1988 P Cr (PLP)

4. It is the report that respondents after releasing on bail received summons of Civil Suit No.1155/1987, which was in fact filed on 14-6-1987 as a part of conspiracy by Malik Ehsan, Police Officer. It is alleged that on 18-6-1987, the matter was taken up by the Civil Court, where the petitioner filed an affidavit in which it was stated that shop was lying locked as keys were with the police, therefore, Civil Court ordered to maintain status quo. On 20-6-1987, petitioner Abdur Raheem, his sons and servants took over the possession of the shop in conspiracy with the Police. The threats were given by the petitioner and it is stated that dispute over possession of the said shop is likely to cause a breach of peace.

5. The Assistant Commissioner and S.D.M. after recording the statements of some witnesses of the respondents passed an order under section 145(4), Cr.P.C. and ordered that property should be attached as there appears imminent danger of breach of peace. The S.H.O. Artillery Maidan, Karachi received this order. He informed the Court that Civil Court has already granted status quo and in case shop is sealed it amounts to contempt of Court. In spite of that S.D.M. directed the Police to comply with his order, therefore, the possession of the shop was taker, from the petitioner and shop was sealed.

6. The petitioner immediately on 4-7-1987 through Advocate filed an application and requested the Court to deseal the premises in view of the status quo order passed by the Civil Court on 2-7-1987. The application was dismissed by the S.D.M by order, dated 8-7-1987.

7. Being aggrieved with the order of the Assistant Commissioner, the petitioner filed revision application under section 439-A, Cr.P.C. in the Court of learned Sessions Judge, Karachi (South), who set aside the attachment order passed by the S.D.M. and restored the possession to the petitioner and sent back the R&P to the lower Court for disposal of the case according to law.

8. The respondents filed Criminal Miscellaneous Application No 317/1987, by which the order of the learned Sessions Judge was challenged. Finally this revision application was not pressed by the respondents as such the order of the learned Sessions Judge was maintained and it was further directed to the S.D.M. (Trial Court) to proceed with the case if pending and decide within 3 months. Thereafter, the petitioner has filed this application.

9. I have heard Mr. Altafur Rehman, learned counsel for the petitioner. It is argued by the learned counsel that Civil Court granted status quo to the petitioner in Civil Suit No 1156/1987 on 20-6-1987. The proceedings under section 145, Cr.P.C. were entertained on 29-6-1987 when the petitioner was in possession of the shop and there was no imminent breach of peace as before that both the parties on proceedings under section 107, Cr.P.C. were taken into custody and released on bail by the S.D.M. It is argued that matter is of civil nature and civil suit was pending, therefore, learned S.D.M. had no jurisdiction to entertain the proceedings under section 145, Cr.P.C. It is argued that S.D.M. has violated the order of status quo of the Civil Court and forcibly dispossessed the petitioner by passing an order under section 145(4) though he was informed about the order .of the Court. It is submitted that proceedings have been taken with mala fide intention. He has referred to P L D 1970 SC

470. Mr. M.I. Memon, appearing for the respondents, has taken the legal plea that this quashment application is not competent on the ground that in earlier Criminal Miscellaneous Application this Court has ordered the S.D.M. to continue the proceedings and complete within 3 months. As such these proceedings amounts to review of the order and are barred. He referred to the cases reported in 1971 SCMR 618, P L D 1986 Lah. 294, A I R 1965 Maysore 224, 1985 PCr.LJ 578, P L D 1970 Kar. 737 and A I R 1928 Lah.

