' Through this Constitutional petition the petitioners seek declaration of order dated 28-5-2001 passed by respondent No,1 as illegal and unlawful.
2. The brief facts of the case are that the petitioners took shop on lease for the period of 99 years and they paid Rs,6,00,000. According to learned counsel for the petitioners, the petitioners started business over the disputed shop. Respondent No,3, who is residing in America came to Pakistan and tried to dispossess the petitioners in an illegal manner. Petitioners filed a suit for permanent injunction in which respondent No,3 made a statement that she will not dispossess the petitioners illegally and unlawfully. On the basis of the said statement, the suit of the petitioners was decreed and then the respondent No,3 filed an application for ejectment in which the reply was submitted by the petitioners and ejectment petition was still pending before the Rent Controller but in spite of that respondent No,3 moved an application before the Army Monitoring Cell. When the petitioners appeared before the authorities no action was taken on the application of respondent No,3. Failing from this channel respondent No,3 moved another application before the S.H.O. Who has submitted a report of respondent No,1 and she on 28-5-2001, has passed the impugned order under section 145, Cr.P.C. And sealed the premises. Grievance of the petitioners is that as the ejectment petition is pending decision before respondent No,1 but respondent No,3 with mala fide intention and in order to get possession by illegal means in connivance with respondents Nos.1 and 2 is interfering in the possession of the petitioners. The matter is already sub judice before the Court of competent jurisdiction and the respondent No,1 has no authority to interfere in the civil dispute by passing any order under section 145, Cr.P.C.
3. This petition was admitted vide order, dated 31-5-2001. Respondent No,3 moved an Application (C.M. No,3 of 2001) for the vacation of the stay order which came up for hearing on 4-6-2001. But instead of hearing the said application I fixed the case for final hearing on 8-6-2001 and arguments of both the parties were heard at length. However, both the parties wanted to produce some documents on the record hence the case was adjourned to 11-6-2001.
4. Learned counsel for the petitioners contends that the initiation of proceedings under section 145, Cr.P.C. Is abuse of process of law as respondent No,3 is trying to dispossess the petitioners from the premises instead of adopting normal course of law for the eviction of the petitioners. He further contends that the petitioners filed a suit for permanent injunction wherein statement was made by respondent No,3 that the petitioners will be dealt with in accordance with law. Then respondent No,3 admittedly sent a notice for the vacation of the premises while conceding that the petitioners are her tenants. He further contends that in the ejectment petition filed by Shahzada Suleman Durrani through respondent No,3, as General Attorney, it is claimed that the petitioners are her tenants and filed an application under section 13(6) of the Punjab Urban Rent Restriction Ordinance, 1959. According to the learned counsel for the petitioners in para.2 of the petition at page 23 of this petition it was averred that the petitioners are tenants in a Shop bearing No,2 in the property mentioned above and the rate of rent is Rs,4,000 per month, besides claiming that being Mutwali he is entitled to seek the ejectment. He also averred that the respondents were asked to pay the rent of the shop but they are not paying the same and the matter was adjourned on one pretext or the 'other. He claimed the eviction of the petitioners from the shop on the ground of default alongwith other grounds. Learned counsel contends that with mala fide intention and ulterior motive respondent No,3 moved an application to the S.H.O. For the initiation of proceedings under section 145, Cr.P.C. In order to get the possession of the property in a slipshod manner instead of adopting the normal procedure for the eviction. He contends that the proceedings are liable to be quashed as has been held by this Court in a number of cases that where the subject- matter is already regulated by the status quo order, the proceedings under section 145, Cr.P.C.
Cannot be initiated and allowed to continue. He relied upon judgments reported as Alam Sher v.
Suba and others 2001 PCr.LJ 60, S. Iqbal Baligh-udDin v. Sub-Divisional Magistrate, Civil Lines Karachi and another PLD 1994 Kar. 384, Abdul Qadir and 13 others v. Sher Muhammad 1998 PCr.LJ 240, Meraj Din and others 1995 PCr.LJ 1912, Muhammad Ashraf Khan v. The State and others 1995 PCr.LJ 2016, Muhammad Munaf Shaikh v. The State 1998 PCr.LJ 1608 and Muhammad Kashif Zia v.
Muhammad Sarwar and 3 others 2000 PCr.LJ 559.
