1990 PLP 60 (MLD)

For the purposes of this criminal miscellaneous application filed under section 561-A, Cr. P.C., the following statement of facts would suffice:--

2. There is a dispute between applicants on one side and respondent No.1 on other side over a plot bearing No. 1/C/10, situated in Federal B' Area, Karachi, having a fence wall and an outer gate. On 13-3-1985, the applicants made an application to D.S.P., Liaquatabad, Karachi, stating therein that they were in lawful possession of the disputed property as owners when on that day the respondent No.1 took forcible possession of the said plot. On the basis of this application, S.H.O. Gulberg P.S. submitted a report under section 145, Cr.P.C. regarding the disputed property in the Court of Assistant Commissioner and S.D.M., Liaquatabad, Karachi, who took cognizance and passed a preliminary order on 21-3-1985. The learned Magistrate also passed an order under subsection (4) of section 45, Cr. P.C. whereby the disputed plot was sealed. On 25-3-1985, the respondent No.1 filed an application under subsection (5) of section 145, Cr. P.C. for staying the proceedings as no dispute existed between the parties. During the pendency of this application, the respondent No.1 filed Cr. Revision No. 49 of 1985 (New No. 33 of 1985) which was heard by IIIrd Additional Sessions Judge, who set aside the order passed by learned S.D.M. under subsection (4) of Section 145, Cr. P.C., directing the restoration of possession to respondent No.1. The applicants challenged this order in Cr. Misc. Application No. 1487 of 1985 before this Court which was allowed by my learned brother Sajjad Ali Shah, J. vide judgment dated 16-12-1987, with the following directions:- "For the facts and reasons stated above, impugned judgment passed in the revision is hereby set aside and application under section 561-A, Cr.P.C. is allowed, in consequence whereof orders passed by learned S.D.M. in proceedings under section 145, Cr.P.C. are restored including the order of sealing of the plot in dispute. Case is remanded to the learned S.D.M. for disposing of the application filed under section 145(5) Cr.P.C. strictly according to law and merits after hearing both the parties."

3. On remand the learned S.D.M. dropped the proceedings directing delivery of possession of the disputed plot to applicants. This order dated 12-4-1988 was challenged by respondent No.1 in Cr. Revision Application No. 13 of 1988 before the Ist Additional Sessions Judge (Central) Karachi, who set aside it directing the restoration of possession to respondent No.1. It is in these circumstances that the present application under section 561-A, Cr.P.C. was filed before this Court seeking the quashment of the order dated 31-10-1988 passed by learned 1st Additional Sessions Judge (Central), Karachi.

4. I have heard Mr. MA. Kazi, learned counsel for applicants, Mr. Muhammad Yousuf, learned counsel for respondent No.1 and Mr. G.R. Warsi, learned counsel for State.

5. Subsection (5) of section 145, Cr.P.C. provides as follows:- "Nothing in this section shall preclude any party so required to attend, or any other .person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final."

6. As observed in Malik Manzoor Elahi v. Lala Bishambar Dass and another, reported in P L D 1964 Supreme Court 137, the provisions of section 145, Cr. P. C. as a whole indicate that there should be a continuing danger of a breach of peace till the time the final order is made. The use of the word `exists' to the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of this section being the maintenance of public peace and the prevention of breaches thereof it would follow that where there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the summary procedure provided by this section is no longer called for and should be put an end to.

7. The learned S.D.M., who had passed a laconic order, however, while disposing of the application made under subsection (5) of section 145, Cr.P.C. by respondent No.1, directed as follows:-- "1n view of the above-stated facts and reasons and also considering the point that title of the plot is not under dispute and only the possession of the plot is a bone of contention between these two parties this Court relying on the orders passed in Civil Suit No. 4070/84 of Hon'ble Court of Session and also on K.D.A.'s transfer documents No. 210 dated 31-1-1985 in respect of said plot restore the possession in favour of Ist party i.e. Anisur Rehman s/o Fazalur Rehman, 2-Fazalur Rehman s/o Ashfaqur Ali and Mrs. Azra Rehman w/o Tehsin Hassan after desealing the Plot No. 1/C/10, Federal `B' Area, in presence of the parties after preparation of inventory/mashirnama of the access lying in the premises of the said plot.. The compliance report is to be sent to this Court accordingly."