462. Mr. Hayat Qureshi, appearing for the State, has submitted that S.D.M.'s order under section 145, subsection (4), Cr.P.C. is illegal. It is submitted that S.D.M. has no jurisdiction to entertain such proceedings when it was pointed out that civil suit is pending and: status quo has been granted. It is submitted that at the relevant time when the proceedings under section 145, Cr.P.C were entertained, there was no breach of peace as police had already taken action long ago and petitioner was in possession. It is argued by the learned counsel that S.D.M. has wrongly assumed the jurisdiction and it is a case of highhandedness. He has referred to 1973 P Cr. L J

439. The objection taken by Mr. M.I. Memon, Advocate is that this quashment application is not competent as it amounts to review or an earlier order by which the S.D.M. was directed to proceed with the case and decide within 3 months. First of all, I will take up the facts of Miscellaneous Application No.317/1987. The respondents challenged the order dated 19-9-1987 of the learned Session Judge, Karachi (South), whereby he set aside the orders dated 2-7-1987 and 8-7-1987 of the S.D.M. and restored the possession of the petitioner. This Criminal Miscellaneous Application against tie judgment, of the learned Sessions Judge was not pressed by the learned counsel for the respondents and wanted to get permission to withdraw the same as such this Court while dismissing that Criminal Miscellaneous Application of the respondents disposed of same as not pressed, bait directed that proceedings, if pending before the S.D.M. be decided within 3 months. It has also been observed in the order as under:- "The proceedings were initiated on the complaint filed by the applicant and contention of Mr. Altafur Rehman is that the order of the S.D.M. in the proceedings is fraudulent and the final order has been passed." This point was not considered. I do not want to enter into the controversy in this case as there was nothing before this court except the two orders of the S.D.M. and also of. Sessions Judge, who allowed the Revision and put the appellant into possession. His order is a speaking order. The learned Sessions Judge in his order dated 19-9-1987 directed that the record and proceedings be sent back to the lower Court. The same order was repeated by this Court for the speedy disposal of the proceedings. In that Criminal Miscellaneous Application, the Advocate for the appellant resisted the withdrawal of the Criminal Miscellaneous Application, on the ground that civil proceedings were pending and proceedings under section 145, Cr.P.C. were not competent. However, this point was not considered as it was not before this Court and it was not proper stage, when respondent did not press the point and there was no quashment application from the applicant. Mr. Memon has cited number of authorities. In 1-981 SCMR 618, the appellants were convicted with an imprisonment and fine. The conviction was maintained, but the sentence of the appellant was reduced to already undergone. The matter was taken to the Supreme Court, where it was argued that the High Court could have reviewed his own order but it was held that the High Court under section 369 of the Criminal Procedure Code was precluded from reviewing the order. In AIR 1928 Lah. 462, it has been held that section 561-A, Cr.P.C. does not confer inherent powers on High Court to alter or review his own judgment except a case of default or want of jurisdiction. In P L D 1986 Lah. 294, P L D 1970 Kar. 737, A I R 1965 Maysore 224, 1985 PCr.LJ 578, the same view is taken. I fully agree that under section 369, Cr.P.C. review is not competent. But in the present case the order passed in Criminal Miscellaneous Application as stated above was only to the extent of interim order of the Sub-Divisional Magistrate and order passed by the learned Sessions Judge who set aside both the orders and before this Court the merits or demerits of the proceedings were never argued but informally in way of routine learned Sessions Judge directed that proceedings under section 145, Cr.P.C. to continue. The legal point about the jurisdiction of the proceedings on the point of law were not competent although the proceedings before the S.D. M. were challenged before the learned Sessions Judge, but as the fitter was not for quashment of the proceedings and it was not rightly considered, but the learned Sessions Judge has limited to extent of interim orders passed by the Sub-Divisional Magistrate Civil Lines, Karachi and both were set aside and respondent before this Court also did not press the revision. In these circumstances, the proceedings under section 561-A for quashment are mainly on the facts and law. The previous orders passed on the previous application were independent and by entertaining these proceedings under section 561-A of the quashment of the entire proceedings are different and does not amount to review of the