5. Learned counsel for respondent No,3 on the other hand, contends that the alleged lease deed prepared by the petitioners is a forged document on the face of it. He also contended that Shahzada Sulaiman Durrani is a Afghan by birth and is a Mutwali. Article 208 of Muhammadan Law restrains the Mutwali from leasing out the property for more than three years. He further contends that the ejectment petition filed by respondent No,3 as General Attorney was withdrawn before the submission of application to the S.H.O. For the initiation of proceedings under section 145, Cr.P.C.
Now for the time being no litigation is pending hence the matter is not sub judice as such the proceedings under section 145, Cr.P.C. Can be initiated and the case-law cited is not applicable in the case in hand. He further contends that the dispute regarding possession was settled between the other persons upto Supreme Court but later on this shop has been taken by the petitioners illegally and they want to retain the same. He supports the order of the learned Magistrate for initiating the proceedings under section 145, Cr.P.C.
6. I have heard learned counsel for both the parties at length and also perused the documents attached with this petition. Admittedly the petitioners filed a civil suit for permanent injunction claiming that they have leased out the disputed property for 99 years and while filing the suit against respondent No,3 they also prayed for restraining her from illegally and unlawfully dispossessing them. Respondent No,3 appeared and made a statement that she will not dispossess the petitioners in an illegal and unlawful manner. This suit has been decreed on the statement of respondent No,3 that the petitioners will not be ejected illegally and unlawfully. Then Shahzada Sulaiman Durrani through respondent No,3 Mst. Fauzia Durrani filed an ejectment petition in which it was claimed that Mst. Fauzia Durrani is her general attorney and the property subject-matter of this writ petition was taken on rent by the petitioners at the rate of Rs,4,000 and the petitioners have become defaulters as they have failed to make the payment hence it was prayed that the vacant possession of the disputed premises should be handed over to respondent No,3 in which notice was issued to the petitioners and they filed written reply while denying relationship of landlord and tenant. This petition was pending and adjourned for a number of dates but intentionally this ejectment petition was withdrawn and an application was moved by said Mst.
Fauzia Durrani to the S.H.O. For the initiation of proceedings under section 145, Cr.P.C. On the basis of which the impugned order has been passed. I have perused the impugned order which does not show that it fulfills the ingredients of proceedings under the abovesaid section. In this application Mst. Fauzia Durrani took a different stand already taken in the ejectment petition and stated that the petitioners have illegally occupied the said shop and they are not ready to give the possession of the said shop to her. On the application, the S.H.O. Without affording an opportunity to the petitioners submitted the report to Ilaqa Magistrate who without applying its mind has passed the order which has been impugned in this writ petition. Contention of the learned counsel for the, petitioners is that a statement was made by respondent No,3 in the Court that the petitioners will he dealt with in accordance with law on the basis of which the suit was dismissed which bars the jurisdiction of the Magistrate under section 145, Cr.P.C. As the Civil Court has determined that the petitioners are in possession of the property and will be dealt with in accordance with law. This fact is also borne out from the record of the ejectment petition that respondent No,3 being General Attorney admitted the petitioners as tenants and prayed for their ejectment on the ground of default but later on, summersault was taken and an attempt is being made to dispossess the petitioners through initiation of proceedings under section 145, Cr.P.C. The filing of the application seems to be misconceived and the proceedings initiated by the S.H.O. And the impugned order, dated 28-5-2001 having been passed by the learned Magistrate in contravention of the earlier documents are illegal. The Civil Courts are the only forum which can decide the rights of the parties. Criminal Court can under section 145, A Cr.P.C. Interfere when there is apprehension of breach of peace. When the statement has been made by respondent No,3 as General Attorney that she will not illegally dispossess the petitioners then there was no leave for the initiation of the said proceedings. Respondent No,3 shall struke on her statement made before the Court of competent jurisdiction instead of adopting illegal course for the eviction of the petitioners from the premises in dispute. The filing and withdrawal of the ejectment petition goes against respondent No,3 when she, before the filing of this application under section 145, Cr.P.C., withdrew her ejectment petition. The authorities relied upon by the learned counsel for the petitioners supports his case and in these circumstances the superior Courts have quashed the proceedings under section 145, Cr.P.C.
7. For the foregoing reasons this writ petition is accepted and the order, dated 28-5-2001 passed by the Judicial Magistrate is set aside and quashed as the proceedings were initiated in order to dispossess the petitioners from their lawful possession and respondent No,3 instead of adopting the normal procedure sought eviction of the petitioners in a slipshod manner by misusing the authority of S.H.O. And the Ilaqa Magistrate under the abovesaid section. There will be no order as to costs.