1. DORAB PATEL, J.-The dispute in this petition for leave relates to a room in a building on Raza Shah Pehalvi Road, Rawalpindi owned by the second petitioner. This room had been leased to one Mr. S. M. H. Abbasi, Advocate, who was using it for his office. He died in July, 1975 and the first respondent, Mr. T. H. Abbasi, claims that as he was working with Mr. Abbasi, deceased, he had become the tenant of the room in dispute after Mr. S. M. H. Abbasi's death. This has led to litigation between him and the legal heirs of Mr. Abbasi, deceased, which is pending in the civil Courts but, according to the petitioners, this litigation is collusive. Further, according to them, the room in dispute had remained shut after Mr. Abbasi's death in July, 1975, and at some period in that year, which is conveniently not specified, heavy rains had damaged the roof of this room so that it had become dangerous. Therefore, the second petitioner, who resided in this building wanted to carry out the necessary repairs, but as the room was locked, he reported the matter to the Ilaqa Magistrate. The Ilaqa Magistrate in turn referred the matter to the police who, after examining what are described as respectable persons of the locality, submitted a report, and on that report the Ilaqa Magistrate passed an order on the 20th March, 1976. The order reads; "I have gone through the police report and the statement record--ed by the police. According to the report Mr. S. M. Hussain Abbasi had died and is just abandoned. The S. H. O. Is directed to open the lock in his presence and prepare the inventory of articles lying in the once and hand over the possession to his rightful claimant and inform the Court accordingly."
2. The further claim of the second petitioner is that he took over possession of the room in dispute in consequence of this order, carried out repairs to the room and then leased it out to the first petitioner. As the order did not autho--rise the police to hand over the room to the second petitioner, it is not possi--'be to understand how without any enquiry the police delivered the possession of the room to him. Be that as it may, it was not surprising that the first respondent challenged this order of 20-3-1976 in the Lahore High Court in an application under section 561-A of the Criminal Procedure Code. The contention of the first respondent was the very obvious one that the: claim of the second petitioner was of a civil nature, and that this petitioner had abused the provision of the criminal law to recover possession of his property in order to relet it. The second petitioner opposed this application, which was allowed by a learned Single Judge of the High Court by his order ,:dated 23-4-1976. Hence this petition for leave.
3. The second petitioner raised two contentions in the Lahore High Court, .One of which was that the impugned order had been passed because the roof of the room in dispute needed repairs and in the absence of repairs it consti--tuted a public nuisance under section 133 of the Criminal Procedure Code. The learned Single Judge has repelled this plea because the Ilaqa Magistrate .Did not attempt to follow the provisions of Chapter X of the Code. Not only was Mr. Shaukat Ali not able to refer us to any steps taken by the Magistrate under Chapter X of the Code, but he was also not able to show --how the need of repairs to a room in a building constituted a public nuisance within the meaning of section 133 of the code. He merely referred us to photographs of the room, but it is clear from the photographs that even if the roof had fallen, it would have fallen into the room which, according to the petitioners, was not occupied by anyone because it had been kept locked, therefore, the alleged state of the roof could not possibly constitute a public nuisance and no exception can be taken to the view of the learned Single Judge.
4. However, Mr. Shaukat Ali's main reliance was on section 25 of the Punjab Police Act, 1861 which reads:--- "It shall be the duty of every police officer to take charge of all unclaimed property, and to furnish an inventory thereof to the Magis--trate of the District.
5. The police officers shall be guided as to the disposal of such property by such orders as they shall receive from the Magistrate of the District."
6. This section is only attracted to the case of "unclaimed property". The petitioners knew that Mr. S. M.
7. Abbasi, deceased had left behind a widow, therefore, even if we assume that the first respondent was not in occupation .Of the room in dispute so that he had no claim to the furniture, etc. In the room leased to the deceased, the petitioners have stated in their petition that they could not "trace out the widow" of the deceased. This admission mean that they knew that the property in the room was not unclaimed property B within the meaning of section 25 of the Police Act, yet they invoked this section. Secondly, the powers conferred by this 'section can be exercise) only by the District Magistrate, and Mr. Shaukat Ali did not even attempt to argue that an Vaqa Magistrate was a District Magistrate. He only relied on a judgment of a Division Bench of the Lahore High Court reported in Abdul Shakur v. Mahadev Prashad and another (AIR 1930-Lah. 539) but in rejecting this plea by the petitioners, the learned Judge in the High Court had relied on a judgment of Kayani, C.
