P L D 1965 (W (PLP)

Abdul Hakim for Sh. A. Ghani for Respondent No.

3. Date of hearing: 19th June 1964. This is a reference under sections 435 and 439, Cr. P. C. by the Additional Sessions Judge, Karachi, Mr. Fazle Elahi Ansari, recommending to this Court that the proceedings in the Court of the Magistrate be quashed. The material facts of this long drawn‑out litigation may be briefly stated in so far as they are relevant for the purposes of deciding this reference.

2. The dispute relates to a house bearing No. NP. 7/8, Ganga Ram Building, Ghulam Hussain Street, Karachi. Haji Abdul Sattar, respondent No. 3 in this reference, claimed that he was the tenant of this house for many many years before Partition after which the Hindu owner having migrated the property vested into the Custodian by whom he was recognized as the occupant and to whom he had also paid rent. The respondent No. 1, Abdul Sattar, was the servant of Haji Abdul Sattar, respondent No. 3, ever since he was a boy and he was accommodated in a part of this house as a licensee. Haji Abdul Sattar constructed his own house about the year 1950 and shifted to it. He, however, maintained his occupation of a portion of this house where he kept his things under lock and key. Differences arose between Haji Abdul Sattar and Abdul Sattar about the year 1959 with the result that Haji Abdul Sattar dismissed Abdul Sattar from service in October 1959. It is the case of Haji Abdul Sattar that Abdul Sattar and his brother Khalil wrongfully broke open the lock of the portion of the house where his things were kept on the 8th of June 1960 upon which a complaint under sections 448 and 403, P. P. C. was filed by Haji Abdul Sattar in the Court of the A. C. M., Karachi, on the 16th of June 1960. It appears that the Magistrate who entertained the complaint had in the first instance ordered the sealing of the portion where the goods were kept but later on it is common ground that the goods of Haji Abdul Sattar which were lying in the premises were handed over to him. That being done he apprehended that Abdul Sattar would thereafter have full control over the whole house and attempted to assert his possession over the portion which had formerly contained his goods and this being opposed violently by Abdul Sattar and his brother, Haji Abdul Sattar filed an application on the 21st of July 1960 under section 145, Cr. P. C., claiming that he was in possession of the property and that there was imminent danger of breach of peace because the other side was threatening to use force and in fact had used force against his servants. Upon this complaint having been filed in the Court of the S. D. M., Mr. Abrar Hassan Khan, the learned Magistrate passed an order on the margin of the application purporting to be under section 145 (1), Cr. P. C. The order may be reproduced:‑-- "Applicant Haji Abdul Sattar, son of Rehmatullah present with his counsel. Heard. Issue notice to both the parties under section 145, Cr. P. C. to show cause regarding their respective possession. (Sd.) 26‑7‑1960." On the same day, he passed another order which reads:‑-- "Let the rooms shown on the sketch in blue black be sealed till further orders. Issue letter to the S. H. O., Napier, accordingly." This Order was communicated to the Napier Police who sealed the premises. However, Haji Abdul Sattar was said to have been absent on the 24th of August 1960 and the learned A. C. M. vacated the order under section 145 (1), Cr. P. C. as a result of which the premises were unsealed. Haji Abdul Sattar challenged this order by revision before the Additional District Magistrate which revision was accepted by an order dated the 7th of December 1960 and the case was sent back to the file of another A. C. M. However, no step was taken by Haji Abdul Sattar to have the premises sealed once again so that after the unsealing the physical possession of the premises had been with Abdul Sattar. In consequence of the order of the learned A. D. M. the proceedings eventually came before Mr. Birjis Qadar, A. C. M., Karachi, before whom a preliminary objection was taken on behalf of Abdul Sattar that in so far as the property was an evacuee property the criminal Court or for that matter any Court had no jurisdiction to pass any kind of order in respect of that property. This objection was overruled by an elaborate order passed by the learned Magistrate on the 2nd of September 1961. It was against this that Abdul Sattar took the matter in revision to the Court of the Additional Sessions Judge who has made the reference which is now before me.

3. The learned Judge has recommended the quashment of the proceedings on two grounds, firstly, that the order under section 145 (1), Cr. P. C, dated the 22nd July 1960, passed by the S. D. M.. Mr. Abrar Hassan Khan, which still held the field was not an order in accordance with law and, secondly, that even if the property was not an evacuee property it was still an "acquired property" (by virtue of a Notification under section 3 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958) and the criminal Court had no jurisdiction to pass an Order under section 145, Cr. P. C. in respect of that property.

