' This is a petition under section 561-A, Cr.P.C. By Muhammad Latif and two others, petitioners Nos. 1 to 3 for quashment of the order of an Additional Sessions Judge of Faisalabad, dated 1-3-1982 ordering the disputed factory to be delivered to the respondents and for the quashment of the proceedings pending before a Magistrate of Faisalabad relating to the implementation of the said order.
2. The brief facts of the case are that on 25-11-1984, Abdul Razzaq, petitioner No,3, leased out land measuring 2 Kanals 2 Marlas 169 Sq.Ft. To one Riaz Alunad for a period of ten years for the purpose of building a facotry thereon. The rental fixed in the agreement was Rs,3,800 per annum. The first year's annual rent was paid by Riaz Ahmad in advance. On 11-8-1977, Riaz Ahmad, the lessee of the land, died in a car accident. Since the widow and the minor children, who were the legal representatives of Riaz Ahmad, deceased, were not in a position to set up the factory, it is stated that Fazal Haq and Javed Iqbal, respondents Nos. 1 and 2, father and brother respectively of Riaz deceased, set up the factory and they kept on paying the annual lease money to Abdul Razzaq, petitioner No,3, till 1981. It is alleged that on the night between 9/10-10-1982, Abdul Razzaq, petitioner No,3, the original owner of the land, alongwith Muhammad Latif and Riasat Ali, petitioners Nos. 1 and 2, forcibly took possession of the factory which was built on the leased land and ousted Fazal Haq and Javed Iqbal, respondents Nos.1 and 2, who were in possession thereof on behalf of the legal heirs of Raiz deceased. On 12-10-1982, Javed Iqbal, respondent No,2, filed an F.I.R. With Police Station Factory Area against the said three petitioners, which was recorded by the police under section 448/148/149, P.P.C. Since the respondents felt that other offences had also been committed by the petitioners, a private complaint was moved by them and accordingly, after much protracted litigation, the petitioners were summoned to face trial for offences under section 382/448/148/149, P.P.C. The main private complaint and the State case, I am given to understand, are still pending disposal. However, I need not labour on this aspect of the case, because this is not relevant for the purposes of this petition. What is relevant is that on 11-11-1982, the respondents also filed an application under section 145, Cr.P.C. On which, on 29-11-1982 the Magistrate passed an interim order attaching and sealing the factory. After recording the evidence of the parties, on 9-1-1984 the Magistrate dismissed the respondents' application under section 145, Cr.P.C. On the ground that no apprehension of any breach of peace existed. He accordingly directed the police to deliver possession of the disputed factory to the persons from whom they had taken possession. Being aggrieved by the said order, the respondents filed a revision petition which was accepted by an Additional Sessions Judge of Faisalabad on 1-3-1984, who, without disturbing the finding that no apprehension of any breach of peace existed, held that since the evidence disclosed that Fazal Haq and Javed Iqbal, respondents Nos.1 and 2, had been in possession of the factory till October, 1982, they were in possession thereof within two months next before the date of the Magistrate's final order and since they had been wrongfully dispossessed during that period, they were entitled to its possession under section 145(4), First Proviso, Cr.P.C. And that, therefore, he ordered that the disputed factory should be delivered to the respondents. Being aggrieved by the said order, the petitioners filed a quashment petition (Criminal Miscellaneous No, 66/Q of 1984) before this Court.
During the hearing of this main petition on 17-9-1984, the parties informed the Court that on 27-11- 1982 they had agreed to refer the dispute to the arbitration of three arbitrators and a document for referring the matter to arbitration had also been executed, but the proceedings could not commence before them. The parties, therefore, agreed before the learned Judge to refer the matter to arbitration and to abide by the said agreement, whereupon the learned Judge passed an order on 17-9-1984, which reads as follows:-- "During the hearing of this petition under section 561-A, Cr.P.C., I have asked the parties to arrive at a compromise. The parties to this case seem to be respectable persons belonging to business community from Faisalabad. I have been informed that on 27th November, 1982, the parties had agreed to refer the dispute to the arbitration of three arbitrators and a document for making the reference to the arbitration was also executed, but the proceedings did not commence before the arbitrators. The parties have now agreed before me to abide by the said agreement dated 27-11- 1982, according to which, the dispute is to be referred to three arbitrators, namely, Rana Sher Muhammad Khan, as nominee of Rana Muhammad Latif, Ch. Ghulam Qadir nominee of Javed Iqbal and Syed Nazar Hussain Shah, President, Chamber of Commerce, Faisalabad.