8. J. In Makhdoom Hussain v. Dr. Wahid Ali (PLD 1961 Kar. 432). As there is thus a cleavage of opinion on the construction of section 25 of the Police Act, learned counsel tried to persuade us to admit the petition on this ground. We have examined these two judgments, and, as submitted by learned counsel, there is a conflict of the authority in the view taken by the High Courts, but we are satisfied that the view taken in Abdul Shakur's case is not correct.
9. The facts in Abdul Shakur's case were that there was a dispute about a house between the applicant and the respondent, and the respondent hadfiled a suit presumably for a declaration that the applicant was its tenant.
10. This suit was dismissed, and although the respondent did not challenge the dismissal of his suit, he filed an application before a Magistrate alleging that the applicant was the tenant of the house in dispute, that the applicant had disappeared from the house and that as his whereabouts were not known and as there was movable property lying in the house it was prayed that the police be directed to break open the house and take possession of the movable property in it. The Magistrate allowed this application and directed that the movable property in the house should be kept with the Sheriff of the Court. On coming to know of this order, the applicant challeng--ed it in a revision in the Lahore High Court. The learned Single Judge, before whom this revision was placed, was of the opinion that the question whether the High Court could interfere under section 439, Cr. P. C.
11. With an order under section 25 of the Police Act was a question of importance, accordingly, he referred it to a Division Bench. The Division Bench held that an order under section 25 did not involve any lis, as it did not determine any rights, therefore, in deciding an application under this section a Magis--trate did not act in a judicial capacity, and as he did not act in a judicial capacity, his order was of an executive nature which could not come within the ambit of section 439, Cr. P. C. Accordingly, the Division Bench dismissed the revision and Mr. Shaukat Ali submitted that the view taken in this judgment was correct.
12. Now, although the question before us is of the High Court's powers under section 561-A and not under section 439, Cr. P. C. This distinction is not material, as the ratio of the case is that an order under section 25 of the Police Act cannot decide any rights and therefore does not involve any ifs.
13. With respect, there may be cases, such as of abandoned property, in which an order under this section does not involve any lis, but we cannot agree with the proposition that an order under this section cannot involve any lis. That is apparent from the case cited, because the order of the Magistrate had disposed of property claimed by the applicant. Similarly, in the instant case, the order of the Magistrate had disposed of property which belonged either to the legal heirs of Mr. Abbasi deceased or to the C first respondent or to both. No doubt, in both these cases, the aggrieved party had the right of recourse to the civil Courts. This, however, cannot alter the fact that the orders of the Magistrates had in both cases decided a Ifs, because an owner of property has a right to its custody, and even an order which deprives him temporarily of the enjoyment of his property necessarily affects his rights. And further as the situation which has arisen in these two cases is a situation which can arise frequently, we cannot agree with the view that an order under section 25 is necessarily an executive order and that such an order cannot affect any rights or involve any Its.
14. Turning now to the judgment of Kayani, C. J. In Makhdoom Hussain v. Dr. Wahid Ali on which the High Court relied, the facts in this case were very similar to those in the instant case, and in allowing an application under section 561-A of the Criminal Procedure Code against an order passed under section 25 of the Police Act, Kayani, C. J. Observed:---- "The question, however, is whether this inherent power is used in respect of criminal Courts only or extends to what a Magistrate does by way of what is styled executive action; also whether what the Magistrate did, was done by him as a Court. So far as the Code goes, a Magistrate has no separate existence from his Court, because under section 6, `there shall be five classes of Criminal Courts', and three of these are 'Magistrates of the first class', `Magistrates of `the second clase' and `Magistrates of the third class'. Even when a Magistrate acts under section 144, Cr. P. C. `in his opinion', a Full Bench has held in P. T. Chandra, Editor, Tribune v. Emperor AIR 1942 Lah. 171 that his opinion is revisable because he acts as a Court. It may be that when he acts under section 25 of the Police Act, since the provisions of the Code do not apply to it, his act may be called an executive D act. But the present order is not under section 25, and there is no capacity other than that of a Magistrate under the Code which could have given him an opportunity to pass an order, howsoever illegal and without jurisdiction. The police complied with the order because it purported to be by a Magistrate. It would not have been obeyed if forest officer bad passed it."
15. We are in respectful agreement with the view of Kayani, C. J. And we hold that the judgment in Abdul Shakur's case does not lay down good law. Therefore, we are not able to accept Mr. Shaukat Ali's submission.
16. The petition is without merit and is dismissed. But as the real dispute between the parties appears to be of a civil nature, we would observe that they are free to prosecute their remedies in the appropriate forum.