' In this case, two real brothers, namely Syed Iftikhar Hussain and Syed Iqbal Hussain, are pitched against each other. The dispute has arisen out of the possession of a house which originally belonged to their father.
2. According to the B. I. R. Lodged by Syed lqbal Hussain respondent the house in question was in the illegal possession of one Abdul Aziz. The latter, however, vacated the house, but before the complainant (Syed Iqbal Hussain respondent) could take possession of the same, his brother Iftikhar Hussain brought his luggage and occupied the house illegally and when lqbal Hussain respondent reached the house alongwith his son Tabassum he found Iftikhar Hussain petitioner already in possession of the house in question. It is alleged that when Tabbasum asked Iftikhar Hussain petitioner to come out of the house the latter fired at him with his pistol, but missed the shot. Iqbal Hussain respondent reported the matter to the Police and a case under section 307/448/452, P. P. C. Was registered against Iftikhar Russian petitioner. Inspector Ahmad Zaki, the S. H.
0. Of the relevant Police Station (i,e, Police Station, Moaang) also initiated proceeding under section 145, Cr. P. C. On the ground that there was likelihood of breach of peace between the parties over that dispute for possession of the house in question. He also sealed the said house so that the parties should not fight over the possession of the house during the pendency of case.
' The present petition has been filed for quashment of proceeding under section 145 read with section 107/150, Cr. P. C. Titled "State v. !Ftlkhar Hunan Gibe pending in the Court of Sh. Sirajud Din, M.
I. C., Lahore. It was contended by the learned counsel for the petitioner that Mr. Ahmad Zaki, S. H.
0. Had no power under law to order the sealing of the ho in question and it is only the learned Magistrate seized of the matter wh could pass such an order. Learned counsel for the complainant on th other hand submitted that the S. H..
0. Was authorised to pass such an order under section 149, Cr. P. C. And it was under that section that the order in question had been passed by him. I am of the view that this contention has no force. A copy of a portion of the Police file wherein Ahmad Zaki, S. H.
0. Has mentioned the sealing of the house clearly state that he has done so under section 145, Cr. P.
C. Moreover, section 149 Cr. P. C. Does not give him any such powers. This view is supported b a Division Bench of the Allahabad High Court in AIR 1925 All.
165.
' Secondly the crux of the proceedings under section 145, Cr. P. C. That the Magistrate before whom the matter is pending, shall after recordin the evidence produced before him. Only decide as to who was in possession of the disputed property at the relevant time irrespective of the claim or title of the parties to such possession. This is clear from a perusal of subsection (4) of section 145 of the Criminal Procedure Code which runs as follows: ' The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to posses the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject."
In the present case according to the report lodged by Syed Iqbal Husain complainant (respondent in the present application), his brother Iftikhar Hussain (petitioner) was already in occupation of the house before he reached there. This is supported by Report No, 32, recorded by Inspector Ahmed Zaki, S. H.
0. P. S. Mozang, Lahore. As such the continuance of proceedings under section 145, Cr. P. C. Will not at all be fruitful and will only amount to an abuse of process of Court inasmuch as the fact as to who was in possession of the house in question at the relevant date stands alreadly admitted. The proceedings under section 145, Cr. P. C., are therefore quashed; the house should be de-sealed and possession thereof restored to the person who was dispossessed of the same by the S. H.
0., namely to Syed Iftikhar Hussain, petitioner.
' Proceedings under section 107/150(151) of the Criminal Procedure Code can however continue in view of the continuance of danger of breach of peace between the parties. Similarly the main case, under sections 307/448 and 452, P. P. C. Shall also proceed separately. This disposes of the application for quashment. Order accordingly. NM=