' The facts of the case which have occasioned this application filed under section 561-A, Cr.P.C. Lie within a narrow orbit and may be briefly indicated.
2. One Hashim Khan is in occupation of Plot No,1678, Bizerta Lines, Karachi, a Katchi Abadi. The Government of Pakistan has regularised this Abadi and consequently the Karachi Cantonment Board granted lease of this plot to said Hashim Khan which was being used as a residential and commercial unit. Dr. S.M. Shafqat, Director, Jinnah Post-Graduate Medical Centre, Karachi, claimed that this property belonged to Medical Centre and consequently he approached the Assistant Commissioner/S.D.M., Saddar, Karachi for obtaining possession. The learned S.D.M. Took law in his own hands and with the help of S.H.O. Saddar Police Station got Hashim Khan and others dispossessed from this property. It is alleged that on 26-9-1991 the applicants who are supporters of Khaista Khan, father of Hashim Khan were furious over his dispossession from the said premises and since there was apprehension of peace at their hands they were taken into custody by Abdul Majeed, S.I.P., Saddar Police Station who was on patrol duty. On 28-9-1991 all the applicants were sent up before Assistant Commissioner/S.D.M. Saddar, Karachi for an action under section 107, Cr.P.C. Who on the same day passed an order under section 112, Cr.P.C. Calling upon them to show cause as to why they should not be directed to enter into a bond in the sum of Rs,5,000 (Rs, five thousand) with one surety for maintaining peace. In the meantime Hashim Khan challenged the verbal order passed by Assistant Commissioner/S.D.M. Saddar, Karachi whereby he was dispossessed from Plot No,1678, Bizerta Lines, Karachi, before this Court in Criminal Miscellaneous No,408 of 1991, filed under section 561-A, Cr.P.C. This application was allowed by this Court on 1-12- 1991 with the following order:-- "Bearing in mind the scope of section 561-A, Cr.P.C. As laid down by the Supreme Court in the above-cited case, let us now examine the facts of the present case. The copy of registered lease deed which is placed on record shows that the applicant is the lessee of Plot No,1678, Bizerta Lines, Karachi, over which the premises in question is constructed. It is alleged by the applicant that the Assistant Commissioner/S.D.M. Saddar, Karachi, with the help of S.H.O. Saddar Police Station and other officials has got this premises sealed after dispossessing him from there. The learned S.D.M.
Has denied this fact when asked to explain it. He has even denied the pendency of proceedings under section 145, Cr.P.C. Against the applicant. According to the comments offered by him in writing there was only a case pending in this Court under section 107/151, Cr.P.C. He has specifically denied his presence at the time when the applicant was allegedly dispossessed and the premises in question was sealed. The report submitted by S.H.O. Saddar Police Station, however, makes it clear that the Assistant Commissioner/S.D.M. Saddar was present at the site on the relevant date and time. The Nazir of this Court who was deputed to inspect the site has also confirmed that the premises in question is still sealed. All these factors when combined together lend support to the allegation of the applicant that the said premises was sealed under the verbal orders of the S.D.M., who has now chosen to disown the same. This case is a good illustration of the way in which the Police Officers and the Magistrates are misusing their powers. In view of this attitude of a Sub- Divisional Magistrate and an incharge of a police station the applicant had no other remedy but to knock the doors of this Court by invoking its inherent jurisdiction and this Court is not denuded of its powers to quash a verbal order which was subsequently disowned by the Magistrate who had passed it, specially when it necessary to secure the ends of justice.
' I would, therefore, accept the application filed under section 561-A, Cr.P.C. Directing the Nazir of this Court to restore possession of the premises in question to applicant after unsealing it and making an inventory of the goods found therein. The applicant to deposit Rs,500 as fee of Nazir."
3. The applicants then moved an application under section 119, Cr.P.C. Seeking their discharge. The.
Learned S.D.M. After hearing this application referred it to S.H.O. Saddar Police Station for report if there was any apprehension of breach of peace. This order, dated 2-2-1992 is the subject-matter of the present application filed under section 561-A, Cr.P.C.
4. I have heard Mr. Muzaffar-ul-Haque, learned counsel for applicants and Mr. S.ZA. Qureshi, learned counsel for the State. The learned counsel for applicants has raised various points but eventually confined his arguments in main to the following contentions:--
(i) That Hashim Khan and others were the aggrieved persons who were dispossessed from their own premises illegally under the verbal directions of Assistant Commissioner and S.D.M. Saddar, Karachi, which order was subsequently quashed by this Court in Criminal Miscellaneous No,408 of 1991, and consequently the proceedings drawn against the persons wronged were void ab initio.
