1. The applicant by this Criminal Miscellaneous Application under section 561-A, Cr.P.0 has sought the following relief:-- "It is, therefore, prayed that proceedings under section 145, Cr.P.C. Between the parties on the basis of Report, dated 18-2-1999 under section 145, Cr.P.C. Submitted by Preedy Police, Karachi South pending before learned A.C./S.D.M. Preedy Karachi South alongwith impugned orders dated 20-2- 1999 passed under section 145(4), Cr.P.C. Sealing the premises Plot No,RB/11/44 Aram Bagh Quarters, Karachi South may kindly be de-sealed by quashing the proceedings in the matter in the interest of justice."
2. The brief facts of the case are that applicant purchased premises situated on Plot No,RB/11/44 measuring 413 Sq.Yds. Aram Bagh, Karachi South (hereinafter called as disputed property) from one Nasim Akhtar and Sons of Altaf Akhtar Soofi under a Sale Agreement. The disputed property was already subject-matter of Civil Suit No,1546 of 1992 which was decided and decreed by the learned Senior Civil Judge IV Karachi South in favour of predecessor in the interest i.e. Nasim Akhtar Soofi and others.
3. The respondents Nos.2 to 7 moved application under section 12(2) C.P.C. As intervenors through Mr. S. Farooq Abdullah for setting aside the judgment and decree. The learned Senior Civil Judge dismissed the said application of respondents Nos.2 to 7. However, it was declared that half portion of the disputed property belongs to one Faisal, real brother of Mr. S. Farooq Abdullah as the same was purchased by their father in the name of Faisal in the year 1947. Such entires were also made in the record of rights maintained by the Revenue Authorities.
4. The respondents Nos.2 to 7 being aggrieved by the decision of learned Senior Civil Judge passed by him on application under section 12(2), C.P.C. Preferred a Revision Application No,18 of 1999 which is sub judice before the revisional Court.
5. It is further stated that applicant was put in possession of the disputed property. The respondents 2 to 7 made an attempt to dispossess the applicant whereupon he lodged F.I.R. No,19 of 1999 at Police Station Preedy, Karachi South. They could not, therefore, succeed in ejecting the applicant. The S.H.O. Police Station Preedy, Karachi submitted a report under section 145, Cr.P.C. Before S.D.M.
6. Preedy Karachi on 18-2-1999. The learned S.D.M. Passed order under section 145(1), Cr.P.C. On 20-2- 1999 and simultaneously he passed order under section 145(4), Cr.P.C. Whereby the disputed property was sealed by the police in pursuance of the impugned order of S.D.M. It is also stated that both parties moved the learned S.D.M. Under section 145(5), Cr.P.C. But no action has been taken by him as yet.
7. ' The respondents Nos.2 to 7 filed objections by way of counter-affidavit wherein they have averred that the dispute is actually between the occupants of the plot/building who have been forcibly dispossessed by the applicant and he is illegally demolishing the building. The respondents Nos.2 and 4 are tenants of the disputed premises and the remaining private respondents are their workers. They have filed copies of rent receipts in proof of their tenancy. The previous owner Sheikh Faisal Abdullah has expired and his brother Sheikh Farooq Abdullah is successor-in-interest. The applicant set up fictitious person and prepared a forged transfer order allegedly issued by the Settlement Department and through these persons applicant got filed a civil suit before the learned Senior Civil Judge IVth Karachi and obtained the decree fraudulently and by misrepresenting/ suppressing the true facts. A Revision Application bearing No,18 of 1999 has been filed by the owner of the building before High Court against the fraudulent decree and this Court has suspended the operation of the order of the Court below.
8. It is further stated that on 15-2-1999 at dusk time the respondents were arrested by police from their workshops and taken to Preedy Police Station where they were directed to sign a paper wherein it was written that they had vacated the disputed premises by their own free-will. They declined to do so whereupon they were sent behind the bars by the police and on next day they were released on bail granted by the Judicial Magistrate. The applicant and his associates with the connivance of police forcibly ejected the occupants of the disputed premises and threw their house-hold articles on the ground and issued them threats of dire consequences. This operation continued for the whole night and thereafter, they started dismantling the building. The episode was also published in news papers cutting of which has been filed.
