QAISAR AHMAD HAMIDI, J.- -Both these applications filed under section 561-A, Cr.P.C., are interconnected, hence for the sake of convenience they are being disposed of together.
Muhammad Abid, the applicant in Cr. Misc. No.513 of 1991, is son of late Muhammad Yousuf, brother of Muhammad Ahmad, the respondent No.2 Mst. Gulzar Begum, the applicant in Cr. Misc.No.9 of 1992, is widow of late Muhammad Yousuf, brother of Muhammad Ahmad, the respondent No.2, and mother of Muhammad Abid, the applicant in Cr. Misc.No.513 of 1991. Muhammad Ahmad, the- respondent No.2 claims to be a tenant of Farook Minocher Joshi Godrez in respect of a bungalow bearing No.5/18, Parsi Colony, M.AJinnah Road, Karachi, having obtained the same through, an agreement of tenancy dated 24,9.1985, by which he was permitted to sublet a portion thereof to any one of his choice. He, therefore, sublet a portion of this bungalow situated on ground floor (a room measuring 12'x12' and lawn measuring 2,000 sq. Feet) to applicant Muhammad Abid (Cr.
Misc.No.513 of 1991), through an agreement dated 1.12.1985, which is being used as a show-room for cats, etc. Under the name and style of M/s. Star Automobiles. It is the case of respondent No.2 that the first floor of this bungalow remained all along in his possession till 14.11.1991, when taking the advantage of his serious illness the applicant turned him out from there. On-17.11.1991 the respondent No.2 filed an application against applicant Muhammad Abid (Cr. Misc.No.513 of 1991) in the Court of Assistant Commissioner and S.D.M. Jamshed Quarters, Karachi, for taking an action under section 145, Cr.P.C. The learned Magistrate took cognizance and passed a preliminary order under sub-section (1) of section 145, Cr.P.C, directing the parties to appear before him on 25.11.1991 at 10 A.M. On the same day viz, 17.11.1991 the learned Magistrate passed an order of attachment under second proviso to sub-section(4) of section 145, Cr.P.C, in the following terms:- "From the perusal of the complaint and the record produced and also the statement of the applicant it is clear that there is a grave and imminent danger of breach of peace between the parties above named over the possession of Bungalow No.5/18, Parsi Colony, MA Jinnah Road, Soldier Bazar Karachi-East, aq$l I am satisfied that if immediate preventive measures are not taken it may result in loss of life and property.
Since the matter is of emergency, I hereby direct the SHO Soldier Bazar Police Station', Karachi-East to immediately attach and seal the Bungalow No.5/18, Parsi Colony, MA. Jinnah Road, Soldier Bazar, Karachi-East forthwith, pending judicial enquiry in this Court regarding dispute of the possession.
The SHO Soldier Bazar P.S. Is further directed to immediately comply with the directions and report compliance.
3. Since the portion of bungalow which is being used by applicant as show-room of M/s. Star Automobiles, was also attached the applicant made an application under sub-section(5) of section 145, Cr.P.C, which was heard and disposed of by learned Magistrate vide order dated 21.11.1991, the operative part of which reads as follows:- "From the facts brought forward by the 2nd party it is very clear that the said premises is not a purely residential bungalow as stated by 1st Party instead it also has a commercial fragment under the name of Star Automobiles. Sealing proceedings report of Police Station ____ Soldier Bazar authorities has also confirmed that on the said premises there is a Car Show-room as well under the name of Star Automobiles. From this it prima facie appears that 1st party has concealed some facts as regards the said premises. Further more Income Tax Department documents produced before this Court show that the said disputed premises arc being run in Commercial business > by the 2nd party.
In view of all these facts, I therefore, order that the premises in question i.e. 5/18, Parsi Colony,. MA.
Jinnah Road, Soldier IC./at , Karachi-East be dc-scaled u/s, 145(v), Cr.P.C, forthwith and handed over to the parly from whom it was taken at the time of sealing. Further more parties are directed to file their written statements on 25.11.1991 as ordered before."
4. The case was then fixed before the Magistrate on-25.11.1991. When he again passed an order of attachment under second proviso to sub-section (4) of section 145, Cr.P.C., directing, the S.H.O.