(ii) That the arrest of these applicants purported to have been made under section 151, Cr.P.C.
Without any emergency contemplated by this section was illegal, thereby rendering all subsequent proceedings as without jurisdiction.
(iii) That the learned S.D.M. Who initiated the action of illegal dispossession of applicants from their own premises was personally interested in the case and he was debarred from hearing the case within the meanings of section 556, Cr.P.C.
(iv) That there was no justification for the continuation of the proceedings against the applicants after the decision of this Court in Criminal Miscellaneous No,408 of 1991.
(v) That the learned S.D.M. Had no authority to refer the case to S.H.O. Saddar Police Station for report as to whether there was any apprehension of breach of peace and by doing so he has not only done injustice but has demonstrated in no uncertain terms for any one to see that injustice has 'undoubtedly and manifestly been done'."
5. On the first contention, there is a specific finding of this Court in Criminal Miscellaneous No,408 of 1991, wherein it was observed that the S.D.M. And S.H.O. Concerned has misused their powers by dispossessing the owner of the premises. I have no hesitation to add that such an action in the circumstances of the case was scandalous.
6. There is also ample authority for the view that a rightful act cannot be made the subject of proceedings under section 107, Cr.P.C. By resisting the attempt of illegal dispossession the applicants did not commit any wrongful act. In the case of Mst. Jasoda Lekhraj and others v.
Emperor reported in AIR 1939 Sindh 167, a Division Bench observed as follows:-- "Clearly the purpose of this section is to allow the law abiding to follow their lawful avocations in peace and to prevent the law-breakers from their committing wrongful acts."
7. This view was followed in H. Muhammad Abdul Qayyum and others v. Emperor reported in AIR 1939 Lah. 363 and Madho Singh and others v. Emperor, reported in AIR 1942 Pat.
331. In the last cited judgment it was made clear that for the application of section 107, Cr.P.C. It is essential that the acts committed or likely to be committed should be wrongful and the acts committed in lawful exercise of right of private defence do not fall under section 107, Cr.P.C.
8. Coming now to the second contention whether the arrest of these applicants was properly made, all that is said in the report submitted by S.H.O. Saddar Police Station, that the applicants were protesting against the illegal action of dispossession of Khaista Khan by Director, Jinnah Post- Graduate Medical Centre, Karachi, and in that process were inciting others. The object of section 151, Cr.P.C. Is to prevent the commission of a cognizable offence by arresting the person intending to commit such an offence, but an arrest made C without an emergency contemplated by this section is illegal. If any authority is needed the case of Ahmad and others v. The Crown reported in PLD 1954 Lah. 119, may be cited with advantage. No such situation existed in the present case and in fact the applicants were arrested to put pressure upon Khaista Khan and others (Applicants in Criminal Miscellaneous No,129 of 1992).
9. The third contention urged on behalf of applicants is equally forceful. The S.D.M. Who had taken law in his own hands had passed orders against the applicants under section 112, Cr.P.C. Which amounted to denial of justice. The well-stablished principle of natural justice is that no one can be a judge in his own cause. Section 556, Cr.P.C. Debars a Magistrate to try a case in which he is personally interested. The cognizance taken by learned S.D.M. In the above circumstances was, therefore, not legal.
10. The remaining two contentions are also well-founded. As indicated above a cruel wrong was done to Khaista Khan and others and they were in fact the aggrieved persons. By order dated 1-12- 1991 passed in Criminal Miscellaneous No,408 of 1991 this Court had got the possession restored to Hashim Khan. The likelihood of breach of peace, if any, therefore, came to an end. Again by calling a report from concerned S.H.O. About the merits of the case, the learned S.D.M. Has adopted a novel procedure. The learned Magistrate apart from not knowing what is contained in chapter of proceedings did not choose to refer the book for the purpose of trying to know what he did not know.
11. Mr. S.ZA. Qureshi, learned counsel for the State finding himself on the horns of a dilemma, conceded and I think rightly that the proceedings against the applicants are liable to be quashed. I would, therefore, accept the application filed under section 561-A, Cr.P.C. And quash the proceedings pending against the applicants under section 107/117/151, Cr.P.C. In the Court of Assistant Commissioner of S.D.M. Saddar, Karachi.