1990 P Cr (PLP)

Applicant Harz Mohammad Hussain has moved this application under section 561‑A of Cr.P.C. for quashment of two orders, one passed on 17‑8‑1988 by the Sub‑Divisional Magistrate, Bin Qasim, directing possession of the disputed quarter to be given to Mohammad Hussain respondent No. 2, and the other passed on 24‑9‑1988 by the Third Additional Sessions Judge, Karachi East maintaining former order dated 17‑8‑1988.

2. There has been civil as well as criminal litigation between the petitioner and Mohammad Hussain respondent No.2, in respect of quarter No. 148 Landh Colony, Karachi. Case of the petitioner was that he purchased the quarter it dispute in name of his son Shahid Hussain for Rs.7,000 under an agreement dated 28‑8‑1966 from Abbas Khan son of respondent No.2. Mohammad Hussain and obtained its physical possession with the title deeds after paying amount of consideration. Petitioner Hafiz. Mohammad Hussain lodged F.I.R. No.302/68 on 13‑10‑1968 with Police Station Landhi Colony alleging that opponent No.2 and four others had constructed four shops which were let out to tenants. Landhi Police initiated proceedings under section 145, Cr.P.C. in Court of the SDM Landhi in respect of the disputed quarter.

3. Learned Sub‑Divisional Magistrate took cognizance of the matter and called upon the parties to file written statements and other documents. He ordered attachment of the disputed quarter. Respondent No.2 moved this Court under section 561‑A of Cr.P.C. for quashment of proceedings under section 145, Cr.P.C., but his petition was dismissed on 1‑6‑1982 by a learned Single Judge of this Court who allowed the Court of S.D.M. to exercise the jurisdiction vesting it within the meaning of section 145, Cr.P.C.

4. The proceedings under section 145, Cr.P.C. went on being transferred from Court to Court. Learned Sub‑Divisional Magistrate, Bin Qasim, to whose Court the matter was transferred, passed the final order dated 17‑8‑1988 declaring respondent No.2 (Mohammad Hussain) to be entitled to possession thereof till evicted in due course of law. Said order dated 17‑8‑1988, was maintained in Criminal Revision No.60 of 1988 by learned IIIrd Additional Sessions Judge, Karachi East, who dismissed the Revision on 24‑9‑1988. Both these orders dated 17‑8‑1988 and 24‑9‑1988 have been challenged in this petition and are sought,, to be quashed.

5. There was also civil litigation between the parties. Abbas Khan son of respondent No.2 (Mohammad Hussain) filed Suit No.1060 of 1968 against (a) Harz Mohammad Hussain (Petitioner) and (b) Mohammad Hussain (Respondent No.2) and (c) Shahid Hussain (son of the petitioner for issue of permanent injunction restraining them for selling or disposing of the Quarter in dispute. The said suit was dismissed by Xth Civil Judge, Karachi on 27‑2‑1975 Abbas Khan filed Civil Appeal No. 37 of 1975 challenging dismissal of his Suit No.1060 of 1968. Said appeal was allowed on 13‑3‑1980 by the 1st Additional District Judge Karachi, who set aside the judgment dated 27‑2‑1975 and its decree. The petitioner filed Revision Application No.72/80 in this Court against the judgment dated 13‑3‑1980 but the same was dismissed on 4‑2‑1981 by my learned brother Mr. Mohammad Zahoorul Haq, J. (as he then was). The petitioner and his son Shahid Hussain filed a Civil Suit in the High Court against Abbas Khan (son of respondent No.2) for declaration that the sale agreement executed on 24‑8‑1966 by Abbas in favour of Shahid Hussain in respect of the disputed quarter was valid and binding on him (Abbas). They also sought direction for Abbas to convey/transfer by way of registered sale deed the quarter in question to Shahid Hussain. Said suit remain to be decided.

6. I have' heard Mr. Ansar Hussain, Advocate for the applicant, Mr. S. Azizul Hassan Advocate for the opponent No.2 and Mr. Laeeq Ahmed Advocate for the State. 7.? At the outset learned counsel for the applicant was called upon to show, as to how the revisional order of the Additional Sessions Judge can be set aside under the inherent powers of this Court. In reply learned counsel cited the case of Mohammad Shafiq and others v. Abdul Hayee and others reported as 1987 S C M R 1371. Learned counsel for the applicant argued that the F.I.R. (copy at page 153) filed by the applicant showed that he was disposed on 13‑10‑1968. Locus standi of the respondent No.2 to enter in the quarter in dispute was challenged on the ground that he was only father of Abbas, who owned the quarter and who sold it to Shahid. It was alleged that learned SDM had failed to appreciate that the respondent No.2 had no locus standi. Learned counsel for the applicant relied on certain observations made in judgments of the Civil Courts (copies at pages 93, 121 and 129) to the effect that the applicant had acquired title in the disputed quarter and argued that the applicant entered the quarter as bona fide purchaser in name of his son Shahid. It was further argued that possession of the applicant over the quarter was to remain undisturbed in view of concurrent findings of the Civil Courts. 1n this respect reliance was placed on case of Shah Mohammad v. Haq Nawaz P L D 1970 SC