Soldier Bazar P.S to seal the entire bungalow, for1 the following reasons:- "(1) Perused the record and the applications dated 24th November, 1991 and 25th November, 1991 submitted by the 1st Parly as regards threats to kill him and mentioning therein events reflecting serious breach of peace at the hands of 2nd Parly over possession and ownership of property No.5/18, Parsi Colony, M.A. Jinnah Road, Soldier Bazar, Karachi-East.
(2) Parties present and heard at length. On 17.11.1991 an order u/s. 145(1V), Cr.P.C, was passed in which the said disputed Bungalow No.5/18, Parsi Colony, M.A. Jinnah Road, Soldier Bazar, Karachi- East was directed to be scaled, but, after receipt of Police Sealing Proceedings sent to this Court vide P.S. Soldiet Bazar No.SOR/8397, dated 18.11.1991- it revealed that the said plot houses not only a bungalow, but, also a show-room in the name of Star Automobiles which was also scaled during the said proceedings. On this 2nd Party moved an emergency application on 19.11.1991 and an application u/s. 145(v), Cr.P.C, on 20.14.1991 mentioning therein that commercial premises on the said plot had also been sealed alongwith the said bungalow. On this both the parties were called on 21.11.1991 and alter hearing them, an order u/s, I45(v) Cr.P.C. who passed on 2I.I 1.1991 and the said premises were descaled thereby affording a final chance to the parlies to settle their differences as both the parlies \\e I e lound to be real blood relations. Furthermore parlies were also directed to file their written statements on 25.11.1991. Now instead of filing their written statements the parties have started arguing the title of the said property which is outside the provisions of Section 145, Cr.P.C.
(3) During the hearing of the case parlies started exchanging hot words and threatening each other of dire consequences, and also claiming possession and ownership of-the said two pails of the. Same plot i.e. Residential part and commercial part in the name of Star Automobiles on the same plot bearing No.5/18, Parsi Colony, M.A. Jinnah Road, Soldier Bazar, Karachi-East. Both the parties were sternly warned to refrain from such indecent and illegal acts and utterances.
(4) This Court is now fully convinced-that both the parties are likely to cause very serious breach of peace as regards title and possession of the said disputed premises and this Court is also satisfied from the present emergency situation that there is every possibility of clash and loss of life and property. I, therefore, order that the whole disputed premises over Plot No.5/18, Parsi Colony, MA.
Jinnah Road, Soldier Bazar, Karachi East including the residential as well as commercial part of the said plot be immediately sealed and the# SHO Soldier Bazar Police Station should comply this order at once.
I further order that the parties may approach the competent Civil Court for deciding the titleship/ownership of the said disputed premises. In the-meantime the premises in question would remain sealed, so as to pre-empt any loss of life or property, till receipt of any further orders from the competent Civil Court."
5. It is in these circumstances that applicant Muhammad Abid (Cr. Misc.No.513 of 1991) invoked the inherent jurisdiction of this Court seeking the quashment of proceedings pending against him in the Court of Assistant Commissioner and S.D.M. Jamshed Quarters, Karachi, under section 145, Cr.P.C.
6. During the pendency of these proceedings a consent order was passed by this Court on 22.12.1991, thereby amending the order of attachment passed by learned Magistrate in the following terms:- "1 & 2. During the course of arguments it was agreed by the counsel for the parties that as an interim meassure the portion of the premises shown in para 3 of the application made under section 145, Cr.P.C., be resealed as the same is not the subject-matter of the proceedings, pending under section 145, Cr.P.C, between the parties, out of which this criminal miscellaneous application has arisen, which for the sake ~ of convenience is reproduced below:- That later on the applicant sublet the portion of the said premises (Room admeasuring T2 x '12 and lawn admeasuring 2,000 sq. Ft.) to the opponent after execution of proper tenancy agreement on 1st December, 1985, Photo-stat copy of the tenancy agreement is attached and marked as Annex- B.
In view of this joint statement the order of the attachment dated 25.11.1991 passed by learned S.D.M.
Jamshed Quarters, Karachi, is amended and the S.H.O. Soldier Bazar P.S is directed to hand over the possession of te above premises, which according to the learned counsel for applicant, is being used as show-room of 'M/s. Star Automobiles' to applicant after making necessary inventory in presence of respectable witnesses.
