2003 P Cr (PLP)

Briefly stated the facts of the matter are that respondent No. 1 Haji Muhammad Shafi had filed a complaint under section 145, Cr.P.C. against applicants, Rafia Ejaz, Ejaz Hussain Khan Imran Hussain Khan and Rehan Hussain Khan to the effect that there was a dispute between the parties regarding House No.A/8, Street 5, Sector 15‑A/5, Buffer Zone, North Karachi. Admittedly the said property was owned by applicant No. 1 who had agreed to sell it to respondent No. 1 Haji Shafi for a total consideration of Rs.18,60,000 out of which Rs.7,60,000 had already been paid, whereas the balance was to be paid at the time of execution of the conveyance deed. Upon advance payment of Rs.7,60,000 respondent No.1 was allegedly given possession of the property by the applicant in the end of November, 1999. However, instead of execution of the conveyance deed Applicant No.1 alongwith the applicants attacked respondent No.1 at the disputed property on 19‑12‑1999 and he was thrown out of the house in question. He was threatened with dire consequences in case any claim in respect of the said house was made. Hence, it was prayed that proceeding under section 145, Cr.P.C. may be, instituted and the house be restored to respondent No. 1.

2. Based on the foregoing complaint the learned Magistrate issued notice to the applicants for their appearance before him and proceed to record evidence. The present application under section 561‑A, Cr.P.C. has been filed to the effect that this is a case of no evidence at all based on the deposition of the parties so far recorded by the learned Magistrate. Hence, the proceedings before him be quashed since it could not possibly result in a positive verdict against the applicant.

3. In support of this application learned counsel for the applicants has firstly submitted that per the agreement to sell on record, dated 7‑1‑1999 it was agreed that upon receiving the balance sale consideration of Rs.12,10,000 (sum of Rs.6,50,000 having already been received by the applicant No.1 as on the date of the said agreement) would be paid by the respondent No.1 to the applicant No.1 within 90 days of the date of the said sale agreement viz. up to 9‑4‑1999 which was not done. Learned counsel has further submitted that in the circumstances there was no question of putting applicant No.1 into possession of the premises. Secondly learned counsel has submitted that in the body of the application itself no date has been mentioned as to when the respondent No.1 was given possession which prima facie shows that this was not given at all.

4. Next learned counsel submitted that during cross‑examination respondent No.1 has admitted that he could not give such date and also in fact he never had the possession. Finally learned counsel has submitted that the order under section 145, Cr.P.C. which is dated 21‑10‑2000 was months of the date of the alleged dispossession viz. 19‑1‑1999 therefore, no order could be passed for restoration of the premises to the respondent No.1. Hence, the proceedings before the learned trial Court suffered from the basic legal defect. In support of his submissions learned counsel has relied upon the following case‑laws:‑‑ (1) Muhammad Hussain and another v. Muhammad Latif PLD 1984 SC. (AJ&K) 19, (2) Muhammad Shafique and others v Abdul Hayee and others 1987 SCMR 1371, (3) Rafique Ahmad Awan v. The State 1993 MLD 832, (4) Abdul Haque v. The State and another 1973 PCr.LJ 945, (5) Muhammad Uris v. The State 1990 MLD 1583, (6) Muhammad Sharif and others v. Mst. Aisha Bibi 1990 PCr.LJ 811, (7) Muhammad Iqbal Jaffer v. The State and 6 others 1989 PCr.LJ 1089, (8) Muhammad Adam and 2 others v. The State 1993 PCr.LJ 504, (9) Gul Muhammad and others v. Mst. Kubra Begum PLD 1961 (W.P.) Pesh. 76, (10) Nawabuddin v. Abdul Ghafoor 1968 PCr.LJ 335, (11) Shahra Khan v. The State 1968 PCr.LJ

339. Learned counsel has, therefore, prayed that this application be allowed and proceedings before the learned trial Court be quashed firstly being time‑barred and secondly per. deposition of the respondent No.1 no case for possession could be made out at all.

5. On the other hand Mr. Abdus Salam Baloch, learned counsel for respondent No.1 has submitted that the cross‑examination of respondent, No.1 would disclose that he had been put in possession in the last week of November, 1999 of the first floor and dispossessed on 19‑12‑1999. He has, therefore, prayed that the application be dismissed since so far deposition of the witnesses has not been completed. He has relied upon Muhammad Shafi v. Additional District and Sessions Judge and others 2002 SCMR 1208 and Noor Muhammad v. The State PLD 1971 Lah. 766.

6. Mr. Ejaz Ahmad Memon, learned State Counsel has supported the arguments of the learned counsel for the applicant.

7. I have heard both the learned counsel and my conclusions are as follow:‑‑

8. It would be seen that per section 145(1) of the Cr.P.C. a Magistrate upon being satisfied from a police report or other information that a dispute exists and is likely to cause a breach of peace concerning any land or water, etc. he shall order the parties concerned to appear before him and thereafter to pub in their written statement as regards their respective claims to the actual possession of the property in question, which is the subject‑matter of the dispute. Per subsection (4) a Magistrate shall without reference to the merits of the claim of the parties with respect to the possession of the property in dispute enquire into as which of the parties was at the date of the order above mentioned in possession of the said property. Per the First Proviso to section 4 if it appears to the Magistrate that any party has within two months next before the date of order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession as on such date. Upon perusal of the foregoing proviso to section 145(4), Cr.P.C. it is quite clear that a party which had been dispossessed more than two months prior to the date of the order to be put back into possession by the Magistrate. For this proposition Gul Muhammad v. Mst. Kubra Begum, Shahra Khan v. The State and Nawabuddin v. Abdul Ghafoor (supra) can be cited, Admittedly the order under section 145(1), Cr.P.C. has been passed by the learned Magistrate on 21‑10‑2000 whereas the date of the alleged dispossession is 19‑1‑1999, hence no order for restoration of the premises to the respondent No. 1 can be B passed by the Magistrate. Consequently, in my opinion, the proceedings before him cannot possibly result in any order for such possession. Hence, the same to that extent would become infructuous.

9. Besides the foregoing it would also be seen that respondent No. 1 under cross‑examination has very candidly admitted that he was never given possession at all and also that only his personal effects were lying in the premises and he used to visit the same for 3 to 4 hours every day. In these circumstances, in my opinion, it cannot be said that the respondent No.1 was ever given possession of the premises by the applicant. Consequently, for the foregoing reasons I am also of the opinion that possession could hardly be proved by the respondent No.1, hence no useful purpose would be served to keep the matter lingering on before the learned Magistrate when admittedly this could never result as a matter of law and fact in possession being given to respondent No.1. Hence, I would allow this application and quash the proceedings before the learned trial Court. R&Ps to be returned. The above are the reasons for the short order to the foregoing effect passed on 24‑1‑2003 by myself. H.B.T./R‑98/K Application allowed.