(2) Since the parties have now agreed before me for referring the dispute to the three arbitrators named above, I would, therefore, direct the parties to appear before the arbitrators within one week of the passing of this order. The arbitrators shall proceed in the matter expeditiously and shall make their award within one month.
(3) A certified copy of this order shall be supplied to the parties on payment of usual charges for apprising the learned arbitrators with regard to the fact that the parties have agreed in this Court for making reference of the dispute to the arbitrators. The case shall now be relisted, after the parties inform me about the award."
' It appears that the parties went to the arbitrators, but there being a dispute, the respondents filed a miscellaneous petition (Criminal Miscellaneous No, 653/M of 1984) under section 561-A, Cr.P.C.
Before this Court for the recall of the order of this Court dated 17-9-1984, with the further request to decide the main case on the merits. My learned brother who had passed the order on 17-9-1984, refused to deal with the case for personal reasons. This miscellaneous petition, together with the main quashment petition (Criminal Miscellaneous 66/Q of 1984), have been marked to me and are now before me for disposal.
3. On behalf of the respondents it is submitted that they were prepared to have the matter in dispute decided through arbitration, as agreed in this Court on 17-9-1984, but the petitioners adopted fraudulent tactics before the arbitrators by insisting that both the respondents should execute a new arbitration agreement, so that all the other cases pending inter se between the parties should also be decided by the said agreement, and that since this amounted to withdrawing all other criminal cases filed against the petitioners, which were not a part of the agreement entered into in this Court, the respondents could not permit the arbitrators to decide a matter not referred to them. It is also stated in the said petition that Syed Nazar Hussain Shah, Chairman, is under the influence of the petitioners and is openly siding with them and has also told the respondents that unless they agree to withdraw all the criminal cases against the petitioners, he would proceed to give an award against them. Relying upon Banwari Ram and another v.
Muhammad Yar Khan AIR 1941 All. 49, Jamunadas Kijriwala v. Hanuman Baksh Marwari AIR 1921 Cal. 637 and Hamidul Haq and others v. Sh. Ataet Hossain and others 37 IC 513, it is submitted that in proceedings under section 145, Cr.P.C. Neither the Magistrate nor this Court could have referred the matter to arbitration and that it is the duty of the Court to decide all matters arising out of an application under this section which power cannot be delegated by the Court. Relying upon Abdur Razaq v. Bahadur Khan and others 1974 SCMR 330, it is submitted that the Magistrate was duty bound to decide which of the parties had within two months next before the date of the final order passed under subsection (4) of section 145 of the Code of Criminal Procedure been forcibly and wrongful dispossessed, so as to treat the said party as if he had been in such possession on the said date, and that since the Magistrate had not so decided the matter, the learned Additional Sessions Judge had acted rightly in so determining the same and passed a proper order in that respect. Relying upon Zulfiqar Ali v. The State PLJ 1983 Cr.C. Lah. 407 it is submitted that this Court can under section 561-A, Cr.P.C. Recall its order of 17-9-1984, as there is no statutory bar in the Code that prevents it from doing so. In the alternative, it is submitted that if Criminal Miscellaneous No, 653/M of 1984 is not accepted, the order of the Additional Sessions Judge, dated 1-3-1984, being one passed in revisional jurisdiction, cannot be upset under the powers available to this Court under section 561-A, Cr.P.C. In this respect Sarwar Ali v. The State 1983 P Cr. L J 329 has been referred.