The main petition alongwith miscellaneous application shall remain pending and they will be disposed of on their own merits after winter holidays and if any of the parties intend to move any application concerning this petition they are at liberty to move the same even during the vacations. Adjourned to 16.1.1992 for final arguments.
7. On 4.1.1992 Mst. Gulzar Begum, the applicant in Cr. Misc.No.9 of 1992 filed an Application under section 561-A, Cr.P.C, before this Court with the following prayer:- "It is, therefore, humbly prayed that the Hon'ble Court, in the 'circumstances and facts mentioned herein above, and on discovery upon the report of the Commissioner, will be pleased to quash the order of Respondent No.1\ and hold the same as illegal and without jurisdiction and in consequence thereof will further be pleased to order the descaling of the premises with direction to hand over the possession of the 1st floor to the Petitioner and/or pass any further order or orders conducive to the dispensation of justice."
8. I have heard learned counsel for the respective parties and Mrs. Navin Merchant, learned counsel for the State, who has contended that the learned Magistrate on making an order under sub- section(5) of section 145, Cr.P.C, on 21.11.1991 had become "functus officio" and thereafter had no jurisdiction to pass a. Fresh order under second proviso to sub-section (4) of section 145, Cr.P.C. She has placed reliance upon my own judgment reported as Mst. Khalida Rahman and 2 others vs. Muhammad Aqil and another (1990 M LD 60).
9. The learned counsel for applicant Muhammad Abid (Cr. Misc.No.513 of 1991) who appeared before me referred to several points but eventually confined their arguments in the main to the following contentions;-
(i) That the jurisdiction of a Magistrate under section 145, Cr.P.C, is dependent upon the likelihood of a breach of peace between the parties, and since this important ingredient was lacking, the learned Magistrate was not competent to pass a preliminary order in terms of sub-section (1) of section 145; Cr.P.C.
(it) That there was no emergency within the meaning of second proviso to sub-section (4) of section 145, Cr.P.C, and consequently there was no justification for the Magistrate to take this extraordinary measure.
(iii) That the Magistrate on making an order under sub-section (5) of section 145, Cr.P.C had become "functus officio" and thereafter he had no jurisdiction to pass an order under second proviso to, subsection (4) of section 145, Cr.P.C.
10. As regards the first contention, the learned counsel for applicant have very little to say. Para 7 of the application filed by respondent No.2 against the applicant on 17.11.1991 before Assistant Commissioner and S.D.M. Jamshed Quarters, Karachi, is self-explanatory, which is reproduced below: - "That on 14.11.1991,1 felt myself a bit healthy and decided to visit the said premises, on my reaching there I was flabergasted to see that the doors of my room were changed and the locks fixed were also new and of course the opponent had done all this. When I enquired the opponent about all this mess, he instead of giving me proper and satisfactory reply bursted in anger and started abusing me and threatened me of dire consequences and flatly and shamelessly told me that from now onward this premises will be mine for good and if I (the applicant) try to knock at the door of law and justice he (the opponent) would kill me, in the meantime I observed that the opponent was accompanied with goonda type of elements and in the end they turned me out of the premises in question, and being a heart-patient, old and feeble man I could not resist them and returned from the premises in order to lodge complaint against the opponent and his accomplices at Police Station Soldier Bazar, but the police did not pay heed to my complaint and grievances and refused to lodge the complaint against the opponent above named."
11. Section 145, Cr.P.C,^deals with the procedure where 'dispute concerning land etc. Is likely to cause a breach of peace. It is in fact a stop gap arrangement and the Magistrate is concerned to maintain "status quo" till the rights of concerned parties are decided by a competent. Civil Court. As observed by the Supreme Court in the case of M.S. Khawaja vs. The State, reported in PLD 1965 S.C.287," to quash a judicial proceeding in order to "secure the ends of justice" would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an ' abuse", it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results".
12. This view was reiterated by the Supreme Court in the case of Ghulam Muhammad vs. Muzammal Khan and 4 others, reported in PLD 1967 S.C. 317, wherein it was observed:- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not he so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed....."
