' Applicant Muhammad Akram, through this application under section 561-A, Cr.P.C. Has sought quashment of the proceedings under section 145, Cr.P.C. Pending before the Sub-Divisional Magistrate, Gulshan-e-lqbal, Karachi.
2. The case of applicant, as stated in his application, is that he was tenant of Hassan Shoeb Malik, respondent No,3 and Hassan Zahid in respect of Shops Nos.B-3/1 and B-2/1, Maisam Plaza, Block-3, Gulshane-Iqbal, Karachi for 8/9 years and lastly he purchased both the shops from the landlords/owners for Rs,30,00,000 through an agreement and paid an amount of Rs,20,00,000 to them. It is alleged that the owners demanded Rs, 20,00,000 instead of Rs,10,00,000 towards the balance which the applicant declined. The applicant was, however, ejected from the premises on 28-2-2000 in execution of an order passed by the concerned Rent Controller. According to applicant, the elders intervened and on his payment of Rs,2,00,000 the keys of the shops were handed over to him and another agreement was executed whereafter he started his business of hotel in the same premises as before, but again the said owners demanded Rs,18,00,000 instead of Rs,8,00,000 towards balance. The applicant, therefore, filed a Civil Suit (No,1727 of 2000) in this Court on original side. Hassan Shoeb Malik, respondent No,3, on the other hand, instituted proceedings under section 145, Cr.P.C. Against the applicant whereupon the latter obtained a stay order against the owners as well as S.H.O., Police Station Gulshan-e-Iqbal, Karachi on 3-1-2001. The S.D.M., Gulshan-e-lqbal, Karachi, respondent No,2, however, passed an order, dated 10-2-2001 under section 145(4), Cr.P.C. To seal the shops. The applicant filed an application under sections 3/4 of the Contempt of Courts Act in the civil suit which has not yet been decided. It is also mentioned in the application that two F.I.Rs, for offences under section 188, P.P.C. Have been drawn against the applicant and his employees. It has, as such, been prayed that the matter is of civil nature and there is no apprehension of breach of peace the proceedings under section 145, Cr.P.C. Are liable to be quashed.
3. The respondent No,3 filed his objections wherein he stated that he and his brother are lawful owners of the said shops which were rented out to the applicant but since he stopped paying rent and electricity bills to the tune of Rs,1,92,600 and Sui Gas bill amounting to Rs,1,11,742 they, under the circumstances, were constrained to file two separate ejectment proceedings in the Court of learned Rent Controller No,9, Karachi East, notices whereof were served on the applicant who instead of filing written statement moved an application under section 151, C.P.C. Separately in both cases, which were dismissed by learned Rent Controller. The eviction orders were passed by the learned Rent Controller on 31-7-2000 in the said cases and thereafter separate execution proceedings were initiated wherein the applicant filed applications on 4-10-2000 which were dismissed. It was accordingly asserted that in the circumstances it was a totally false version given by the applicant that the orders of eviction and execution were ex parte. It is also pointed out that because of the conduct of applicant police aid was sought and the bailiff of the Court accompanied by police got the shops vacated on 20-10-2000. The document of handing over vacant possession was also prepared by the bailiff. It is alleged that on 28-10-2000 the applicant broke open the locks and took over the possession of the shops illegally and a criminal complaint was, therefore, lodged which was registered as F.I.R. No,558 of 2000 for offence under section 448/34, P.P.C. The applicant filed a Constitutional Petition being C.P. No,D-494 of 2000 which was disposed of with observation that no action could be taken without due process of law; thereafter on 7-11-2000 the respondent No,3 moved an application before S.D.M. Again the respondent No,3 filed a Constitutional Petition No,D-1740 of 2000 which was disposed of on 20-12-2000. It is specifically mentioned in these written objections that the Sale agreements, payment receipt and compromise agreement etc. Filed by the applicant are forged and manipulated documents just to make out a ground for the civil suit. It is additionally pointed out that in the proceedings under section 145, Cr.P.C. The applicant was represented by an Advocate but he avoided the proceedings and adopted delaying tactics and the shops were sealed to avoid breach of peace and according to him, there was sufficient material to warrant proceedings under section 145, Cr.P.C.