previous orders as the competency of the proceedings before the S.D. M. were argued by the petitioner were not considered on the simple ground that the orders of the Sessions Judge were challenged by the respondent at that time. Now the petitioner first time has come for quashment and I am of the view that this quashment application is to be considered independently according to law and is competent and is not barred. Mr. Altafur Rehman has referred to a case of Shah Mohammad v. Haq Nawaz in P L D 1970 SC 71, where it has been held that jurisdiction of Criminal Court to attach property under section 145, subsection (4), Cr.P.C. when the property was already subject-matter of an order of Civil Court re-calling its possession during the pendency of the Civil Suit is not competent. The Magistrate cannot act under section 145 Cr.P.C. in violation of a decree/order passed by the Civil Court during the pendency of the Civil Suit. It is an admitted position that proceedings under section 145, Cr.P.C. were entertained by the S.D.M. after the Civil Suit was filed and at that time the appellant had sought an order of status quo in his favour. Not only this but with regard to breach of peace, an action under sections 107 and 151, Cr.P.C. was already taken by the Police and the very Magistrate granted bail to both the parties. Mr. Hayat Qureshi, appearing for the State, has supported the quashment and referred to a case of 'Khushi Mohammad v. The State 1973 P Cr. L J 438 (439), where it has been held that proceedings under section 145, Cr.P.C. are of transitory nature and Magistrate ceases to deal with question of possession with the disputed land as soon as safeguard seizes the matter. In this case, number of authorities have relied upon and discussed. In case of Imamdad Khan v Mohammad Ilyas and two others reported in 1971 S C M 581 (584) it was held as under:- "It appears to us that as the disputes between the parties were subject-matter of civil suits and ad interim injunctions and status quo orders have been passed against the respondents in these suits the criminal Court was not competent to interfere with the possession of the appellants in respect of the property in dispute. On the view taken by this Court in the' above mentioned case, the order of the criminal Court was without jurisdiction. It was illegal and therefore, is liable to be set aside. " The Civil Suit No.1155/87 was filed in the Court of 1Xth Senior Civil Judge (South) Karachi on 14-6-1987 by the petitioner and on 20-6-1987 the following order was passed on interlocutory application:- "Plaintiff's Advocate present. Mr Mohammad Ikram Siddiqui, Advocate filed power for the defendants alongwith C/A, while plaintiff's Advocate filed application under section 151, C.P.C. for interim relief, notice of which has been waived by Mr. Ikram. Put off to 12-7-1987 for W/S rejoinder if any, and hearing of the injunction application. Meanwhile without prejudice to the contentions of the parties, they are directed to maintain status quo. Application under section 151, C.P.C. stands disposed of accordingly." In the application filed under Order ':XXIX, Rules 1 and 2, C.P.C. the petitioner in para. 6 clearly stated that he is in possession of the shop and business in question carried on, therefore, injunction be granted to restrain the defendants from causing interference in the possession of the plaintiff (petitioner) and on this application the status quo was granted. The proceedings under section 145, Cr.P.C. were entertained by the S.D.M. on 29-6-1987, while the order of status quo was already passed by the Civil Court and it was clearly stated by the petitioner before the Civil Court that he is in possession of the shop. In spite of that S.D.M, passed an order under section 145, subsection (4), Cr.P.C. The order was communicated to the P.S. and it is on the record that S.H.O. concerned pointed out in writing to the S.D.M on 2-7-1987 that there is an order of the Civil Court as such it will amount to contempt of Court in case the property is attached and possession is taken from the petitioner. In spite of that S.D.M. got the order executed. Subsequently, an application was moved by the petitioner on 4-7-1987 in which the S.D.M. was requested to deseal the premises and his application was dismissed by the S.D.M. by order, dated 8-7-1987 and also discussed the status of the status quo granted by the Civil Court and interpreted it. With great regret I say that the S.D.M. knowingly took the proceedings under section 145, Cr.P.C. and dispossessed the petitioner with mala fide intention contrary to the order of the Civil Court acting beyond his jurisdiction, for which I am passing a separate order. On facts and law the proceedings taken under section 145, Cr.P.C. are not competent. Upshot of the above discussion is that proceedings under section 145, Cr.P.C. in the Court of S.D. M. Civil Lines, Karachi are quashed. M.Y.H./A-393/K Proceedings quashed.