This is an application under section 561-A of Cr. P. C. For quash--ment of the proceedings in a case filed on a direct complaint, as well as, police report received from the S. H. O., Jamshed Quarters for which the process was issued under section 341, P. P. C.
2. The facts of the case, briefly are that the applicants are brothers inter se. So are the respondents 2, 3 and 4. The double-storeyed Bungalow No. JM 504, situated in Shikarpur Colony, Karachi was an evacuee property. It was transferred by the Settlement Department in favour of Shaikh Ghulam Ahmad father of respondents Nos. 2, 3 and 4. He occupied only the ground floor. The first floor was in occupa--tion of Dr. Muhammad Ali Mistari, under an allotment order. After the death of Dr. Muhammad Ali Mistari, his brother Hussain Bhai Mistari, applied to the Settlement Department and the first floor of the Bungalow, along with the garrage and the construction thereon, was transferred in his name. Shaikh Ghulam Ahmad went to appeal against that order; but did not succeed. Consequently, he filed a Writ Petition in the High Court, which was also dismissed. Yet another Writ Petition No. 199/69, was filed, by the heirs of Shaikh Ghulam Ahmad Siddiqui, after his death, which was also dismissed on 23-1-1974.
3. On the application of Hussain Bhai Mistari, the Deputy Settle--ment Commissioner, had demarcated the open space, on the basis of the plan. Photostat copy whereof marked `HC' has been filed. He had, himself personally, inspected the site, in presence of the parties. The relevant portion of his order of demarcation reads as under: "I have inspected the site, in presence of the parties. This is a double-storeyed building, having a separate big compound, with three gates. The two gates, which are in the use of occupant of G/l, open on two different sides, i.e. One on North side, facing Bunder Road (M. A. Jinnah Road) while the other, opens on the side of Firozsha Metha Road. The 3rd independent gate, which has access to first floor, is in the use of the occupant, transferee of 1/1. This gate also opens towards Firozsha Metha Road. The garrage, which is on the corner of Firozsha Road, has got its own gate, which is in exclusive use of the transferee of 1/1. The open space encircles the entire plinth area, in such a way, that it can't be demarcated according to the desire of the respective parties. The two plans submitted by the parties are different from each other.
In view of the above observations, and to facilitate the parties (both), the open Court yard, which lies between the garrage and main building, is hereby demarcated, as appeared (in red), which will go to Mr. Hussain Mistry, along with the area marked as EFG & H, on the site plan, filed by Mst.
Tahira Begum. The rest of the open space around the bungalow, will go to Mst. Tahira Begum.
Moreover both the parties will use to enjoy the frights of easement and other facilities, which are provided in the house, and have been in common use of them."
4. Mst. Tahira Begum, widow of late Shaikh Ghulam Ahmad Siddiqui, preferred an appeal against the order of demarcation; before the Additional Settlement Commissioner, which was dismissed and the above order of the Deputy Settlement Commissioner was maintained.
5. The respondents continued to agitate the issue. A Civil Suit was filed for injunction against the applicant No. 1, in the Court of XVth Civil Judge, Karachi and an ad interim injunction was obtained, which was vacated, subsequently, by the order dated 28-3-1978. An appeal against this order was preferred, which was also dismissed, by Vth Additional District & Sessions Judge on 25-7-1978.
6. Subsequently on 26-9-1978 a direct complaint under section 341, P. P. C. Was filed by the respondent No. 1 (Shaikh Niaz Ahmad Siddiqui) against the applicant in the Court of Magistrate Ilaqa Jamshed Quarters, Karachi. It was alleged in the complaint that by virtue of demarcation order mentioned above, the stair case, leading to the first floor was demarcated in their favour which was used by them, for the last about 30 years and they had acquired easement rights. It was further alleged that the applicants had put an iron gate on the top floor, whereby the respondents and their family members were wrongfully restrained and were thus prevented from going to the terrace of the first floor, to which they claimed legal rights to use the same.
7. I have heard the learned counsel appearing on behalf of the parties as well as, the State Counsel.
Mr. Nazir Alam, who has supported the application.
8. The order of demarcation (Annex. B) does not make any mention about the stair-case, for the use of the terrace, having been demarcated in favour of the respondents. The judgment in Petition No. 199/69, as well a3 the orders, Annexures E, F, G and H do not make any such reference, of the staircase, entitling the respondents and their family members to the use of such a stair-case for going to the terrace.
9. The admitted position is that the iron gate was put up and fixed at the entrance on the first floor to the terrace. The first floor is agreed to be in exclusive possession of the applicants, who alone have the access to the terrace. Under these circumstances, there is no question of wrongful restraint of the respondents. Wrongful restraint is defined under section 339, P. P. C.
"That whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed."
10. From the facts discussed above, no ingredient of the offence o wrongful restraint, as alleged, has been made out in the complaint. The documents, on the record, which have been admitted, by both the learned counsel, are clear proof of it. The litigation between the parties, in respect of the same property, is already pending in the Civil Court where the fact of putting up the iron gate, has nowhere been disclosed though the gate was already put up before the litigation referred to here in above was started between the parties. From the circumstances of the case discussed above it is evident that the case against the applicants will not succeed, and is certain to end in the acquittal of the applicants. I am persuaded to believe that the direct complaint, as well as, the police report, on the basis of which, the proceedings have been instituted and cognizance of the offence under section 341, P. P. C. Was taken, are filed in order to harass the applicants and amount to an abuse of the process of the Court.
11. As a result of the above discussion, I quash the proceedings started on the direct complaint merged with the report, received from the S. H. O. Jamshed Quarters, entitled, Shaikh Niaz Ahmad Siddiqui v. Ghulam Jilani and another" pending in the Court of Magistrate Ilaqa Jamshed Quarters.