4. On behalf of the petitioners it is submitted that both the parties appeared before the three arbitrators, when all of them were asked to produce the arbitration agreement of 27-11-1982. Mr. Javed Iqbal, respondent No,2, informed the arbitrators that the said original agreement was on the record of some Court, whereas Muhammad Latif, petitioner No,1, produced a photostat copy of the same. This agreement was perused with the order passed by this Court by the three arbitrators. It was noted by the arbitrators that as the photostat copy produced showed the arbitration agreement between only two persons i,e, Muhammad Latif, petitioner No,1; on one side, and Javed Iqbal, respondent No,2, on the other, whereas the High Court had ordered arbitration between three petitioners and two respondents, hence it was unanimously decided by the arbitrators that the substance of the agreement of 27-11-1982 should be rewritten on a proper stamp paper of Rs,4 and should be signed by all the said persons, so that there was no dispute later about the reference before them. It is alleged that Ch. Ghulam Qadir, Advocate, arbitrator of the respondents, dictated the text of the new agreement from the photostat copy of the old and Rana Sher Muhammad, Advocate, arbitrator of the petitioners, signed the same and the former arbitrator took upon himself to buy the stamp paper for the said agreement and to have the said agreement engrossed thereon and to thereafter have it signed by the two respondents and then to hand over the same to Rana Sher Muhammad, the arbitrator of the petitioners, who was to get it signed by the three petitioners. On the next date, Javed Iqbal respondent No,2, informed the arbitrators that he had bought two stamp papers and would deliver the arbitration agreement with his and his father's signatures thereon, after consulting a lawyer at Lahore. The meeting of the arbitrators was adjourned to the next date. On that date, however, Ghulam Qadir, arbitrator of the respondents did not attend the meeting and informed Syed Nazar Hussain Shah on telephone that he had to go to the airport to receive some Hajis. The meeting was, therefore, adjourned to a date to be fixed after consultation with Ch. Ghulam Qadir arbitrator of the respondents. Ch. Ghulam Qadir, arbitrator of the respondent, did not turn up, with the result that no proceedings could take place at all. In these circumstances, the said Syed Nazar Hussain Shah and Rana Sher Muhammad, arbitrators, who met about a dozen times, had to adjourn the proceedings. It is submitted en behalf of the petitioners that the sum and substance of the final arbitration agreement, dated 27-11-1982 was not changed by them when the fresh draft was agreed to, though it is admitted that whereas there were initially two persons to the arbitration agreement, namely, Rana Muhammad Latif, petitioner No,1, on one side, and Javed Iqbal, respondent No,2 on the other, now there were Rana Muhammad Latif, Riasat Ali and Abdul Razzaq, petitioners Nos. 1 to 3, shown in the draft new agreement, of the one part, and Fazal Haq and Javed Iqbal, respondents Nos. 1 and 2 of the other part. On the factual aspects of the case, it is submitted that on 1-10-1982, Muhammad Raliq and Riasat Ali petitioners Nos. 1 and 2 purchased from Mst. Tasneem Anjum, widow of the late Riaz Ahmad, through an agreement for the sale which the said lady entered that day on behalf of herself and as mother and natural guardian for her minor children, the factory building and all other superstructures on the leased land for Rs,75,000' of which Rs,10,000 was paid as earnest money on that day and the balance of Rs,65,000 was to be paid at the time of the execution of the sale-deed. The receipt dated 10-10-1982 evidencing