9. On the complaint made to the Government Cell, the learned S.D.M. Raided the disputed premises on 18-2-1999. The applicant and his associates who were armed with lethal weapons and were demolishing the disputed premises were arrested.
10. It is mentioned that the S.H.O was openly supporting the applicant and other culprits. He let them off and made a false report to the S.D.M. That there was apprehension of breach of peace and under the guise of such report he obtained an order of Sealing the disputed premises instead of protecting them from the high handedness of applicant and his associates.
11. The respondents Nos.2 to 7 have made the following prayer:-- The S.D.M. Be directed to restore the respondent tenants and other occupants of the building the possession of their premises;
(ii) Arrest and punish the applicant and those apprehended by the S.D.M. On 18-2-1999 for evicting the respondents by use of criminal force, breaking and damaging the goods of the respondents and breaking the building;
(iii) Quash the proceedings initiated by the applicant against the respondents under the false F.I.R.
12. No,19 of 1999, dated 13-2-1999 (Annexure "D");
(iv) Order the applicant to pay compensation to the respondents for the damage caused to their goods and premises."
13. On 24-3-1999 counsel for the parties were heard and order was reserved. Before the announcement of order M.A. No,583 of 999, under section 561-A, Cr.P.C. Was filed wherein it was prayed that respondents 2 and 3 and his all other sons namely Arshad and Suhail have entered into compromise with applicant therefore they have no objection if the request of applicant allowed and disputed property is desealed in favour of the applicant. The application is signed by respondent No,3 and one Arshad Farooq and Suhail Farooq who are not parties to present proceedings. It is also signed by the learned counsel for the applicant and one Mr. Chand Muhammad Advocate. The application is not signed by respondent No,2 and respondents Nos.4 to
7. However, the affidavits of Mr. Haroon respondent No,2, M. Tariq respondent No,3 have been filed in support of application.
14. On careful perusal of the application and affidavits filed in support thereof it transpired that the signature of respondent No,2 M. Haroon is lacking on the application (M.A. No,583 of 1999) and on affidavit it is in Urdu language. The signature of respondent No,3 M. Tariq is in English language which is quite different from the signature put on the objections/counter affidavit dated 22-3-1999 sworn before the Commissioner for taking affidavits and on power (Vakalatnama) of his Advocate Mr. S.F. Abdullah of Messrs Abraham and Sarwana, Advocates. The affidavit of respondent No,3 M.
15. Tariq shows that in the space for mentioning the number of respondent his number was not mentioned. In paragraph 1 of the affidavit it is mentioned that photo copy of his National Identity Card is annexed with affidavit but there is no such copy of National Identity Card on the record.
16. More alarming fact is that the signature of respondent No,3 on the affidavit is in Urdu language whereas the documents referred herein above contain his signature in English. His affidavit which was sworn before the Commissioner for taking affidavits shows that respondent No,3 was identified by the one Mr. Chand Muhammad, Advocate. The power/Vakalatnama of Mr. Chand Muhammad does not bear the signature of respondent No,3 M. Tariq.
17. Mr. Farooq Abdullah, Advocate moved Miscellaneous Application No,653 of 1999 under section 561- A, Cr.P.C. For impleading him as intervenor in the matter as he is necessary party and an aggrieved person.
18. The intervenor has stated in the application that respondents Nos.2 and 3 have filed applications for desealing the disputed premises in favour of applicant in order to deprive the landlord and tenants from their legal right and lawful possession.
