1996 P Cr (PLP)

‑‑‑‑S. 145‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑ Petitioner admittedly was in possession of the property in dispute as required under S.145, Cr.P.C. within two months next before the order passed by the Magistrate‑‑‑Magistrate instead of initiating proceedings against the respondent who wanted to take possession of the property by force, passed order not supported by any cogent reasons to unduly favour the respondent whereby the petitioner and his family had been forcibly dispossessed from the said property at mid‑night by police which was an example of highhandedness and misuse of power‑‑‑Nothing was available on the record to show that an apprehension of breach of peace concerning the property in dispute existed to the extent that it could not be avoided except by way of sealing the said property‑‑‑Order passed by the Magistrate was consequently declared to be illegal, beyond jurisdiction and without lawful authority‑‑‑Constitutional petition was accepted accordingly. 1995 PCr.LJ 1566; Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109; Mofizur Rehman Chaudhry v. Serajul Mustafa and others 1968 PCr.LJ. 599; Waheed Ahmad and others v. Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi 1990 CLC 220; Adam Ji Insurance Company v. Assistant Director 1989 PCr.LJ 1921; Muhammad Shafique and others v. Abdul Hai 1987 SCMR 1371; Abdul. Razaq v. Bahadar Khan and others 1974 SCMR 330; S. Iqbal Balighuddin v. Sub‑Divisional Magistrate, Civil Lines, Karachi and 4 others PLD 1994 Kar. 384 and Meraj Din and others v. Chief Engineer and others 1995 PCr.LJ 1912 ref. Ch. M.S. Shad and Hassan Tariq Rahim for Petitioner. Muhammad Nasim Zafar for Respondent No.4 Ch. Muhammad Anwar Dhollan for the State. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner seeks to set aside the order, dated 30‑4‑1995 passed by respondent No.1 and proceedings thereby. be declared as void, illegal and without jurisdiction the legal possession of the petitioner be restored to him and the police guard be removed from the property sealed under section 145, Cr.P.C.

2. Briefly, the facts are that the petitioner's mother‑in‑law purchased a plot measuring 1 Kanal 2 Marlas 150 square feet comprising Bungalow No.28‑B of Eastern side Gulberg‑II, Lahore in the name of the petitioner's wife Mussarat Munir for the consideration of Rs.12,35,000 vide registered sale‑deed dated 16‑2‑1995 from Sheraz Ali son of Ehsan Ullah respondent No.4. It is further averred that the possession of the said plot was delivered to the petitioner on 14‑9‑1994; the superstructure of the said plot was sold separately by Sheraz Ali to one Muhammad Rafique contractor for a consideration of Rs.3,00,000; from the said contractor the petitioner later on purchased the same and started renovation as the petitioner also started living in the sari premises with his family. The respondent No.4 allegedly to deprive the petitioner from his legally purchased property being m his possession since 14‑9‑1994, got issued an order under section 145, Cr.P.C. dated 30‑4‑1995 from respondent No.1 to the respondents Nos.2 and 3 to seal the premises of the property in possession o f the petitioner. The respondent No.3 alongwith 20 police Constables trespassed into the house of the petitioner in the mid‑night on 1‑5‑1995, forcibly turned out the petitioner and his family members; sealed the premises alongwith the entire household of the petitioner and deputed police guard, hence, this petition.

