P L D 1957 (W (PLP)

KAIKAUS, J.‑

This judgment will dispose of an application under section 561‑A, Criminal P. C., for quashing proceedings under section 145, Criminal P. C., pending in the Court of Mr. Manzur Ahmad Khan Leghari, Magistrate 1st Class, Sargodha. The allegations in the petition are that the petitioner, Sheikh Muhammad Zafar, and the respondent, Mirza Muhammad Saddiq, were both applicants for allotment of Arjan Singh Harmindar Singh Steel Rolling Factory, Amolak Nagar, Sargodha. It was allotted to the petitioner and possession of the factory was duly delivered to the petitioner on the 24th of May 1957, an inventory of goods lying in the factory having been prepared. On the next day, i.e., the 25th of May 1957, the respondent broke open the petitioner's lock and committed trespass into the factory at which the petitioner lodged a report with the police. The police, instead of proceeding with the investigation of the offence of trespass, started proceedings under section 107/145, Criminal P. C., and made a report to the Ilaqa Magistrate, as a result of which the learned Magistrate started proceedings under section 145, Criminal P. C., and regarding it as a case of emergency directed on the 13th of June 1957, that the factory be sealed and taken into possession by the police till further orders. The petition before me is based on two grounds. The first is that the factory in dispute being evacuee property no order under section 145 can be passed in respect of it in view of section 16 of the Pakistan (Administration of Evacuee Property) Act XII of 1957. The second is that this was not a case of dispute about immovable property, for possession of property had been properly delivered to the petitioner by an Inspector of the Rehabilitation Department and the trespass by the respondent into the factory did not make it a case of dispute over possession of immovable property. It is alleged in this connection that respond tit, having come to know of the report lodged by the petitioner, had left the premises. It will be unnecessary for me to go into the second ground, for obviously the learned Magistrate has no jurisdiction to pass an order under section 145, Criminal P. C., in respect of evacuee property on account of section 16 of the Pakistan (Administration of Evacuee Property) Act'. This matter was considered in Malik Muhammad Sharif v. Crown (P L D 1954 Lah. 640), by a Division Bench of this Court and it was held that the proceedings under section 145 in respect of evacuee property were incompetent. In fact it is conceded before me by both the parties that the proceedings in this case are without jurisdiction. I would, therefore, declare the proceedings before the learned Magistrate to be void. This does not, however, conclude the matter, for in execution of the order of attachment passed by the learned Magistrate the police has taken possession of the property in dispute and the question is as to whether any order with respect to restoration of possession of the property should be passed. Ordinarily, when it is found that some proceedings before a Court are without jurisdiction, the Court takes all steps to restore the status quo in order that its assumption of jurisdiction may not prejudice any person and it has inherent jurisdiction to undo all that it has done. Acting on this principle, the obvious order to pass in the present case would be to restore possession of the property to the person from whom it was taken. But the question is; can I pass an order directing that the possession of this property be delivered to the person from whom it was taken ? Will not such an order be open to the same objection on the oasis of which. I have held proceedings in the trial Court to be void, namely, that it contravenes section 16 of the Pakistan (Administration of Evacuee Property) Act ? It appears to me that while there is a bar to the passing of an odder with respect to evacuee property there is certainly no bar to the mere giving up of possession of the property by the Court and any directions which the Court may gibe or any orders which it may pass for the purpose of giving Up possession in a manner that restores the status quo are not hit by section 16 as they are merely ancillary to the giving up of possession. I had explained in Qamar‑uz‑Zaman Khan v. The Punjab Province (P L D 1955 Lah. 612), that every order which had some relation to evacuee property is not hit by section 16 of the Pakistan (Administration of Evacuee Property) Act, 1957 (section 12 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949). If that were so, even an order quashing proceedings under section 145 on the ground that the property in dispute is evacuee would be hit by section 16 because the order does relate to evacuee property. The words "in respect of" are not to be interpreted in their widest import and subject to a limitation the key to which is provided by the marginal note "Exemption from legal process". The object of the section was to prohibit the issue of any process with respect to evacuee property so that the administrative control of the Custodian may not be interfered with. i stated in that judgment that an order would be hit by this section only if it directed the doing of an act with respect to evacuee property. I stick to that definition but would explain that the mere undoing of something done by the Court under an assumed jurisdiction is not covered by that' definition. The object of the section being only to prohibit the issue of legal process with respect to Evacuee Property it is from that point of view that the legality of an order is to be judged. If the order is not intended to subject evacuee property to some kind of legal process the order is not hit by the section. The object of the order I am passing is only to get rid of the effect of invalid legal .4ocess. That orders like the present are not within section 16 will also appear if we consider a case of movable evacuee property which the Court has taken into custody. The Court shall have to pass some orders regarding its unauthorised custody and it could not have been the intention to .prohibit such orders. It is urged before me by learned counsel for the petitioner that I should myself go into the question of possession and should direct the delivery of possession to him. He complains that he has been unfairly stated by the police who are trying to help the opposite party and that if the matter is in any way affected by what the police does or reports, he would be at a great disadvantage. He has pointed out various facts on the file to establish the allegation that the police is siding with the opposite Party. He has referred to the report of the Assistant Sub Inspector under section 145, Criminal P. C., which is dated the 25th of May 1957, and in which it is stated that the opposite party had in his possession a stay order from the Rehabilitation Com missioner for bidding delivery of possession to the petitioner. Before me it has been conceded by the respondent that there could not have been such a stay order in his possession on the 25th of May, because even the appeal against the order of allotment was filed on the 26th of May and the stay order had in fact been obtained on the 27th. Learned counsel for the respondent concedes that this report could not have been made on the 25th of May 1957, but says the date may be 'due to a slip. It is obvious, however, that it could not be a slip for with this report is attached another application under section 145 for issue of an injunction and that application is dated the 25th of May 1957, and in the report it is mentioned that the application is attached. This application bears an endorsement by the Station House Officer which is dated the 26th of May, and learned counsel concedes that the application itself must have been written not later than the 26th of May 1957. It is significant too that in this application three witnesses are mentioned who are to be summoned for the purpose of proof of the case under section 145 and these three witnesses are the same who had been examined before the report under section 145 dated 25th May 1957, was made Another suspicious circumstance pointed out is that the respondent put in an application before the Assistant Sub‑Inspector in which he said that he had in his possession a stay order but he did not date this application. Learned counsel for the petitioner further refers to the statement in the report of the Assistant Sub‑Inspector that the petitioner had failed to produce before him the Rehabilita tion Inspector in order to prove that there was in fact in his favour an order of ejectment. This statement is truly surprising, for there can be little doubt that orders of allotment in favour of the petitioner did exist and so far as the question of actual delivery of possession is concerned the Assistant Sub‑Inspector could very well have recorded the statement of the Rehabilitation Inspector. It was certainly not the duty of the petitioner to produce the Rehabilitation Inspector, who is a Government servant before the Assistant Sub‑Inspector. I am not inclined, however, to accede to the request of learned counsel and to go into the question of possession myself. The question as to who was in possession is a matter which is to be decided by the learned Magistrate and I do not see why he should be affected by what the police may do. As a result, the application under section 561‑A is accepted and the proceedings before the learned Magistrate are quashed. The learned Magistrate will restore possession of the property in dispute to the person from whom it was taken so as to restore the status quo. It has been alleged before me that the key of the premises was taken from the petitioner. If that is so the key shall be returned to the petitioner. A.H. Petition accepted.