1. Granted.
2. Through this Criminal Miscellaneous Application, the applicant has impugned the order passed by 1st Additioanl District and Sessions Judge, Karachi (South) whereby he, dismissed Criminal Revision Application bearing No,16 of 2000 filed by the applicant against the order passed by learned Assistant Commissioner and SDM Eidgah dismissing application, filed under section 145, Cr.P.C. By the applicant.
1. ' The brief facts, giving rise to the filing of the present Criminal Miscellaneous Application are that the applicant claims the ownership of superstructure of sixteen huts constructed over two plots of Auqaf Department bearing Nos.22 and 169 known as Siraj Compound, Nishtar Road, Karachi where out of sixteen huts, four were in possessions of the applicant in which he alongwith respondents Nos.1 and 2, being wife and son, respectively, were residing and the remaining huts were occupied by the tenants. It is further stated that the applicant divorced his wife, respondent No,1, on 15-5-1997 but instead of leaving the house of the applicant, both the respondents, with the help of some criminal type persons, unlawfully dispossessed the applicant from the house, in question, However, the applicant also disentitled his sons and daughters born -out of the said wedlock on 22-5-1997 and also reported the matter to the police apprehending danger to his life and property but since the police did not take cognizance of the matter, the applicant filed complaint under section 145, Cr.P.C. Before the Assistant Commissioner/SDM, Eidgah on 25-5-1997 praying therein to restore the possession of the house, in question. The learned SDM admitted the matter to hearing, which order was impugned by respondents Nos.1 and 2 before the learned 1st Additional Sessions Judge, Karachi (South) through Criminal Miscellaneous Appeal No,36 of 1999 but the same was dismissed-by him.
2. ' However, the application, filed by the applicant before the learned SDM, Eidgah was dismissed as non-maintainable being barred by jurisdiction under section 145(4), Cr.P.C. And also in view of the fact that the case related to the civil nature. The applicant, however, impugned such order by filing Criminal Revision Application bearing No,16 of 2000 before learned 1st Additional Sessions Judge, Karachi (South) which was dismissed vide order dated 14-6-2000 and now the applicant has approached this Court impugning the said order invoking its inherent jurisdiction under section 561, Cr.P.C. Praying for setting aside the orders passed by the learned SDM, Eidgah as well as passed by learned 1st Additional Sessions Judge, Karachi (South) and restoration of possession of house, in question.
3. ' I have heard the learned counsel appearing on behalf of the applicant, respondents Nos.1 and 2 as well as learned counsel appearing on behalf of the State.
4. ' It has been contended by the learned counsel for the applicant that the learned SDM, Eidgah did not apply his judicial mind as lie was bound to hold enquiry and decide the matter on merits as per previous order of the learned 1st Additional District Judge (South) in Criminal Revision Application No,36 of 1999. It has, also, been contended that the case under section 145, Cr.P.C. In the light of the police report dated 22-5-1997 was within the jurisdiction of the learned SDM, Eidhah and he was bound as per law to restore the possession to the applicant. -Moreover, the learned 1st Additional District Judge did not discuss the reason given in the order of the learned SDM, Eidgah and simply decided the matter in negative for civil litigation i,e, two civil suits filed by respondents Nos.1 and 2 against the applicant that, too, were dismissed. Lastly, it has been argued that no civil suits were pending between the parties at the time of passing order by the learned S.D.M.
5. ' On the other hand, learned counsel for respondents Nos.1 and 2 has contended that the application under section 145, Cr.P.C. Was admittedly filed beyond stipulated period of 60 days, hence the learned S.D.M. Became functus officio to exercise the power for restoration of the premises inasmuch as the applicant divorced his wife i,e, respondent No,1 one year back and since after divorce the respondents Nos.1 and 2 had occupied the same plot.
6. ' Learned counsel for the State has adopted the arguments, advanced by the learned counsel for respondents Nos. 1 and 2.
7. Admittedly, the applicant divorced his wife on 15-5-1997 and disinherited his sons and daughters .
8. On 22-5-1997 immediately whereafter, according to applicant's own version, his ex-wife and son, with the help of some criminal type persons unlawfully dispossessed him for which he reported the matter to police immediately and ultimately after about two years i,e, on 25-5-1999 he filed application before the SDM, Eidgah for restoration of possession of the house, in question, to him which application was rejected on the ground, inter alia, that jurisdiction of the trial Court was barred by section 145(4), Cr.P.C. For the sake of convenience relevant clause of section 145, Cr.P.C. Is reproduced hereinbelow:-- "145. Procedure where dispute concerning land etc. Is likely to cause breach of peace.-- (1)
9. Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class is satisfied from a police report or other information that a dispute like to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) ..............................................................................................................................
(3) ..........................................................................................................................
(4) Inquiry as to possession.---The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess 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: ' Provided that, 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, he may treat the party so dispossessed as if he had been in possession at such date: ' Provided also, that if the Magistrate considers the cases one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
(10) ........................................................................................
10. The perusal of the relevant clause of section 145, Cr.P.C. Clearly shows that 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, he may treat the party so dispossessed as if he had been in possession at such date. In the present case, admittedly, the applicant was ousted from the house, in question, by his ex-wife and son on 15-5-1997 and he filed application for restoration of possession before the learned SDM, Eidgah on 25-5-1999 inasmuch as with the delay of about two years and such delay cannot be adjusted in view of the two months bar stipulated by subsection
(4) of section 145, Cr.P.C., under which the applicant himself sought restoration of possession of the house, in question. The proper forum for the applicant was to approach Civil Court for seeking relief in respect of possession of the disputed property.
11. ' Accordingly, I am of the considered view that this Criminal Miscellaneous Application does not merit, which is dismissed in limine.