19. He has averred that the prayer of compromise and desealing the premises is misconceived. The respondents Nos.2 and 3 are merely tenants who are only entitled to the extent to use the premises but they have no right to transfer the possession of the disputed property or part with it in any manner whatsoever. Apart from respondents 2 and 3 there are several other tenants. The applicant never remained in physical possession of the disputed premises except as a criminal trespasser for three days i.e. From 15-2-1999 to 18-2-1999 which do not confer any right under section 145(4) proviso (1), Cr.P.C. The decree for mutation was obtained fraudulently which has been impugned in the H.C. Revision Application No,18 of 1999 and the order of trial Court was suspended by this Court.
20. It is further stated that intervenor's family are recorded owners of the disputed property since last more than (50) fifty years and they are in the possession of the same. In support of this contention property extract issued on 15-10-1951, has been filed which shows that intervenor's father was owner. The second property Extract dated 28-8-1953 annexed shows that mother and brothers were owners. The third property extract, dated 29-9-1995 annexed reveals that mother of intervenor gifted her share to the intervenors brother who became sole owner. It is stated that intervenor's brother died on 21-9-1992 and after his death intervenor and other heirs are the owners of disputed property/premises. The intervenor has sought following relied:-- "It is, therefore, prayed that this Honourable Court may be pleased to--
(1) reject the so-called compromise application of respondents Nos.2 and 3;
(2) order restoration of possession to all the tenants who were thrown out of the subject building;
(3) the false F.I.R. 19 of 1999 lodged by the applicant to intimidate the respondents and the intervener be cancelled;
(4) an F.I.R. Be ordered against the applicant for the criminal trespass into the subject building and breaking its different parts."
21. The respondents 4, 5, 6, and 7 have filed objections wherein they have stated that respondents 2 and 3 have falsely stated in their affidavits that the respondents 4 to 7 are their workers. The respondent No,4 (Sirajuddin) is a tenant whose tenancy agreement and rent receipts are already on the file of this case. The respondent No,5 (Mairajuddin) is brother and respondent No,7 (M. Zahid Qureshi) is son of the respondent No,4 and respondent No,6 is their worker.
22. They have further stated that they have not entered into any compromise with the applicant.
23. According to them applicant is an accused and is liable to punishment as he has violated the law.
24. The applicant had forcibly occupied the disputed premises for hardly (3) three days i.e. From 15-2- 1999 to 18-2-1999. Applicant has caused damage to the premises which tenants have to repair it, but in order to prevent them from doing so, the applicant in connivance with S.H.O. Got the building sealed. The respondents 2 and 3 have defrauded the tenants of premises by becoming leaders as in the first instance they answered the tenants that they will represent and get them relief from the concerned authorities and subsequently they conspired and joined hands with applicant in order to deprive the tenants from their lawful possession and so-called compromise application is not maintainable in law and order of restoration of possession to the tenants be passed.
25. I have heard the learned Counsel for the parties again and perused the material placed on record.
26. The perusal of record shows that the operation of the judgment and decree passed by the learned IVth Senior Civil Judge Karachi South in Civil Suit was suspended by this Court on 5-3-1999 in Civil Revision Application No,18 of 1999. The order is reproduced herein under for ready reference:-- "ORDER Dated 5-3-1999 Mr. Sheikh Farooq Abdullah, for the Applicant.
(1) Allowed.
(2) On 23-2-1999 this Court had ordered the respondents not to dispossess the tenant and not to transfer the property in question. Affidavit of the Advocate for the applicant has been filed in support of C.M.A. No,332 of 1999, wherein it is stated that the relief of temporary injunction has proved inadequate to protect the interest of the applicant and that respondents Nos.1 to 4 have no permanent place so it would be difficult to serve them. He requests that operation of the impugned judgment and decree be suspended.
27. Accordingly, the operation of the impugned judgment and decree is suspended till the next date of hearing i.e. 22-3-1999.
28. (Sd.) Amanullah Abbasi, Judge."