13. The evidence available, on record of this case shows that there was imminent danger of breach of peace between the parlies, which position is reflected in the order dated 17.11.1991 passed under sub-section (1) of section 145 Cr.P.C, in the following words:- "Whereas a complaint u/s. 145, Cr.P.C, has been received and from the perusal of it, it appears that a dispute is likely to induce breach of peace between the parties above named over the possession of the Bungalow No.5/18, Parsi Colony, M.A Jinnah Road, Soldier Bazar, Karachi-East and I am satisfied that there is very much apprehension of breach of peace exists over the disputed premises and the said premises comes under the area of Soldier Bazar P.S. Which falls with the jurisdiction of this Court."
14. There is, therefore, an air of utter unreality about the first contention raised on behalf of applicant.
15. Coming now to the second contention about the non-existence of emergency within the meaning of second proviso to sub-section (4) of section 145, Cr.P.C, all that is slated on behalf of applicant is that the respondent No.2 did not reside on the first floor of the bungalow and consequently there was no occasion for the attachment of the property. The question of possessio in respect of the first floor of the said bungalow is yet to be decided. The case of Prem Kaur and another vs. Banarsi Das, reported in AIR 1933 Lahore 409, is a relevant case on this point, wherein it was observed:- "As regards the necessity of attachment, the Magistrate considered the case to be one of emergency, the matter was one within his discretion and the action taken by him for maintenance of peace cannot be lightly interfered with."
16. The perusal of the record, however, shows that there was no dispute between the parties over possession of a room measuring 12', x 12' and lawn measuring 2,000 sq. Feet situated on the ground floor of the bungalow where the applicant has opened a show-room by name "M/s. Star Automobiles" and it was obviously for this reason that the learned Magistrate had got it descaled by an Aider passed on 21.11.1991. The learned Magistrate has, therefore, gone wrong in sealing it again. On 22.12.1991 the impugned order was amended by this Court' with the consent of the parlies, the details of which find place in para 6 ante. The impugned order, therefore, cannot be sustained to this extent.
17. * The third ground raised is that, having once passed the order under sub-section (5) of section 145, Cr.P.C, on 21.11.1991, the learned Magistrate could not pass the impugned order on 25.11.1991, under second proviso to sub-section (4) of section 145, Cr.P.C. At first sight the argument appears to be attractive, and at one time I felt inclined to accept it but on a careful examination of the order dated 21.11.1991,1 have changed my view, this order purported to have been passed under sub- section (5) of section 145, Cr.P.C, is in fact not an order for the cancellation of the preliminary order, which was not touched by the learned Magistrate who directed the parties to file their written statements on 25.11.1991 as ordered before. The rule laid down by this Court in the case of Mst.
Kha/ida Rehman and 2 others vs. Muhammad Aqil and another, reported in 1990 MLD oi), is, therefore, not attached to the facts of the present case, It may be noted that the powers to pass an order includes the power to rescind it.. '
18. The doctrine of "res judicata" is again unknown to a criminal proceeding. The principle under lying section 403, Cr.P.C* which embodies the maxim NEMO DEBTS BIS VEKARI PRO EADEM CAUSA, does not rest on this doctrine but on grounds of public policy. A second criminal revision application or a second criminal bail application is not barred under law, although there should be fresh material to justify it. The learned Magistrate who passed the impugned order has assigned reasons in support thereof. This order is again discretionary and should not be disturbed lightly.
19. In the result, subject to the modification of the impugned order referred to in para 6 ante, both the applications filed under section 561-A, Cr.P.C, are dismissed. The Assistant Commissioner and S.D.M. Jamshed Quarters. Karachi, is, however, directed to decide the main application filed under section 145, Cr.P.C, within three months from the receipt of this judgment, the first floor of bungalow No.5/18, Parsi Colony, M.A. Jinnah Road, Karachi, shall remain under attachment till the decision of this case by the Magistrate.
20 .It is needless to observe that the use of word exists' in sub-section (5) of section 145, Cr.P.C, endnotes that the dispute between the parties must continue and if at any stage of the case the Magistrate is satisfied that there is no danger of breach of peace he may drop the proceedings under sub-section (5) of section 145, Cr.P.C, after affording an opportunity of hearing to both the parties.
21. As a necessary corollary to the above finding M.A. No.1830 of 1991, M.A. No.24 of 1992, M.A. No.88 of 1992, M.A. No.234 of 1992 and M.A. No.738 of 1992, filed in cr.Misc. No.513 of 1991, and M.A. No.17 of 1992, filed in Cr. Misc, No.9 of 1992, are dismissed.