4. At the outset it appears to be beneficial to note that bare perusal of contents of the instant application and the documents filed by the respondent No,3 read with his objections would clearly indicate that the applicant has not come to this "Court with clean hands. Besides, he has also not approached the revisional Court against the impugned order which undoubtedly is revisable under section 435 read with section 439-A, Cr.P.C. As regards first limb of the observations made herein it is pertinent to mention that according to applicant the respondent No,3 obtained an ex parte order for eviction of applicant from the Rent Controller and with police aid ejected the applicant from the said shops and only on that day he came to know about the rent proceedings. Whether the learned Rent Controller passed an ex parte order, it may be observed, the criminal Court under the law is not authorized to examine this question. Nevertheless, what is relevant to be pointed out here is that as per para.2 of the instant application it is the applicant's version that he came to know about the rent proceedings when he was ejected through police by executing the ejectment order, whereas the copies of the application under section 151, C.P.C. Filed in Rent Cases Nos.68 of 2000 and 68 of 2000 show that the applicant in capacity of opponent in rent proceedings had filed application for dismissal of the rent applications. Learned Rent Controller had heard counsel for both the parties and dismissed the applications. Even eviction order passed by the Rent Controller shows that after being served with the notice the applicant in capacity of opponent/tenant had engaged Mr. Ashiq Hussain Mehr, Advocate but he failed to file written statement. Again, during execution proceedings the objections were filed by the applicant in capacity of judgment-debtor taking altogether different pleas from what has been stated in the instant proceedings. Since at the moment this Court is not concerned to look into those please, it is not necessary to dilate upon the correctness thereof, but suffice it to say that such objections had passed through Executing Court and duly considered whereafter writ of possession was ordered to be issued and then through subsequent order, dated 26-10-2000 police aid was provided to the bailiff by the Executing Court.
5. The applicant has suppressed all the facts narrated above and has simply made a misguiding statement that the respondent No,3 has attacked him from his back and obtained an ex parte order from learned Rent Controller and that he came to know about those proceedings when with police said he was ejected from the premises. This is an unscrupulous and false version and by itself is sufficient to indicate that he has not come to the Court with clean hands.
6. No doubt the exercise of power under section 561-A, Cr.P.C. Is not barred because of the provisions of sections 435 and 439-A, Cr.P.C. And in highly exceptional cases application under section 561-A, Cr.P.C. Can be entertained by the Court but in the instant matter no extraordinary circumstances exist to justify and provide a ground for skipping over the provisions of section 435 read with section 439-A, Cr.P.C. Over and above the conduct of the applicant in laying down misguiding version, plainly disentitles him to equitable relief or concession under the law. The application is liable to be dismissed on these grounds.
7. It was argued on the strength of law laid down in Muhammad Sarwar v. State PLD 1985 SC 240 that when the possession of property in question is regulated by Civil Court even through temporary injunction the matter would fall outside the jurisdiction of Magistrate under section 145, Cr.P.C. The legal proposition has since been settled by Honourable Supreme Court this contention can effectively be raised before revisional Court on the basis of necessary data but it is worthwhile to mention here that in the suit between the parties this Court on original side had ordered the parties to maintain status quo and now it is for the parties to put up their case in the said proceedings to establish as to who was in possession and what state of possession was ordered to be continued undisturbed. All the same, the status quo order was for a paricular period which was further incumbent upon the applicant to show that it was extended up to the crucial period. The applicant was asked to file a copy of latest order in this behalf but he could not furnish a certified copy thereof. However, as pointed out earlier he can agitate this aspect in the Court of first instance i,e, the revisional Court.
8. For the reasons stated above I am inclined to hold that there are no grounds justifying quashment of the proceedings, particularly, when the applicant has not come to the Court with clean hands and has also not availed the remedy through revision proceedings. The application is, as such, dismissed.