29. It is also transpired from record that the application made an application to the S.D.M. ?Reedy on 20-2-1999 wherein it is stated that applicant made an application to S.S.P. South requesting therein that some persons are illegally occupying disputed property and legal action may be taken against them. S.S.P. South forwarded the application to S.H.O. Preedy who registered a case under sections 147, 148 and 448, P.P.0 on 13-2-1999 and arrested the occupants. After their arrest applicant occupied the premises which became vacant on the arrest of occupants. Lt is further stated that S.H.O. Preedy sent a report under section 145, Cr.P.C. Before the S.D.M. On 18-2-1999. The law and order problem has been made and there is imminent apprehension of breach of peace and also there is possibility of blood shed, therefore, disputed premises may be sealed. It appears that the S.D.M. Preedy on receipt of application made by applicant, passed the impugned order under section 145(4), Cr.P.C. On the same date i.e. 20-2-1999 which is reproduced herein under in extenso:-- "In the Court of Sub-Divisional Magistrate, Preedy, Karachi South M. Haroon son of Haji Allandin Sirajuddin son of Babo Din Mairajuddin son of Babo Din M. Tariq son of M. Haroon Sajid Ali son of Abdul Ghani M. Zahid Qureshi son of Sirajuddin 1st Party versus Syed Gohar Ali Shah son of S. Sharif Ali Shah .......................... 2nd Party Order under section 145(4), Cr.P.C.
30. Whereas, I am satisfied from the police report and hearing both the parties in person that there is strong apprehension of breach of peace regrading property dispute (Plot No,44, Street No,11 Aram Bagh Quarters, Karachi). Both the parties are disputing the possession of the said property and the undersigned has a strong reasons to believe that the peace of the area may be breached if the said property is not sealed immediately.
31. After hearing satisfied that the case is such which requires immediate action in order to prevent any law and order situation, I hereby order that the premises of Plot No,44 Street 11 Aram Bagh Quarters Karachi may be sealed immediately and would remain sealed till further disposal of the matter. The S.H.O. Preedy is directed to implement this order without causing prejudice to....Any part in dispute.
32. Given under my hand and seal of this Court. This 20th day of February, 1999.
33. (Sd.) Sub-Divisional Magistrate, Predey, Karachi South."
34. Thus, it is crystal clear that the proceedings were initiated and impugned order was passed at the instance of applicant. The rule of propriety demands that applicant should have waited for the decision of the trial Court and he could not blow hot and cold by invoking the inherent jurisdiction of this Court to obtain the possession of disputed premises on the report of S.H.O. Against whom it is specifically alleged that he is partisan.
35. There is no cavil that Criminal Courts are not competent to decide about the title or relationship of landlord or tenant. It is the function of Civil Court and civil remedy cannot be circumvented by way of criminal proceedings.
36. In proceedings under section 145, Cr.P.C. The Magistrate has to satisfy himself only to the extent that disputes existed between the parties and further that there is imminent apprehension of breach of peace concerning the land or water or boundaries thereof within his jurisdiction.
37. Subsection (2) of section 145, Cr.P.C. Envisages that for the purposes of this section the expression land or water includes building, markets, fisheries, crops or other produce of land and the rents of profits of any such property. The Magistrate is only competent to the extent that after enquiry and evidence adduced by parties without reference to the merits or the claims of any of such parties to a right to possess the subject-matter of dispute he has to decide whether any and which of the parties was at the date of the order before mentioned in such possession and if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed as if he had been in possession at such date. (under lining is mine)
38. It is also envisaged that in case of emergency he can attach the property in dispute till the decision made by him.
39. It will be pertinent to reproduce herein under subsection (6) of section 145, Cr.P.C. For ready reference:-- S.145.--- Disputes as to Immovable property.---
(1) ......................................................................................................................................
40. (2)
41. (3)
42. (4)
(5) ...............................................................................................................................
(6) Party in possession to retain possession until legally evicted. If the Magistrate decides that one of the parties was or should under the first proviso to subsection (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso t. Subsection (4), may restore to possession the party forcibly and wrongfully dispossessed.