4. We may now divert to a few other facts which do not clearly appear on the record but which were admitted at the bar. These are material for the determination of this case. This property was acquired by the Central Government by virtue of a notification under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Thereafter the property vested into the Central Government and became the subject‑matter of transfer under the Displaced Persons (Compensation and Rehabilitation) Act. It was stated by Mr. S. A. Ashfaq, the learned counsel for respondents 1 and 2, that Abdul Sattar had applied for the transfer of this house to the Settlement Authorities and he had actually been granted a provisional transfer order. However, this provisional order was cancelled on the 25th of November 1963 by the Additional Settlement Commissioner upon the ground that Abdul Sattar to whom the P. T. O. had been issued was not entitled to transfer of this house inasmuch as he was not in undisputed possession of it on the material date, i. e., the 20th December 1958. Of course Abdul Sattar had never claimed to be the allottee of this house. On the cancellation of his P. T. O. Abdul Sattar took the matter in appeal to the Settlement Commissioner which appeal was dismissed on the 7th of April 1964. He has now filed a writ petition in this Court being Petition No. 329 of 1964 challenging the validity of the cancellation of his P. T. O. That petition is still pending in this Court.

5. Reverting again to the grounds upon which the learned Additional Sessions Judge has recommended the quashment of the proceedings as to the first one, though in my opinion, the Order dated the 22nd of July 1960 is not in accordance with law yet that would not justify the quashing of the whole proceedings. When that Order is set aside the complaint would still be there and in that complaint an allegation of the apprehension of the breach of peace has been very categorically made. The learned Additional Sessions Judge has overlooked that part of the petition in which that allegation has been made. Mr. Abdul Kadir Shaikh, the learned Additional Advocate‑General, did not support this reference and he pointed out that there are decided cases in which it has been held that even if the Magistrate passing an Order under section 145 (1), Cr. P. C. does not expressly state the ground of satisfaction as to the apprehension of breach of peace the order can still be supported if there are other materials which would show that the Magistrate in fact was satisfied as regards such a danger. It is, however, quite clear to me that section 145 (1), Cr. P. C. makes an imperative provision requiring the Magistrate to state the grounds of his being satisfied that a dispute likely to cause a breach of peace exists. The reason for this is obvious. The criminal Courts are not expected to decide disputes of civil nature relating to possession over immovable property. That is the function of the civil Court. ,q They acquire jurisdiction only when there is apprehension of breach of peace. That being so it must appear from the order of the Magistrate that he had applied his mind to the question as regards the breach of peace because it is the existence of such a dispute which gives him jurisdiction to entertain the matter. This element is completely absent from the order dated the 22nd July 1960 passed by the learned Magistrate. That Order must therefore be set aside. There would still, however, be the complaint. The question for consideration before me is whether this dispute should now be allowed to go on in the criminal Court. There is considerable force in the argument that section 25 of the Displaced Persons (Compensation and Rehabilitation) Act bars the jurisdiction of the criminal Court in respect of a property which has been acquired by the Central Government. Section 25 reads as follows: "

25. Bar of Jurisdiction. Save as otherwise provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Central Government or an Officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act." The argument is that in so far as section 29 of the Act empowers the Settlement Commissioner to take action for ejectment of any person in possession of a property which is vested in the Central Government in a fit case, it must be held that the latter part of section 25 of the Act would bar the jurisdiction of the criminal Court. It is urged that the word "in respect of any action taken or to be taken" include an action by the Settlement Authorities under section 29 of the Act. Two judgments have been cited before me. These are Malik Muhammad Sharif v. The Crown (P L D 1954 Lah. 640) and S. A. Sattar v. Crown (P L D 1956 Kar. 138). These decisions, however, are not directly applicable. They arose under the provisions relating to administration of evacuee property which in material part is not in the same terms as section 25 of the Displaced Persons (Compensation and Rehabilitation) Act. These two decisions are with reference to section 12 of Ordinance No. XV of 1949 which is not in pari materia with section 25 of the. Displaced Persons (Compensation and Rehabilitation) Act. I have, however not found it necessary to decide the question of jurisdiction of the criminal Court because it appears to me that in view of the fact that not only that the P. T. O. of Abdul Sattar had been cancelled by the Settlement Authorities and the property has been put to auction and purchased by a third person and that all these matters are subject‑matter of the Writ Petition No. 329 of 1964 pending in this Court it would be an abuse of the process of the Court to allow the recommencement of 145 proceedings at this late date. No useful purpose can be served by the restarting of those proceedings.

6. For the reasons given I accept the operative part of the reference and quash the proceedings. This order should not be understood to have adversely affected any right of Haji Abdul Sattar assuming that he has any. S.Q. Reference accepted.