1987 PLP r (PCRLJ)

Syed Nasiruddin for Applicants. Qutubuddin Ghori (absent) for Respondents. G . R . Warsi for the State. Date of hearing: 12th August, 1986. An application under section 145, Cr.P.C. was moved by Muhammad Ibrahim and others in the Court of Sub‑Divisional Magistrate Tando Adam wherein it was prayed that legal action against the opponents under section 145 be taken and they may be directed to ensure not to take law in their hands and also pass order of attachment of the properties lying on the disputed land. On the same day the learned Magistrate passed an order under section 145(1) and (4) stating therein that there is apprehension of breach of peace with a direction to the parties to file their written statements. He also appointed Assistant Mukhtiarkar as Receiver.

2. The applicants being aggrieved against the said order, dated 28‑4‑1983 have filed this Criminal Miscellaneous Application for quashment of the proceedings pending in the Court of the learned Magistrate.

3. Learned counsel for the applicants has submitted that the impugned order has been passed without any material. The learned Magistrate had not applied his conscious mind before initiating proceedings under section 145 and passing the attachment order. Counsel for the respondents is not present. Learned counsel appearing on behalf of the State has supported the contention of the learned counsel for the applicants and submitted that the impugned order has been passed on the basis of no material. Learned counsel has referred to Petition No. 76 of 1980 and in para. 4 of the petition it has been stated that the purchasers /petitioners are in lawful physical possession being purchasers and prior to this possession was with temporary allottee since partition. Interim order was passed in favour of the petitioners in Civil Petition 76 of 1980 and the learned counsel for the applicants has submitted that the applicants are in possession of the disputed property since then. Amjad is son of Applicant No. 2 and Akhtar and Rauf are maternal uncles of Amjad. Kazi is Hari of Akbar. That petition is still pending but stay has been granted and specifically it is stated that the possession is with the applicants. As the learned Magistrate has not complied with the provisions of section 145 and passed stereo typed order, the order cannot be sustained. Even otherwise as they had been granted in favour of the petitioners in Civil Petition No. 76 of 1980 and in that petition it has been specifically stated that the petitioners were in possession of the disputed property. The applicants were admittedly in possession of the disputed property more than two months prior to the passing of the impugned order. The petition is accepted. Proceedings under section 145 pending in the Court of Sub‑Divisional Magistrate, Tando Adam in the case of Muhammad Ibrahim and 3 others v. Barkat Bhatti and 5 others are quashed. S.G.D. Proceedings quashed.