43. Thus, it is crystal clear that the intention of legislature was that the Magistrate had only to decide the question of possession and restore the possession to the party who was forcibly and wrongfully dispossessed. The Magistrate cannot travel beyond that. The report of police officer is not a final word while determining the question of possession. He is only a witness like any other person and he has to pass the test of cross-examination.
44. The contentions of the parties reproduced hereinabove show that with regard to possession/entitlement there are different/divergent versions in the case.
45. It is not controverted by the parties that no dispute is existing between them and dispossession has not been made. The case has not proceeded so far.
46. The power under section 561-A, Cr.P.C. Is not meant to stifle the prosecution but it is intended to prevent the abuse of the process of Court. For quashing proceedings at the initial stage the Court has to consider the allegations made on their face value and if a prima facie case is made out the Court can refuse the quashment. In the case in hand the applicant himself has stated in the application moved before trial Court that there is imminent apprehension of breach of peace and likelihood of bloodshed due to dispute over the possession of the promises (subject-matter of present application).
47. The High Court under section 561-A, Cr.P.C. Cannot assume the role of trial Court and evaluate/assess the evidence which is yet to come. It is the function of trial Court. This Court cannot embark upon such an exercise to determine the right to possession of a person by way of a detailed enquiry. The parties may adduce the evidence before the trial Court in support of their pleas and pass the test of cross-examination and appreciation of the evidence is also the duty of the trial Court in the light of the statutory provisions and the dictums laid down by the superior Courts. The jurisdiction under section 561-A, Cr.P.C. Is an extraordinary one and powers vested in the High Court are to be exercised sparingly and not generally or as a matter of routine. It will not be out of place to mention that if a landlord seeks to obtain possession from his tenant, for that purpose he should move the proper forum provided under law for the eviction of tenant as it is a civil remedy. The landlord for the eviction of tenant cannot invoke the proceedings under section 145, Cr.P.C. The proceedings under section 145, Cr.P.C. Are C intended only for a limited purpose as discussed above. By filing a civil suit in respect of the subject-matter of the disputed property the jurisdiction of a Magistrate under section 145, Cr.P.C. Is not completely ousted. The civil proceedings could not be a bar for initiation of proceedings under section 145, Cr.P.C. If there is imminent apprehension of breach of peace over the subject-matter of dispute. The first proviso to subsection (4) of section 145, Cr.P.C. Contemplates that if a Magistrate comes to the conclusion that any party had been dispossessed within a period of two months next proceeding the preliminary order should restore the possession to the party found in actual possession who was forcibly and wrongfully dispossessed.
48. Moreover, the jurisdiction under section 561-A, Cr.P.C. Is not an additional or alternate jurisdiction and when alternate remedy is available then application under section 561-A, Cr.P.C. Cannot be entertained. The inherent powers of High Court under section 561-A, Cr.P.C. Though are very wide but they are not supposed to be exercised to override the express provisions of law. The jurisdiction under section 561-A, Cr.P.C. Can be invoked to quash proceedings in exceptional cases where the trial tantamounts to unnecessary harassment or where no other alternate or adequate remedy is provided by law.
49. In case of A. Habib Ahmed v. M.K. Alias Scott Christian and 5 others PLD 1992 SC 353, it was observed that if prima facie case is made out the ordinary course of trial before the Court was not to be allowed to be deflected by approach to special revisional or inherent jurisdiction of High Court.
50. In yet another case of Sheikh Mehmood Saeed and others v. Amir Nawaz Khan and others 1996 SCMR 339 Honourable Supreme Court has laid down the dicta that every case should be allowed to proceed according to law and report to the provisions of section 561-A, Cr.P.C. Should not be made lightly as the same would tend to circumvent the due process of law.
51. The upshot of the above discussion is that the impugned order does not suffer from any legal or factual infirmity and the application for quashment of proceedings is, therefore, misconceived, premature and it merits no consideration. Consequently the application is dismissed. The listed applications have also become infructuous and are disposed of accordingly.