P L D 1957 (W (PLP)

WAHIDUDDIN, J.

This revision petition was filed against two orders of the 12th Additional City Magistrate Karachi, dated 13th January 1956. On this date Mr. Ahmad Ullah, the learned Magistrate dismissed the application filed before him under section 145, Criminal P. C., and at the request of the parties, further ordered that the property in dispute be handed over to Mr. Ihsanul Hug, an arbitrator appointed by them for the settlement of their dispute. The learned Magistrate received an intimation on 12th January 1956, from the City Mukhtiarkar, Karachi, that there was land Revenue arrears against Mr. Akhtar Alain, one of the parties in the proceedings under section 145, Cr. P. C., and the goods lying in the sealed shop have been attached for the recovery of the said dues. The learned Magistrate in compliance with this order, ordered that the goods lying in the shop in dispute may be handed over to the auctioneer on behalf of the City Mukhtiarkar. Karachi for the recovery of the land revenue dues. The relevant orders are reproduced below: "Cases disposed of. Please write to the Police to hand over the said Articles to the auctioneer. (Sd.) Ahmedullah 12th A. C. M., Karachi 13-1-1956. Copy of the order dated 13th January 1956, extract from Magistrate's Diary. The parties state that they compounded their difference outside the Court. There is no apprehension of breach of peace. The application under section 145, Criminal P. C., is dismissed. Mr. Ihsanul Haq, Advocate has been appoint ed arbitrator by the parties out of Court. The parties pray that the possession be handed over to him. Let it be so. Write to the Police. (Sd.) Ahmedullah 12th A. C. M:, Karachi 13-1-1956. (Sd.) Abdul Rahman. (Sd.) Akhtar Alam. (Sd.) Ghulam Ahmad." The petitioners have challenged the above-mentioned orders, on the ground that the learned Magistrate had no jurisdiction under section 145, Criminal P. C. to restore the possession of the property in dispute to a third party after cancelling the preliminary order issued by him. It was further urged that the learned Magistrate also had no juris diction to hand over the property lying in the shop in dispute to the City Muktiarkar for purposes of the recovery of the land revenue dues. According to the petitioner the property in dispute belonged to him and in the circumstances of the case the learned Magistrate was not justified to restore the cabin in dispute under section 145, Criminal P. C. I am not at all concerned at this stage about the propriety of the order passed by the learned Magistrate under section 145 (4), Criminal P. C. The only question for determination in the present case is whether the order of the learned Magistrate handing over the possession of the property to Mr. Ihsanul Haq was with or without jurisdiction. The learned counsel for the parties, the learned A. A. G., and at my request Mr. Tufail Ali has addressed me on this aspect of the question. There is no doubt in my mind that once the apprehension of the breach of the peace has disappeared, the only course open to the learned Magistrate acting under section 145 is to cancel the preliminary order of sealing the property or of issuing notice to the parties to show cause. They have no further jurisdiction to determine the question as to the party who is entitled to the possession of the property. They must stay their hands immediately the preliminary order is cancelled or proceedings under section 145, Criminal P. C. are dropped. In the present case the learned Magistrate after recording the statement of the parties ordered the cancellation of the order under section 145, Criminal P. C. This order was therefore, proper and legal. It may, however, be noted that under section 145 Criminal P. C. the Magistrates are not justified to refer the dispute between the parties for determination to the arbitrators. This practice has been condemned by the Court in the past and in future also it is the duty of the Magistrate to note that in such proceedings, arbitration should not be allowed to be made through the intervention of the Court. This was not done in the present case, and the learned Magistrates order on this ground cannot be attacked. The only question that remains for determination is whether the learned Magistrate was justified in ordering that the possession of the property be handed over to Mr. Ihsanul Haq as an arbitrator of the parties. When proceedings under section 145 ends or are dropped, then it becomes necessary for the Magistrate to pass ancillary orders for the purpose of winding up proceedings under section 145, Criminal P. C. Ordinarily it is the duty of the Magistrate to restore the possession of the property to the party from whom the possession was taken under section 145, Criminal P. C. He would have certainly no jurisdiction to hand over the property to a third party or to any other party except the one from whom the possession was taken at the time of the preliminary order was passed. If the learned Magistrate in this case would have suo moto ordered the handing over or delivery of the possession to Mr. Ihsanul Haq, then certainly such order would have been without jurisdiction. In the present case, however, the perusal of the record shows that the parties themselves requested the Court to hand over the possession of the property to Mr. Ihsanul Haq as their arbitrator. The learned counsel for the petitioners urged that his clients never consented to hand over the possession of the property to Mr. Ihsanul Haq. The record of the case in this respect is not correct and, therefore, the order in question should not be considered to be at the request of his clients. I have perused the record. It is signed by the petitioners and I see no reason to disbelieve the statement of the learned Magistrate that the order was made at the instance of the petitioners and the respondents. In the petition no allegation of fraud has been made. The only assertion is that the petitioner Ghulam Ahmed did not consent to any such order. It however appears that Ghulam Ahmad knows English and has signed the proceedings of the case on 13th January 1956 at the bottom of the said order. I am not prepared to believe the petitioners that they had not consented to the said order and hold that they were a consenting party. In such circumstances, as pointed out by Mr. Tufailali, the Magistrate while ordering that possession of the property may be handed over to Mr. Ihsanul Haq, was doing nothing more than passing an order to deliver possession of the property to the agent of the petitioners from whom possession of the property was taken at the time, Mien the order under section 145 (4) was passed. The question now is that the parties have resiled from the compromise and the petitioner wants that the order of the learned Magistrate, for this reason, should be set aside. I am only concerned to see whether the order passed in this connection on 13th January 1956, was proper or not. What has happened after that date and what position is adopted by the parties with regard to the property in dispute, has nothing to do with the merits of the case and will not and cannot affect the order of the learned Magistrate passed on the above-mentioned date. In my opinion the order of the learned Magistrate was proper and within his jurisdiction. The said order in the circumstances of the case cannot be attacked. It is open for the petitioners to go to the Civil Court and to take the necessary steps for the protection of their rights and interest in respect of the property in dispute. If they feel that the matter should not be decided by Mr. Ihsanul Haq as an arbitrator or that -the property should not be delivered to him and should be handed over to them, then it is. open to them to obtain the necessary orders from the Civil Court. So far as this Court is concerned, it cannot give or render any assistance to the petitioners for this purpose. The other question involved is whether the order passed by the City Mukhtiarkar, Karachi on 12th January 1956, attaching the movable property lying in the shop in dispute is proper or not and whether the learned Magistrate was justified in ordering that the movable property lying in the shop should be handed over to the auctioneer. I consider that when any immovable property is attached under section 145, Criminal P. C. then any movable property lying therein will be the subject-matter of the attachment. I have gone carefully through the record. Mr. Akhtar Alam was a party to the proceedings under section 145, Criminal P. C. and the property in dispute wash attached from his possession. As such the City Mukhtiarkar had jurisdiction to attach the property and the learned Magistrate was perfectly justified in carrying out the orders of the learned City Mukhtiarkar in this respect. It is open to the parties to approach the City Mukhtiarkar, Karachi and to file objections to establish that the order against them is illegal and should not be carried into effect, but that will be entirely in a separate proceeding. In the circumstances of the case, I hold that both the orders of the learned Magistrate, dated 13th January 1956, were legal, and as a result the petition is dismissed. The stay order issued is discharged. K. B. A./A. H. Petition dismissed.