470. It was also argued that the applicant had inducted tenants in some tenements of the disputed property (copies of rent receipts put in the file at pages 175, 177 and 181) and hence it would be impracticable for him to get vacated the premises for passing on possession of the same to the respondent No.2. Lastly it was argued that the S.D.M. had indicated his personal interest in the matter and that he had taken into consideration the extraneous circumstances, while passing the impugned order dated 17‑8‑1988 (copy at page 25). Learned counsel for the applicant relied on the cases of (1) Shah Mohammad v. Haq Nawaz & others P L D 1970 SC 470 (ii) Mohammad Shafiq & others v. Abdul Hayee and others 1987 S C M R 1371 (iii) Shamsul Oamar v. State 1984 P Cr. L J 504 Dinal and others. v. Mian Najamuddin and another 1984 P Cr. L J 1615 Abdul Aziz v. State and another 1985 P Cr. L J 1615 and (vi) Ghaniur Rahman v. State 1985 P Cr. L J 177.

8. Learned counsel for the respondent No.2 conceded that the application for quashment was maintainable in view of the case reported as 1987 S C M R 1371. It was argued that the petitioner had failed to prove if he had purchased the quarter in dispute. The learned counsel conceded that title was immaterial in proceedings under section 145, Cr.P.C. but stressed on the point that the applicant had not been able to prove a pre‑condition for initiating of proceedings under section

145. Cr.P.C. viz. that he was dispossessed within two months of the order of the SDM passed under section 145, Cr.P.C. It was argued that no date of dispossession was given in order of the Sub‑Divisional Magistrate, dated 7‑8‑1983 (copy at page 55). It was further argued that possession of the disputed quarter was taken over from the respondent No.2 and consequently the possession was to be restored to him. It was also argued that there was no apprehension of breach of peace necessitating the action under section 145, Cr.P.C. The learned counsel cited the cases of (1) Mohammad Shafiq and others v. Abdul Hayee and others 1987 S C M R 1371, (ii) Mohammad Umer and another v. State and others P L D 1987 Kar. 378,1987 P Cr. L J

179. Learned counsel for the State agreed with learned counsel for the respondent No.2 that date of dispossession was not given anywhere, not even in the F.I.R. and that there was no evidence about dispossession of the applicant. Lastly learned counsel argued that learned S.D.M. had rightly ordered restoration of possession to the party from whom it was taken.

10. At the outset I would consider if this petition under section 561‑A of Cr.P.C is maintainable when revision application under Section 439‑A of Cr, P.C. has been decided by a learned Additional Sessions Judge. In case of Sardar Ali v. State P L D 1987 Lah. 633 the view taken was that when the Sessions Judge has made an order in the exercise of his revisional jurisdiction it is not open to the High Court to entertain proceedings by way of revision against the order of the Sessions Judge, whose order is final and thus no revision lies to the High Court. It was observed that in spite of disposal of the revision by the Sessions Judge, if the High Court, in exercise of its inherent power under section 561‑A, Cr.P.C. differs it with the Sessions Judge on a finding of fact or law and cancels or quashes his order or proceedings it would amount to defeating the legislative intent, which was that what the Sessions .Judge was empowered to do with respect to an order of the Magistrate, the High Court was not empowered to do with respect to the order of the Sessions Judge, competently made and thus the residuary section 561‑A, Cr.P.C. cannot be so invoked as to frustrate the High Court. Contrary view was expressed in the case of Abdul Aziz v. State and another 1985 P Cr. L J 1615 where the view taken was that inherent jurisdiction of the High Court conferred by section 561‑A, Cr.P.C. could not be refused merely because aggrieved party already exhausted alternate remedy by filing petition before the Sessions Judge under Section 439‑A of Cr.P.C. Similar view was taken by a Division Bench of this Court in the case of Dinal and others v. Mian Najamuddin and another '1964 P Cr. L J 193 where it was observed that exercise of extraordinary jurisdiction conferred by section 561‑A, Cr.P.C. cannot be refused merely because aggrieved party has already exhausted remedy by filing revision petition under section 439‑A of Cr.P.C. A some what similar view was taken by Peshawar High Court in the case of Shamsul Oamar v. State 1984 P Cr. L J

504. The Supreme Court of Pakistan in the case of Mohammad Shafiq and others v. Abdul Hayee arid others 1987 S C M R 1371 endorsed the view expressed by this Court and by Plshawar High Court as against the view taken by the Lahore High t'ourt and observed that the powers possessed by the High Court under section 435/439 of Cr.P.C. do not impinge,. curtail or limit in any manner whatsoever the powers under section 561‑A of Cr.P.C. 1, therefore, hold that the petition is maintainable.

