1. ' By this order I propose to dispose of Criminal Miscellaneous Application No,410 of 1994 which has been filed by Mohal Moti Lal and another under section 561-A, Cr.P.C. For abashment of the order, dated 27-6-1994 passed by the learned 1st Additional Sessions Judge, Karachi South.
2. ' Brief facts of the case, as per the applicants, are that Sree Guru Nanak Darbar situated at Aram Bagh, Karachi (hereinafter referred to as "the Darbar"), was established in the year 1915 and Hindus of Karachi and other parts of the country used to offer their prayers (Puja Pat) and celebrate their religious ceremonies at the Darbar. According to the applicants, Hindus of Sindh believed in the teachings of Baba Guru Nanak Saheb and holy book of Sikhs Sree Guru Granth Saheb also. The Hindus, for the management and administration of the Darbar, formed a Shewa Mandli (Panchayat) and the applicants are its office-bearers and they along with other Hindu families are residing permanently in the premises of the Darbar whereas not a single Sikh Family is residing therein. According to the applicants, in January, 1993, the respondents Nos.2 and 3 who originally were Hindus and later on converted to Sikh religion, started visiting the Darbar and started disturbing the religious functions and prayers of Hindu community with mala fide intention to usurp the property of the Darbar which, according to the applicants, is a Hindu Mandir. In the month of June, 1993, the respondents Nos.2 and 3 took law, in their hands and assaulted the members of Hindu community including the applicants, as a result whereof the applicants and respondent No,2, on report being lodged with the police, were challenged under sections 107 and 117, Cr.P.C. In the Court of area Magistrate. The respondents Nos.2 and 3 thereafter, all of a sudden, put lock on the door of worship hall of the Darbar and stopped Hindus from performing their prayers. The applicants, apprehending danger to their lives and their place of worship, lodged a report with the police whereupon the S.H.O., Arambagh Police Station submitted a report under section 145, Cr.P.C.
3. Before the Assistant Commissioner and S.D.M. City, Karachi South who, after observance of due legal formalities on 21-7-1993, passed an order for sealing the Darbar and the parties were directed to file their respective written statements. After recording evidence of the parties the Assistant Commissioner and S.D.M. City, Karachi South, vide his order, dated 7-2-1994, held that "the Darbar Saheb premises shall continue to remain attached and sealed under section 146, Cr.P.C. Till such time the contesting parties get their title decided from a Civil Court of competent jurisdiction". The said order was challenged by respondents Nos.2 and 3 by way of Criminal Revision Application No,15 of 1994 before the Sessions Judge, , Karachi South and the same was ultimately decided by the 1st Additional Sessions Judge, Karachi South vide his order, dated 27-6-1994 wherein the order passed by Assistant Commissioner and S.D.M. City, Karachi South, was set aside and the trial Court was directed to deseal the Darbar to enable the respondents Nos.2 and 3 and other Sikhs to offer their prayers. It is this order, in revision, of the learned 1st Additional Sessions Judge, Karachi South, which has been challenged by the applicants under the present criminal miscellaneous applications.
4. ' I have heard the learned counsel appearing for the applicants, respondents Nos.2 and 3 and Mr. Narain Das C. Motiani, learned Additional Advocate-General, Sindh, who has appeared for the State.
5. ' Contention of the learned counsel for the applicants is that the Darbar, right from its inception, has been a place of worship for Hindus and its management has always remained vested with the members of Hindu community. It was only after conversion of respondents Nos.2 and 3 from Hindu faith to Sikh faith that they, with the intentions of grabbing the properties attached with the Darbar, started creating undue harassm ent to Hindu community and in furtherance of achieving this objective, the respondents Nos.2 and 3 forcibly dispossessed the applicants from the Darbar.
6. Further contention of the learned counsel for the applicants is that oral as well as documentary evidence produced by the applicants before the Assistant Commissioner and S.D.M. City, Karachi South, sufficiently demonstrate that the applicants and members of their community were in possession of the disputed premises ever since its inception and have been offering their prayers and celebrating their religious festivities in the Darbar whereas the respondents have failed to produce any oral as well as documentary evidence except the statement of respondent No,2 to prove that the Darbar was ever a Gurdwara meant for performing prayers by Sikh community. In this background contention of the learned counsel for the applicants is that the possession of the Darbar should have been restored to the applicants or in the alternative the order passed by the Assistant Commissioner and S.D.M. City, Karachi South, should have been maintained in the impugned order.
