1997 P Cr (PLP)

DR. GHOUS MUHAMMAD, J.

The applicant has challenged in this Criminal Miscellaneous Application under section 561-A, Cr.P.C. the orders, dated 21-5-1-996 and 23-1-1995 passed by the learned 1st Additional Sessions Judge, Karachi West (in Criminal Revision No.5 of 1996) and the learned Assistant Commissioner/S.D.M. Harbour Karachi East (in Case No. Nil of 1995) Kamaluddin v. Bismillah Khan) respectively. The learned Magistrate had vide, order, dated 14-11-1995 under section 145(1), Cr.P.C. directed the parties to appear before him on 30-1-1995 and to file written statements. Briefly stated the facts as alleged in the application under section

145. Cr.P.C. submitted by respondent No.1 namely Kamaluddin in the Court of learned S.D.M., are that on 2-7-1993, his mother-in-law had purchased an open plot from one Tafazul Hussain and she invested Rs.28,000 for construction of three small rooms. However, the present applicant allegedly extended threats, therefore, the matter was reported to the police under section 448/506, P.P.C, and the case was registered vide F.I.R. No.34 of 1996. The mother-in-law of respondent No.1 died on 3-4-1994 but on 2-9-1994 the applicant alongwith 20/25 persons broke the lock of the house situated at Muhammadi Colony and dispossessed the respondent No. 1 The learned Magistrate obtained report from the concerned police station, which was submitted on 30-10-1994. After perusal of the police papers, the learned S.D.M. on 14-11-1994 ordered for registration of the case and issuance of notice to both the parties under section 145(1), Cr.P.C. The applicant being aggrieved by this order preferred Criminal Revision No.5 of 1996, which was dismissed by the learned 1st Additional Sessions Judge, Karachi West on 21-5-1996. I have heard Mr. Mehmood A. Qureshi, learned counsel for the applicant, Mr. Azizur Rehman Shaikh, learned counsel for the State and perused the record. None appeared for the respondent No.

1. The sole point urged by the learned counsel for the applicant was that it is alleged that the respondent No. 1 had been dispossessed from the property in question on 2-9-1994 while notice under section 145(1), Cr.P.C. was issued to the applicant on 23-1-1995 i.e. after delay of four months, therefore, the order/notice issued by the learned S.D.M. is illegal and Void abinitio. He further submitted that the learned Magistrate committed illegality by taking cognizance of proceedings under section 145, Cr.P.C. when the alleged dispossession of the respondent No.1 took place more than two months before passing the preliminary order under section 145(1), Cr.P.C. The learned State Counsel, conceded to the quashment of the proceedings. It would be advantageous to reproduce the operative part of the impugned order passed by the learned appellate Court. ".... After perusal of the said report the learned Magistrate has issued notices to both the parties for submission of written statement in respect of their claims vide order, dated 23-1-1995. The perusal of the record shows that written statements were filed by the both parties. Further more the learned trial Court has not passed final order regarding attachment or sealing of the said property as requires under section 145(4), Cr.P.C. The trial Court has passed order under section 145(1), Cr.P.C. and has not done any material illegality or irregularity while passing impugned order. The case-law cited by the Advocate for the applicant/accused does not support his contention as the facts of the case-law are distinguishable with the facts of this case. In the present case learned trial Court has not taken any cognizance under section 145(4), Cr.P.C, nor passed any preliminary order for attaching or sealing the property but only directed the parties, to submit their written statement. So no illegal order was passed by learned trial Court, I am of the view that since the impugned order was complied with both the parties even, after expiry of two months therefore, Criminal Revision is not maintainable. Hence I maintain the impugned order, dated 23-1-1995 and dismiss the Criminal Revision. Keeping in view the provisions of section 145, Cr.P.C. in my humble view the impugned order passed by the learned appellate Court is unsustainable in law. It is not always necessary that a final order regarding attachment or sealing should be passed by the learned Magistrate, which may be treated as preliminary order. The learned Magistrate in his preliminary order has to state grounds for being satisfied that there exist a dispute likely to cause breach of peace and also to direct the parties concerned to attend his Court in person or by a counsel within the time to be fixed by him or to put any written statement of their respective claims in respect of actual possession of subject of dispute. It is not necessary that it should be in a particular form. The legal position is that the person dispossessed could be treated as in possession on the date of preliminary order only if he had been dispossessed within two months of that date. According to respondent No.1 he was dispossessed on 2-9-1994. Order for registration of case, after perusal of police report, was passed on 14-11-1994 while order under section 145(1), Cr.P.C. yeas passed on 23-1-1995. That being so, the learned Magistrate even after full inquiry would not be competent to put the respondent No.1 in possession of the house in dispute and no useful purpose would be served by allowing the learned S.D.M. to complete the proceedings by recording evidence. Therefore, following the law laid down its Dobondra Chandra Sarkar v. Khadarm Songma PLD 1951 Dacca 59, Muhammad Sultan v. Allah Ditta 1976 PCr.LJ 95, Fazaldin v. State 1982 PCr.LJ 277, Habib Bank Ltd. v. Board of Trustees etc. 1994 MLD 751 and Haji Sher Hassan Khan v. Hidayatullah and others 1996 SCMR 1476, this application is allowed and the proceedings under section 145, Cr.P.C. are quashed. N.H.Q./B-22/K Proceedings quashed.