11. It is a settled position of law that the powers of Criminal Courts in proceedings under section 145, Cr.P.C. in respect of the immovable property, which is subject matter of such proceedings, are subordinate to the powers of the B civil Courts, which have dealt with the same property. In the case of Shah Mohammad v. Haq Nawaz P L D 1970 SC 470 it was held that a Magistrate cannot under section 145, Cr.P.C. act in violation of a decree or the terms of an order passed by a Civil Court during the trial of a suit and that the proceedings under section 145, Cr.P.C. are subordinate to a decree or order passed by a Civil Court in respect of the property in dispute before the Magistrate. In the case of Dinal and others v. Mian Najamuddin, it was observed that the proceedings under section 145, Cr.P.C. must yield to the civil litigation about the same property. In the instant case it was Abbas Khan son of respondent No.2 who invoked without any success jurisdiction of the Civil Court. He however, succeeded in the lower appellate Court where he got a favourable order, from the First Additional District Judge, who held that Abbas Khan was entitled to the relief of permanent injunction restraining the petitioner and the respondent No.2 and Shahid Hussain from selling the disputed property. Learned 1st. Additional District Judge in his judgment found that the petitioner Harz Mohammad Hussain (respondent No.2 in appeal) had acquired title, right and interest in the disputed quarter and that he did not obtain possession of the quarter by fraud but he was given possession by Abbas Khan for business purposes. In the civil revision application learned Single Judge observed as below. "I cannot however, refrain from observing that circumstances of the case showed that Harz Mohammad Hussain had entered into possession of the house under cover of his claim." After making such observation learned Single Judge held that possession of Hartz Mohammad Hussain remained undisturbed. In view of the above facts the petitioner was not found to be a trespasser in the disputed property but he was found to have occupied the said property lawfully with the consent of its C owners. In the circumstances the criminal Court could not have ordered possession of the disputed premises, to be taken over from the petitioner and to be handed over to the respondent No.2.

12. In the case of Mehar Mohammad Sarwar and others v. The State P L D 1985 SC 240 it was held that when possession of property is regulated by a Civil Court even through a temporary injunction, the matter falls outside the jurisdiction of a Magistrate in proceedings under section 145, Cr.P.C. relating to the same property. In the case of Mohammad Hussain and another v. The State 1986 P Cr. L J 1198 the view taken was that when Civil Court was seized of subject‑matter of dispute and had passed an order regulating possession of such property the criminal Court would have no jurisdiction under section 145, Cr.P.C. to deal with the possession of the same property. In the case of Abdul Aziz v. The State 1985 P Cr. L J 1615 the proceedings under section 145, Cr.P.C. were quashed and possession of the premises was ordered to be restored to the tenant when the petition before the Sub‑Divisional Magistrate under section 14 5, Cr.P.C. was filed by the landlord with a view to take possession of the shop leased out to the tenant.

13. Now I deal with the authorities cited by the learned counsel for respondent No.2. In the case of Mohammad Shafiq and others v. Abdul Hayee and others 1987 S C M R 1371 it was observed that it was immaterial for the purpose of assuming jurisdiction by a Magistrate under section 145, Cr.P.C. as to how he came to know of the fact that a dispute likely to cause breach of peace existed in respect of immovable property and that restoration of possession cannot be ordered if dispossession had not taken place within two months from the order passed by the Magistrate under section 145(1), Cr.P.C. The onus was on the respondent No.2 to establish that he was dispossessed within two months of the passing of the order under section 145, Cr.P.C. such proof is lacking.

14. In the case of Mohammad Umar and others v The State P L D 1987 Kar. 378 the proceedings under section 145, Cr.P.C. were quashed because none of the witnesses stated about any likelihood of breach of peace and there was no order by Magistrate under section 145(1) of Cr.P.C. as to any likelihood of breach of peace existing and no such ground was given by the Magistrate who did not come to the conclusion of any likelihood of danger of breach of peace. In the case of Mst. Rasheeda Begum v The State and another 1987 P Cr. L J 279 the preliminary order under section 145(1), Cr.P.C. passed by the Magistrate, did not disclose any apprehension of breach of peace concerning the property in dispute and there was no other material available on record indicating any necessary for proceedings in the matter under section 145(1), Cr.P.C. and the applicant was in possession of the disputed property at the time of passing of the impugned order and there was no allegation that possession of the disputed property was acquired by the applicant within two months of passing of the order under section 145(1), Cr.P.C. on said grounds the proceedings were quashed and it was observed that civil right cannot be settled through summary procedure laid down in section 145, Cr.P.C. None of these authorities helps case of the opponent No.2. In view of above discussion, I am of the view that the two Criminal Courts erred in ordering possession of the quarter to be given to respondent 1l) No.2, as such orders were in conflict with the finding given by the Civil Courts. I therefore accept this application and quash the impugned orders. N.H.Q/M‑934/K???????? ???????????????????????????????????????????????????????????? ?????????????????Petition accepted.