payment of the earnest money and the agreement for sale dated 1-10-1982 evidencing the purchase of the factory building and all superstructures on the leased land and transfer of possession thereof to petitioners Nos. 1 and 2 are stated to be Annexures 'B' and 'C' to the main petition. It is also urged that under the agreement for sale dated 10-10-1982, Mst. Tasneem Anjum surrendered the leased land also i,e, the site of the factory, to its owner, Abdul Razzaq, petitioner No,3, which fact also stands recorded in the agreement. It is further urged that as Muhammad Latif and Riasat Ali, petitioners Nos. 1 and 2 had earlier agreed with Abdur Razzaq, petitioner No,3, to purchase the site of the land where the factory originally stood, they on 10-10-1982 legally took possession of the factory and the land from the legal heirs of Riaz Ahmad, deceased, as virtual owners. It is contended that since Fazal Haq and .Laved Iqbal, respondents Nos. 1 and 2, did not get any amount from Mst. Tasneem Anjum, they not being in any way the legal heirs of Riaz Ahmad, deceased, they falsely contrived to file an F.I.R. Against the petitioners on 12-10-1982 in order to humiliate and h arass them. It is also urged that on 2-1-1983, Mst. Tasneem Anjum, for herself and as mother and natural guardian of her minor children, executed a sale-deed formally conveying the factory building and other superstructures on the leased land to Muhammad Latif and Riasat Ali, petitioners Nos. 1 and 2, which sale-deed was registered on 13-1-1983. In these circumstances, it is submitted that the respondents have no case in equity against the petitioners and that is why they are avoiding to have the matter decided by the arbitrators. Relying upon Mohin Chandra Guha v. Annada Charan Dutt 6 CWN 109 and Taramoni Chaudhurani v. Gyanedra Mohan Chaudhri and others 7 CWN 461, it is submitted that where the parties themselves have agreed to have their dispute referred to arbitration, a Magistrate can deliver possession of the disputed property under section 145, Cr.P.C. To the person named by the arbitrators. Relying upon Gangadhara v. Balkishna and others 31 Cr. L J 191, it is submitted that where no dispute involving any apprehension of breach of peace is found, Magistrate is bound to drop the, proceedings and to order delivery of the disputed property to the person from whom alone it was seized. Relying upon Aslam Pervaiz v. The State PLD 1984 Lah. 204, it is submitted that this Court, under the power vested in it under section 561-A, Cr.P.C. Cannot revoke or recall the earlier order dated 17-9-1984, if its effect would be to review or bring about any material change in the said order.
5. I have heard the arguments of the learned counsel for the petitioners and the respondents and have also perused the record. First, I will take up the miscellaneous petition (Criminal Miscellaneous No, 653/M of 1984) filed under section 561, Cr.P.C. By the respondents for the recall of the order of this Court, dated 17-9-1984. The dispute between the parties is as regards the terms of their agreement to refer the matter to arbitration, as recorded by this Court on 17-9-1984. The learned Single Judge who recorded the said order, has, for certain personal reasons, refused to hear the case and I am, therefore, saddled with the onerous duty of interpreting an order of which I am not the author, but which, I must figuratively treat and interpret as my own. According to the petitioners, the order of 17-9-1984 has the effect of binding all the three petitioners, on one side, and the two respondents, on the other, to have their dispute or disputes, as referred to in the earlier arbitration agreement, dated 27-11-1982, referred to the three arbitrators named in the order.
