1986 PLP 1840 (MLD)

‑‑‑Ss.145 b 561‑A‑‑Quashing of proceedings‑‑Magistrate passing order against accused under S. 145, Cr.P.C., in respect of property in dispute which was in possession of accused for last five years‑‑Matter relating to civil nature and proceedings under S . 145, Cr. P . C . , taken with ulterior motive in order to take possession of disputed land‑‑Entire proceedings under S. 145, Cr.P.C., amounting to misuse of process of Court‑State also not supporting impugned order‑‑Proceedings against accused quashed. K.B. Bhutto for Petitioners. M. Akbar Khan for the State. Date of hearing: 26th May, 1986. The petitioners have moved this application under sections 561‑A Cr.P.C. for quashi,.ent of the proceedings pending against them in the Court of S.D.M‑ Liaquatabad under section 145, Cr.P.C.

2. The facts of the case are that on 9‑1‑1985, the respondent No.2 filed a complaint under section 145, Cr.P.C. against the petitioners stating therein that he alongwith others purchased a plot of land measuring 1‑04 Acres of Survey No.212 in Deh Gujro, Tapo Songal, District Karachi West. It was further alleged that the petitioner raised unauthorised construction on commercial Plot No.1. The petitioners were asked to remove the unauthorised occupation but they failed to do so. The learned S. D .M. made enquiry and passed the preliminary order and also issued order of attachment of the City Survey No.212 on 31‑1‑1985. The said attachment order was forwarded to the police for execution. The police was unable to attach the said plot as boundaries of the said survey number were not demarcated. According to the petitioners they are residing on the Government land for the last .20 years and constructed their houses. The petitioners filed Revision petition against the attachment order but their application was rejected by the learned Additional Sessions Judge by the order, dated 5‑3‑1985. It is to be noted that on 30‑7‑1985 the respondent No.2 alongwith others filed a Civil Suit for possession, 8eclaration, mense profit and damages against the petitioners in this Court and in the said'slit the respondent No.2 has stated that the defendants, present petitioners had built up a katcha construction on commercial Plot No.1 and they assured the plaintiff that they would vacate the premises whenever so required by the plaintiff. The plaintiffs on or about January, 1984 approached, the defendants and requested them to vacate the katcha construction but the plaintiffs noticed that the defendants had made pucca construction on the plot. The cause of action as shown in para. 10 of the plaint accrued to the plaintiffs on various dates including on January, 1984 when the defendants refused to vacate their illegal possession. The relief claimed in the suit was that the plaintiffs are entitled to possession of the Commercial Plots Nos.l, 2 and 3 and for mandatory injunction directing the defendants to vacate the said Commercial Plots Nos.l, 2 and 3 and hand over vacant and peaceful possession thereof to the plaintiffs and mense profit at the rate of Rs.5,000 per year, with effect from July, 1980 to July, 1985. Thus according to the plaintiff, respondent No.2 the petitioners have occupied the plot in dispute in the year 1980 that is much prior to the filing of the application under section 145, Cr.P.C. on 9‑1‑1985. In these circumstances no order as contemplated under section 145(4), Cr.P.C. could be passed. The possession of the petitioner was undisputedly for more than five years at the making of the application under section 145, Cr.P.C. therefore, action under section 145,Cr.P.C. could not be taken and the entire proceedings under section 145 amounted to misuse the process of the Court. The facts as narrated by the respondent No.2 himself show that the matter was of a civil nature. The respondent No.2 himself had filed a civil suit narrating all the facts. Possession of the suit land was claimed in the civil suit and it appears that the proceedings under section 145, Cr.P.C. had been taken with ulterior motive to take possession of the disputed land by initiating summary procedure under the provisions of section 145, Cr.P.'C. If there was apprehension of breach of peace then proceedings under sections 107 and 151 could be taken but no action under section 145 could be taken. The learned A.A. ‑G. has also not supported the impugned order. In such circumstances the application is accepted. Proceedings under section 145, Cr.P.C. pending against the petitioners in the Court of S.D.M. Liaquatabad Karachi in Case No.104 of 1985 are hereby quashed. M.Y.H. Petition accepted.