7. ' On the other hand learned counsel appearing for respondents Nos.2 and 3 has contended that the order passed by the trial Court was not challenged by the applicants, no F.I.R. And/or complaint in respect of dispossession, as alleged by the applicants, was lodged/filed by the applicants and as such the impugned order cannot be challenged by the applicants by way of this criminal miscellaneous application. In this regard, reliance has been placed by the learned counsel on the case of Mirza Abdul Razzak v. Barkat Ali and others 1985 SCM R 1235.
8. ' I have carefully examined the judgment cited by the learned counsel for the respondents Nos.2 and 3. In the cited case it has been held by the Honorable Supreme Court of Pakistan that the Magistrate on satisfaction of jurisdictional requirements is required to decide "any and which of the parties was at date of order" in possession of the property and the Magistrate is expressly precluded from examining "merits of claims of any such parties to a right to possess subject of dispute". It has further been held by the Honorable Supreme Court in the cited case that words "may restore to possession the party forcibly and wrongfully dispossessed" used in section 145(6), Cr.P.C. Are, prima facie, enabling and permissive in nature empowering the Magistrate to pass an order restoring possession and word "may" can never mean "must". In my opinion, in the judgment cited by the learned counsel for the respondents Nos.2 and 3, the Honorable Supreme Court of Pakistan has laid down perimeters of powers of a Magistrate which are exercisable by him under section 145(4)(6) of Cr.P.C.. And I am unable to persuade myself to understand as to how the cited judgment in the given set of circumstances of this case is helpful to the contentions raised by the learned counsel.
9. ' Mr. Narain Das C. Motiani, learned Additional Advocate-General has taken me through the evidence of the parties recorded by the Assistant Commissioner and S.D.M. City, Karachi South, and has contended that the oral and documentary evidence led by the applicants goes to demonstrate that the applicants were in possession of the Darbar and were forcibly dispossessed by respondents Nos.2 and 3 on 18-7-1993. The yearned Additional Advocate-General has, however, contended that in view of imminent breach of peace the order passed by the Assistant Commissioner and S.D.M. City, Karachi South, for remaining the Darbar under seal till such time that the parties get their title decided from a Civil Court is a proper order and the learned 1st Additional Sessions Judge, Karachi South, fell in error in setting aside the same and desealing the Darbar for offering prayers by respondents Nos.2 and 3 and other members of Sikh community.
10. ' I have given my careful consideration to the arguments advanced by the learned counsel appearing for the parties and the State and have perused the oral as well as documentary evidence brought on record by the contesting parties. From the evidence on record it is evident that there has been dispute, scuffles and fights between the two set of religious groups in the past over the possession and right to offer prayers in the Darbar and proceedings under sections 107 and 117, Cr.P.C. Were instituted against both the groups by the Police. Furthermore, from the evidence brought on record, it is difficult to form an opinion as to which of the party was in possession of the Darbar two months prior to its sealing under the order of the Assistant Commissioner and S.D.M. City, Karachi South, from the record it is also established that the parties are already litigating to establish their respective title before a Civil Court. Under section 146, Cr.P.C. a duty is cast upon the Magistrate to attach the property until a competent Court has determined the rights of the parties in case the Magistrate is unable to satisfy as to which of the party was in possession of the disputed property at the time of passing the order under section 45, Cr.P.C. Or two months prior to that. In my opinion none of the parties have been successful in proving its possession on the date of passing of the order under section 145, Cr.P.C. For sealing the Darbar or two months prior to the passing of the same and, as such, the only order which could be passed, is to let the Darbar remain sealed under section 146, Cr.P.C.
11. ' The upshot of the above discussion is that the impugned order, dated 27-6-1994 passed by the learned 1st Additional Sessions Judge, Karachi South is set aside/quashed and the order, dated 7- 2-1994 passed by the Assistant Commissioner and S.D.M. City, Karachi South, is maintained.
12. Accordingly, this criminal miscellaneous application is allowed. Since by this order I have held that the premises, the Darbar, shall remain sealed till such time the parties get their title decided by a Court of competent civil jurisdiction, M.A. No:3339 of 1997 which is for return of articles lying sealed in the Darbar cannot be allowed and, as such, the same stands dismissed. In so far as M.A. No,3481 of 1987 is concerned, the same has served its purpose and is hereby dismissed as infructuous. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.