1980 P Cr (PLP)

‑‑Ss. 561‑A & 145‑Quashment of proceedings‑No allegation either of any breach of peace or of occupants having been dispossessed by use of criminal force‑Orders of Magistrate handing over posses sion of flats to respondents, held, neither justified under S. 145, Cr. P. C. nor under S. 448, P. P. C.‑Magistrate having no powers of a civil Court such orders, further held an abuse of process of Court, hence quashed‑Penal Code (XLV of 1860), S.

448. Kadir Bakhsh Bhutto for Applicant. Abdul Kadeer Channa for Respondents. Dates of hearing : 7th and 8th August, 1979. This quashment application is directed against the orders passed by the Assistant Commissioner and S. D. M. Central on 8th February, 1978 directing that the Flat in Jacob Lines, which belongs to Mst. Zarmar Jan and Mst. Zarin Marjan respondents Nos. 1 and 2 in this petition be handed over to the ladies forthwith. The respondents Nos. 1 and 2 had made an application on 1st February, 1978 before the Deputy Commissioner, East Karachi wherein they had alleged that Flats No. U/11/3 and U/I/3 in Awami Flat Jacob Lines were allotted to them by the Government. They further stated that one local Advocate Mr. Sharif Khattak alongwith his brothers Abdul Sattar and Abdul Jabbar and their father Muhammad Janan got annoyed with the ladies and wanted to snatch these flats. These two ladies were arrested for murder of Muhammad Janan who was their father‑in‑law. They prayed in that application that their flats be restored to them from wrongful possession of the accused persons. The Deputy Commissioner marked the application to A. C. & S. D. M., Central who sent the same for inquiry and report to S. H. O., Brigade Police Station, and after perusing the police report and the statement of Abdul Sattar, the Assistant Commissioner and S. D. M. ordered that the posses sion of‑the flats be handed over to the ladies forthwith. He further ordered that if Abdul Sattar does not give the possession of the flats to the ladies then the possession of the flats be handed over to them by force. One of the flats had been given on rent by Abdul Sattar. The petitioner claims possession of the flats since last 6 months and he had stated that he bad been residing with his two brothers. On 9th February, 1978 the present applicant moved an application for review of the order before Assistant Commissioner wherein he submitted that there was no jurisdic tion in that Court to make the order of handing over the possession of the flats. The Assistant Commissioner issued a stay order. On 13th March, 1978 the applicant moved an application before the Assistant Commissioner for dismissal of the complaint, but no action seems t4 have been taken on the same. After filing of this application in the High Court, comments were sent for from the learned S. D. M. and Assistant Commissioner, Central in order to ascertain whether he had passed the order in his executive capacity or as a Court, In his comments the learned Assistant Commissioner insists that any order passed by him was passed in good faith and within the legal frame work of the powers conferred on that Court and hence there is no illegality involved in any order passed by that Court. The respondent ladies were represented by Mr. Qadeer Channa, Advo cate who stated that correct orders were passed. Mrs. Saleema Nasirud din, learned counsel appearing for the State has stated that the order was justified under the circumstances as the flats really belong to those ladies. We are however not concerned with the title to the flats. The question is as to what was the power available to the Assistant Commissioner and S. D. M. to pass the impugned order. State counsel submits that it was a complaint cell created by the Martial Law Authorities which was dealing with such complaints. But she has not been able to point out any provi sion of law which confers power on A. C. & S. D. M. to make this order: I fail to understand as to how the learned S. D. M. passed this order as a Court and since he has insisted that he has passed this order as a Court, I have no hesitation in quashing these orders as they are neither justified under section 145, Cr. P. C. nor under section 448, Cr. P. C. because there was no allegation either of any breach of peace or any allegation' that the ladies had been dispossessed by any use of force. Moreover the learned A. C. and S. D. M. had no powers of a civil Court. Buy since he says that he has exercised the powers of a Court then evidently,! he seems to be labouring under an impression that such powers are available to a S. D. M. under Criminal Procedure. But no such total powers exist for a Criminal Court under the Code of Criminal Procedure. and the impugned order was not covered under any provision of Law, and amounts to abuse of the process of the Court. In these circumstances the order of A. C. & S. D. M., dated 8th February, 1918 is hereby quashed.