According to the respondents, however, the order has the effect of binding only Muhammad Latif, petitioner No,1, on one side, and Javed Iqbal, respondent No,2, on the other, to have their dispute or disputes, as referred to in their earlier arbitration agreement dated 27-1-1982, referred to the three arbitrators named in the order. The order of this Court dated 17-9-1984 is not clear, but somewhat vague. It first refers to the fact that on 27-11-1982 'the parties had agreed' to refer their dispute to the arbitration of three arbitrators, regarding which a document was also executed. In fact, all the parties had not agreed to this earlier agreement, but only one of the three petitioners, namely, Muhammad Latif, and one of the two respondents, namely, Javed Iqbal, had agreed to refer their dispute to arbitration. The order then states that 'the parties have now agreed' to abide by the earlier arbitration agreement dated 27-11-1982, according to which their 'dispute is to be referred to three arbitrators, namely, Rana Sher Muhammad Khan, as nominee of Rana Muhammad Latif, Ch. Ghulam Qadir, nominee of Javed Iqbal, and Syed Nazar Hussain Shah, President, Chambers of Commerce, Faisalabad'. If all the parties had agreed to abide by the earlier agreement of 27-11- 1982, the reference to Rana Sher Muhammad Khan as being only the nominee of one of the three petitioners and to Ch. Ghulam Qadir as being only the nominee of one of the two respondents, is misleading. The order, therefore, suffers from an inherent defect, in that though it binds all the persons who are parties to the present case before me to abide by the terms of reference of an earlier arbitration agreement dated 27-11-1982, the enumeration of Rana Sher Muhammad Khan, Advocate, as the nominee of Rana Muhammad Latif, petitioner No,1 alone, and that of Ch. Ghulam Qadir, Advocate, as nominee of Javed Iqbal, respondent No,2 alone, gives the impression that no arbitrators have been nominated to represent the interest of the others. There is thus a serious flaw in the order, which renders the meaning and intent highly vague and uncertain. The disputant parties are even not ad idem about the terms. With profound respect, therefore, I must say that the order of 17-9-1984 suffers from an inherent defect, which affects its credibility and that the same being void for uncertaintly, in view of section 29 of the Contract Act, 1872, it is necessary in the interest of justice and to prevent an abuse of the process of this Court, to recall the same, under the power vested in me under section 561-A, Cr.P.C. If this is not done, the parties would be placed at the mercy of costly and protracted litigation, disputing over an order of this Court which basically suffers from an inherent vice.
6. This matter can also be examined from another angle. The last order of the learned Additional Sessions Judge which is being impugned before this Court is that dated 1-3-1984, whereby the learned Additional Sessions Judge, without disturbing the finding of the trial Magistrate that there was no dispute between the parties giving rise to any apprehension of a breach of the peace, ordered the disputed factory to be delivered to the respondents, with the direction to the Magistrate to implement the said order. Earlier, as I recall, the Magistrate had dismissed the petition of the respondents filed under section 145, Cr.P.C. On the ground that there was no dispute between the parties giving rise to any apprehension of a breach of the peace. The main quashment petition filed by the petitioners was admitted by this Court to go into the legal question whether, in the circumstances of the admitted position before the two lower Courts, namely, that there was no dispute between the parties giving rise to any apprehension of a breach of the peace, the learned Additional Sessions Judge could have gone into the merits of the case and directed the Magistrate to deliver the disputed factory to the respondents, on the basis that they were to be deemed in possession by virtue of the First Proviso to subsection (4) of section 145 of the Code of Criminal Procedure. This question being purely a legal question before this Court, which under the law it alone must decide, the reference of the dispute between the parties to arbitration seems out of place. Assuming, for the sake of argument, that the law does not stand in the way of the disputant parties resolving through arbitration as to which of them should be delivered back the disputed property, once the proceedings have been dropped under section 145(5), Cr.P.C. This Court should only have passed a consequential order placing the disputed property.In the custody of a receiver, pending the decision of the arbitrators, and should have wound up the revision petition. Keeping the petition pending, to await the result of the arbitration, only indicates that my learned predecessor considered that the arbitrator's award would not be conclusive, but would he treated as a relevant piece of evidence to persuade the Court to act on it. Perhaps, my learned predecessor also felt that in case the arbitrators' award was set aside, he would have to, in any case, decide this matter. Considering that I have already held that the order of this Court, dated 17- 9-1984 suffers from an inherent defect, it is my duty to prevent the parties from being locked in protracted and fruitless litigation.
7. In view of my findings given in paras. 5 and 6 above, I feel constrained to recall this Court's order dated 17-9-1984. The order referring the dispute to arbitration in the instant case is not in keeping with the intent behind section 145, Cr.P.0 which places a duty on the Court to decide the matter.
Since the said order, as I have pointed out above, suffers from inherent vice and is void for uncertainty, I hereby recall the same, as otherwise it would lead to an abuse of the process of the Court and to fruitless and protracted litigation.