8. This order was set aside by learned Ist Additional Sessions Judge (Central), Karachi, in Cr. Revision Application No. 13 of 1988, who was of the view that question of titl6 is irrelevant in a proceedings under section 145, Cr.P.C. and the crucial point to be decided in proceedings under this section is as to who is in actual possession of the subject in dispute, and not who is entitled to such possession. It was also held by the learned Additional Sessions Judge that in the event of an order passed under subsection (5) of section 145, Cr.P.C. the learned S.D.M. should have restored the possession to respondent No.1 from whom it was taken over.

9. Mr. M. A. Kazi, learned counsel for applicants has, however, contended that the order dated 12-4-1988 passed by learned S.D.M. was in fact an order under subsection (4), subsection (5) and subsection (6) of section 145, Cr.P.C. and should not have been reversed by the learned Additional Sessions Judge. The order under subsection (5) of section 145, Cr. P. C. is in fact destructive to order under subsection (6) of section 145 Cr. P. C. and both of them cannot be consolidated together. Even otherwise the order of remand passed by this Court which I have reproduced in para. 2 of this judgment specifically directs the learned S.D.M. to dispose of application made under subsection (5) of section 145, Cr.P. C. and then to proceed further. The cases reported as Haji Shamsuddin Ismail and others v. The State and others (P L D 1969 Karachi 515), Mir Jaffar Khan Jamali and another v. The State and 3 others (P L D 1971 Quetta 84), Mir Hasil Khan and 3 others v. Mir Ghulam Muhammad and another (P L D 1973 Quetta 10), Fateh Alam Khan v. Saif Ali Khan (P L D 1982 Azad J & K 71), and Pir Muhammad Khan Masood and another v. The State and another (1983 P Cr. L J 954), which are cited on behalf of the applicants have no bearing on the point in issue. None of them supports the extreme contention advanced on behalf of applicants:

10. On the making of an order dropping the proceedings the Magistrate becomes `functus officio' and has no jurisdiction thereafter to pass any order relating to the claims of the parties. In the case of Denepudi Narasayya and another v. Chiguluri Venkiah and others reported in 27 Cr. L J 1926, it was held that where after proceedings are started under section 145, Cr. P. C. and the Magistrate is satisfied that a likelihood of a breach of peace either did not exist or that it has ceased to exist, it is his duty to drop the proceedings and to withdraw from interfering with the rights of the parties in the property. It was further observed that after dropping the proceeedings, the Magistrate is `functus officio' and has no jurisdiction to pass any further orders in regard to the disposal of the sale proceeds of the crops on the property which had been attached pending the proceedings and the proper procedure in such a case is to keep the amount in deposit to enable the party entitled to it to get a decree of a civil Court establishing his title thereto.

11. In the case of the State v. Sheoratan Singh Prahlad Singh and others, reported in A.I.R. 1951 Nagpur 201, a Division Bench observed as follows:-- "It is but right that when the jurisdiction to act under the section is found wanting the Magistrate should restore the status quo ante by directing the delivery of the property to the party from whom it was attached."

12. The case of Kishan Sahai v. State reported in A I R 1952 Rajasthan 101, is again relevant wherein it was observed that when the proceedings, under section 145, Cr. P. C. are dropped the Magistrate becomes `functus officio' and has absolutely no powers to make an order that the property be returned to a particular party because that amounts to deciding the question of possession which the Magistrate has no right to do after dropping the proceedings.

13. In Gumanta Mohan Deb v Abdul Karim Mian reported in 1954 Cr. L J 1336, it was held that where the Magistrate quashes the proceedings under section 145, Cr. P. C. started by his predecessor on the ground that there was no apprehension of breach of the peace he cannot start thereafter a detailed enquired by examining witnesses to know who was in actual possession of the land in question on the relevant date. The Magistrate should release the property in favour of the party from whose possession it was attached leaving any aggrieved party to go to the competent civil Court for adjudication of his rights.

14. This view was also taken in the case reported as Delhi Cloth and General Mills Ltd. v. Yograj Singh and others (A I R 1957 Allahabad 797).

15. It is thus obvious that any attachment affected in the course of proceedings automatically ceases and the position of the parties is precisely the same as if no proceedings had been instituted at all under section 145, Cr.P.C. The order of the learned Additional Sessions Judge for placing the parties in the same position which existed on the day when an order under subsection (4) of section 145, Cr.P.C. was passed, is, therefore, not open to exception.

16. No case for interference is made out and the application filed under section 561-A, Cr. P.C. is accordingly dismissed. N.H.Q./K-176/K Application dismissed.