursheed Begum alias Mst. Malka, respondent No,2, through an agreement of sale.
Barkat Ali Qureshi, respondent No,3 was in occupation of this quarter who was allegedly dispossessed forcibly by Muhammad Qasim alias Bachu, husband of applicant and her two sons.
Barkat Ali Qureshi, respondent No,3, reported this matter to S.H.O. New Karachi Police Station who on 1-8-1988 filed report under section 145, Cr.P.C. Before Assistant Commissioner and S.D.M. New Karachi, who directed S.H.O., New Karachi Police Station on telephone to seal the disputed quarter, which was complied, with in the following words:-- ' NEW KARACHI POLICE STATION ' No, NK/OR/9006/88, ' Karachi dated 2-8-1988 ' The A.C. And S.D.M. New Karachi.
' Subject:---Proceedings under section 145. Cr.P.C.
' It is submitted that House No,31/21, Sector 5/G, New Karachi, as per instructions on telephone on 1- 8-1988, was sealed under ' section 145, Cr.P.C. On the same day.
' It is submitted for kind information.
(Sd.)
Station House Officer, New Karachi, Police station, Karachi.
' Copy submitted to the S.D.P.O North Karachi, for favour of information please."
3. It is in these circumstances, that the applicant has approached this Court for quashment of proceedings pending under section 145, Cr.P.C. Whereby she was deprived of the possession of disputed quarter.
4. I have heard Mrs. Salima Nasiruddin, learned counsel for applicant and Mst. Khursheed Begum alias Malka, respondent No,2 in person. Messrs Iftikhar Ali Advocate for respondent No,3 and G.R.
Warsi Advocate for State have preferred to remain absent.
5. The perusal of the record of the Court of S.D.M. New Karachi shows that the report under section 145, Cr.P.C. Submitted by S.H.O. New Karachi Police Station was recevied by S.D.M. On 1-8-1988, on which the following order was passed:-- "Issue attachment order under section 145(1), Cr.P.C."
' The endorsement on this report further shows that this report was sent back to S.H.O. New Karachi Police Station, why? Nobody kows. It was, however, resubmitted to S.D.M. New Karachi on 5-8-1988 vide No,9044, dated 5-8-1988. The record also shows that on the same day, vii. 1-8-1988, the learned S.D.M. Passed the following order:-- "IN THE COURT OF ASSISTANT COMMISSIONER AND S.D.M., New Karachi.
' No, A.C./SDM/NK/ /1988, dated ' ORDER UNDER SECTION 145(1), Cr.P.C.
' From the report of S.H.O., New Karachi, I am satisfied that there is likely to cause breach of peace exists on the concerning House No, 31/21 Sector 5-G, New Karachi, situated at Sector 5-G, New Karachi between the parties namely Barkat Ali (1st party) IInd party Muhammad Qasim and Mst.
Khursheed Bibi widow of A7eemuddin. I, therefore, call upon the parties named above to file their respective claims and appear in 'person before this Court on 2-8-1988 at 9-00 a.m.
' One copy of the order to be served upon each party and one copy of order to be pasted on the disputed house.
' Given under my hand and the seal of the Court this 1st day of August, 1988.
(Sd.)
(AHMED FAHIM MUGHAL)
Assistant Commissioner and S.D.M., New Karachi.
' Forwarded to S.H.O. New Karachi for compliance and report."
6. One order without number and date passed under section 145(4), Cr.P.C. Also 'finds place on the record of S.D.M., which is as follows:-- ' In the Court of Assistant Commissioner ' and S.D.M. New Karachi.
' No, AC/SDM/NK /1988, dated ORDER UNDER SECTION 145(4), Cr.P.C.
' Whereas the second party did not appear before this Court and it appears that there is imminent danger breach of peace on the disputed House No,31/21 Sector 5-G, New Karachi between the parties Barkat Ali 1st party and Muhammad Oasim and Mst. Khrusheed Bibi widow of Azeemuddin who had sold the above house to Barkat Ali.
I, therefore, order to seal the above-noted house under section 145 subsection (4), Cr.P.C. And report for the compliance to this Court upto 2nd August, 1988.
(Sd.)
(Ahmed Fahim Mughal)
Assistant Commissioner and S.D.M. New Karachi."
7. There is, however, no mention in the order-sheet dated 1-8-1988 about this order passed under section 145(4), Cr.P.C. It may be added that the order-sheets dated 1-8-1988, 9-8-1988 and 21-8- 1988, which contain several overwriting's and cuttings are not signed by the Magistrate.
8. The order passed under section 145(4), Cr.P.C. Again indicates that it was passed on the same day when the report under section 145, Cr.P.C. Was received from S.H.O. New Karachi. The second party which according to order-sheet dated 1-8-1988 was required to appear on 9-8-1988 was not expected to appear on 1-8-1988, and consequently it makes it clear that the attachment of the disputed quarter was made on a telephonic direction which was complied with by S.H.O., New Karachi Police Station under intimation to S.D.M. Sent through letter No,NK/OR/9006/88, dated 2-8- 1988, reproduced above.
9. There is no provision in the entire Code of Criminal Procedure, 1898, for passing a verbal order directing a particular S.H.O. To attach a residential quarter by throwing out its inmates. The learned Magistrate apart from not knowing what is contained in section 145, Cr.P.C. Did not choose to take up the book for trying to know what he did not know. He acted like a despotic ruler by directing S.H.O. New Karachi Police Station on telephone to attach the disputed quarter.
' He tried to cover up his illegal order by passing orders in writing at some subsequent stages but in that attempt also he failed.
10. For the aforesaid reasons, I would set aside the telephonic order passed under proviso two to subsection (4) of section 145, Cr.P.C. By learned Assistant Commissioner and S.D.M. New Karachi on 1-8-1988. The case is remanded to learned Magistrate with direction to restore the possession of the said quarter to the party from whom it was attached. However, if upon hearing the parties he considers that circumstances exist warranting the attachment of the disputed premises, he may pass a fresh order of attachment under second proviso to subsection (4) of section 145, Cr.P.C.
11. The application made under section 561-A, Cr.P.C. Is accepted in the above terms.