8. Having disposed of the above miscellaneous petition, I now turn to the main quashment petition.
It is conceded on both sides that both the Courts below dealt with the case on the basis that no apprehension of breach of peace existed. Neither of the learned counsel for the opposing parties has assailed this position before me. On behalf of the petitioners, it is submitted that once apprehension of breach of peace is not found to have existed when the preliminary order was passed, the Magistrate is duty bound under the law to drop the proceedings under section 145(5), Cr.P.C. And to pass further consequential orders, such as to dispose of the attachment previously ordered. On behalf of the respondents, it is submitted that even if apprehension of breach of piece is not found to have existed when the preliminary order was passed, the Magistrate is duty bound to go into the evidence, to decide, on the basis of the evidence already adduced, as to which of the parties was on the date when the order under section 145(1), Cr.P.C. Was passed in such possession and that if it appeared to him that any party had within two months next before the date of such order been forcibly and wrongfully dispossessed, to treat the party so dispossessed as if he had been in possession on such date and to pass an order accordingly directing the disputed property to be delivered to him. In my estimation the contention of the learned counsel for the petitioners is correct. The object of section 145, Cr.P.C. Is to prevent disturbance to the public tranquillity and to protect the realm from riots and civil commotions, in cases where disputes over property are likely to cause breach of the peace. Where dispossession of property is not accompanied with any apprehension of breach of peace, the proper remedy is an action for criminal trespass, where the Magistrate can also restore to the aggrieved party the property from which he was dispossessed, under section 522, Cr.P.C. Or an action for possession in a civil Court. It is only where breach of the peace is likely or apprehended that action under section 145, Cr.P.C. Becomes permissible. If, after receiving statements of the parties and receiving all such evidence as may be adduced by them, a Magistrate considers that a dispute likely to cause a breach of the peace existed when he passed his initial order under section 145(1), Cr.P.C. Calling upon the parties to file their statements of the case, he is duty bound to go into the question as to which of the parties was on that date in possession of the disputed property and if it appears to the Magistrate that any party had within two months next before the date of such order been forcibly dispossessed, to treat the said party so dispossessed as if he had been in possession on such date. But where the Magistrate finds that there was no such dispute when he called upon the parties to submit their statements of the case, he has no jurisdiction to further decide under section 145(4), Cr.P.C. The question as to which party was in possession, for he can only drop the proceedings under section 145(5), Cr.P.C. And to pass such consequential order in order to restore status quo ante. In passing such a consequential order, if a Magistrate has material on the record before him to show that the property in question was in possession of a particular party from whose possession it had been attached by the police, he shall be duty bound to pass an order to restore status quo ante, but if there is no such material, he has no jurisdiction to take evidence in order to decide the matter, but should place the property in the hands of a receiver, till the parties produce an order of a Court deciding their entitlement. If any authority is required for this view, Ram Lal Singh v. The State AIR 1955 All. 46 and B.D. Naidu v.
Shamsheer Jang AIR 1957 Mys. 20 and Ghulam Ahmad v. Abdul Rahman PLD 1957 Kar. 214 may be referred. Since in the instant case the Magistrate dismissed the repsondents' application on the ground that there was no dispute likely to cause a breach of the peace, he was legally correct in dropping the proceedings and passing the consequential order directing the police to deliver possession of the disputed factory to the persons from whom they had taken its possession. The evidence on the record shows that the petitioners had dispossessed the respondents on 9-10-1982 and were in possession of the factory when the police attached the same on 29-11-1982. The order of the Magistrate was, therefore, both legal and proper. The learned Additional Sessions Judge acted contrary to law in deciding the question of possession under the first proviso to section 145(4), Cr.P.C. In respect of a case where the Magistrate had dropped the proceedings under section 145(5), Cr.P.C. The order of the learned Additional Sessions Judge dated 1-3-1984 ordering the disputed factory to be delivered to the respondents is, therefore, illegal and deserves to be set aside, to secure the ends of justice.
9. For the foregoing reasons, this petition is accepted and the order of the learned Additional Sessions Judge of Faisalabad dated 1-3-1984 ordering the disputed factory to be delivered to the respondents, is hereby quashed. The order of the Magistrate is proper and shall stand.