1991 PLP 2077 (MLD)

The petitioner through this Constitutional petition has challenged the action of police functionaries dated 30-1-1991, whereby he was thrown out of his petrol filling station at the behest of respondents No.2 and

3. Brief facts are that the petitioner entered into an agreement on 16-1-1986 with respondent No.4 Pakistan Burmah Shell Ltd. to install a petrol pump on a site belonging to respondent No.2 Muhammad Rafi which was already with the respondent company on lease. According to the terms of agreement, the petitioner was to complete construction of filling station as per drawing/specification approved by the company. It is the case of the petitioner that respondent No.2 who is the owner of the land was having covetous eyes on the flourishing business of the petitioner and accordingly a conspiracy was hatched to dislocate him from the filling station. The petitioner on coming to know of this nefarious design filed a declaratory suit before the learned Civil Court at Gujranwala on 30-1-1991 seeking protection of his right to continue at the filling station and secured a status quo order. The next date in the suit was fixed as 6-2-1991. However, respondent No.3 in surreptitious manner moved an application before the D.S.P. Sadar Circle, Gujranwala in the late hours on 30-1-1991 stating therein that the petitioner's dealership had already been cancelled in accordance with the clause of dealership agreement and the period of one month had already expired, as such he sought help of the police force to secure the possession from the petitioner. The D.S.P. marked this application on the same day to the S.H.O. who in turn deputed A.S.I. Munir Hussain alongwith police constables to accomplish this mission. It is evident from report No.21 recorded by Munir Hussain A.S.I. at 11-30 p.m. at Police Station Cantt., on 30-1-1991 that the possession of the petrol-pump was handed over to respondent Iftikhar Ahmad. Learned counsel for the petitioner has argued that the action of the police functionaries in securing the possession from the petitioner in this manner has got no sanction of law. It has also been pointed out that the status quo order was shown to the police functionaries but they had shown scant regard for the same and thrown the petitioner at roadside in a most cruel manner at odd hours of night. Reliance in this respect has been placed upon Karam Ali and others v. Raja and others PLD 1949 Lah. 100 and Mst. Ramzan Bibi v. Mst. Amina Bibi PLD 1970 Lah. 371 to contend that the status quo order would have effect the moment it was passed. Learned counsel for the respondents has argued that the police functionaries never interfered in this matter as their help was only secured in case of breach of peace. Since the possession was taken in a peaceful manner without any resistance, as such the question of police interference did not arise. According to him the police functionaries stood away from the filling station as silent spectators. It is further argued that the petitioner was only operating the pump and possession according to the clause of agreement was with the company and, therefore, with the termination of licence the petitioner had no locus standi to move this Constitutional petition. It has also been argued that since the matter is already pending adjudication before the Civil Court at Gujranwala, whose status quo order is alleged to have been violated, this writ petition would not be maintainable involving disputed questions of facts. Further argument has been 'advanced that the writ petition would not be competent for violation of any contractual liability. Reliance in this respect has been placed upon Mst. Nazir Begum and others v. Province of Pakistan and others PLD 1966 Lahore 195 and Miajan Ali v. Province of West Pakistan 1970 DLC

387. Rana Muhammad Arshad Khan learned Additional Advocate General has candidly stated that he is not in a position to defend this illegal action on the part of the police functionaries in dispossessing the petitioner. I have considered the contentions. It is not denied that the status quo order had already been passed by the Civil Court on 30-1-1991. The stance of the learned counsel for the respondents that no stutus quo order was ever shown either to private respondents or to the police functionaries does not appeal to reason in the circumstances of the case in hand. The application to the D.S.P. Sadar Circle, was submitted at 3-30 p.m. on 30-1-1991, as is evident from his reply filed in connection with the contempt matter. He directed the S.H.O. to provide police help in case of breach of peace. However, without there being any complaint respecting the breach of peace, the S.H.O. Police Station Cantt., deputed Munir Ahmad, A.S.I. alongwith other Constables at 4-00 p.m. the same day who in turn left the police station at 5-30 p.m. as is evident from report No.14 to accomplish the mission. Thereafter at 11-30 p.m. on the same day report No.21 was recorded by the aforesaid Munir Ahmad, A.S.I., according to which he delivered the possession of the disputed petrol-pump to respondent No.3, Sh. Iftikhar-ur-Rehman. The contents of report are as under:

From the narration above it is crystal clear that the police functionaries have exceeded their jurisdiction and have flouted the provisions of law in depriving the petitioner of his possession. There was no complaint of breach of peace from any side and as such the action of the police functionaries cannot be sustained. They have acted in a most brutal manner in depriving the petitioner of his valuable right. They have shown scant regard for the status quo order issued by the Civil Court. The argument that the writ petition is not maintainable, is devoid of any force. The petitioner has challenged the action of the police functionaries whose duty is to protect the citizens against all kinds of excesses from any corner. In this case instead of performing their duty strictly within the four corners of law, the guardians of law themselves sided with the law-breakers. They have acted in a most indecent haste and deprived the petitioner of his possession of the petrol-pump in spite of presence of status quo order issued by the Civil Court. The facturn of over-zealousness on their part is evident from the fact that the application was moved by respondent No.3 Iftikhar-ur-Rehman at 3-30 p.m. on 30-1-1991 and by 11-30 p.m. on the same day the illegal mission was completed. Consequently, I have got no alternative but to declare the whole action of respondent police functionaries in depriving the petitioner of his possession of filling station as illegal having got no sanction of law. It is hereby directed that the petitioner shall be put back in possession forthwith by the respondents police functionaries after preparing the inventory. There shall be no order as to costs. The D.I.-G. Gujranwala Range is also directed to initiate departmental action against overenthusiastic police functionaries who have flouted the law and acted in this manner in depriving the petitioner of his possession in spite of the status quo order issued from the Civil Court. The D.I: G. is further directed to inform the Registrar of this Court respecting the action taken against the miscreant police officials. M.BA./A-1410/L Order accordingly.