3. Learned counsel for the petitioner contended that there was no breach of peace or likelihood of breach of peace on 30‑4‑1995, neither any proceedings under section 107/151, Cr.P.C. were initiated by the local police nor reported the matter to the learned Magistrate respondent No.1 that there is apprehension of breach of peace or even respondent No.1 initiated proceedings under section 107/150, Cr.P.C.; as neither there was any immediate apprehension of breach of peace nor any emergency before respondent No.1; further contended that civil litigation between Sheraz Ali and respondent No.4 regarding the property in question was pending before the competent Court of Civil Judge at Lahore in which stay order was passed in favour of respondent No.4. Conversely, learned counsel for respondent No.4 raised preliminary objection that the writ petition is not competent as the petitioner has not exhausted remedies by way of revision and petition under section 561‑A, Cr.P.C. and relied on case 1995 PCr.LJ 1566 and Writ Petition No.4991 of 1995 decided by this Court on the analogy of case Hafiz Muhammad Arif Dar v. Income Tax Officer PLD 1989 SC 109; further contended that the order under section 145, Cr.P.C. may be erroneous but cannot be declared without jurisdiction and without lawful authority as held by the superior Courts. The. order of respondent No.1 is of interim nature and if set aside, the respondent No.1 would be deprived of the main relief i.e. possession of the said property; the Court of Magistrate is a Court of facts under section 145, Cr.P.C. and under writ jurisdiction ‑factual controversies cannot be gone into and lastly argued that the petitioner was not party to civil litigation, hence, proceedings could be initiated by the learned Magistrate under section 145, Cr.P.C. The respondent No.1 filed the parawise comments and insisted that he was satisfied that proceedings under section 145, Cr.P.C. were necessary as the petitioner No.1 had taken possession forcibly from the respondent No.4 and there was apprehension of breach of peace at the spot in view of the efforts of respondent No.4 to repossess the property in question by force.

4. I have heard the arguments advanced by the learned counsel for the parties at length and have examined the record of the case and documents produced from both the sides. .

5. True, as argued by the learned counsel for the respondents Nos, 1 and 4 that one of the conditions for grant of relief in writ jurisdiction of the High A Court is that the petitioner before it should not have any alternate remedy; as observed by this Court in Writ Petition No.4991 of 1995 tilted as Muhammad Saleem Malik v. Lahore Bar Association etc. and case Syed Maqbool Hussain Shah v. S.H.O. etc. 1995 PCr.LJ 1566 and ordinarily under writ jurisdiction factual controversy cannot be gone into by High Court unless findings of facts are based on no evidence or important point of the evidence is not considered F as observed in case Mofizur Rehman Chaudary v. Serajul Mustafa and others 1968 PCr.LJ 599.

6. So far as the question of jurisdiction of this Court under Article 199 of the Constitution is concerned, it was observed in case Waheed Ahmad and others v. Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi 1990 CLC 220 as under:‑‑ "Constitutional jurisdiction is an extraordinary jurisdiction. The hall mark of this jurisdiction is to keep the various functionaries of the State within the orbit of their authority if the Court comes to the conclusion that the impugned order has been passed in excess of authority, or has been passed without authority or has been in defiance of law laid down by superior judiciary, the Courts strike down such orders and issues the writ." It was observed by their Lordships of Sindh High Court in case Adam Ji Insurance Company v. Assistant Director 1989 PCr.LJ 1921 that:‑‑ "Proceedings under Article 199 of the Constitution would be competent even against inquiry/investigation if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for mala fide reasons."

7. The case in hand has a chequered history and it would be appropriate to narrate the facts in the interest of safe administration of justice. The respondent No.4 Ehsan Ullah had married two wives and had two sons, namely Sheraz Ali and Khurram Ehsan from each wife and both the sons have independent ownership of property bearing No.28‑B, Gulberg‑II, Lahore and each sharing 1 Kanal 2 Marlas 150 square feet independently; Sheraz Ali sold his share as already aforementioned to petitioner's wife Mussarat Munir vide registered sale‑deed dated 16‑2‑1995 and physical possession was delivered by Sheraz Ali owner in possession to the petitioner's wife on 14‑9‑1994; a case F.I.R. No.45 of 1995, dated 2‑3‑1995 under section 342/380/440/148/149, P.P.C. was got registered by the petitioner against respondent No.4, his son Khurram Ehsan and others who tried to commit theft in the said House No.28‑B, Gulberg‑II, Lahore. Respondent No.4 filed Criminal Miscellaneous No.470/H of 1995 titled as Chaudary Ehsan Elahi v. Mian Iftikhar Ahmad Sukhera and others under section 491, Cr.P.C. for the recovery of his son Sheraz Ali from the illegal confinement of the petitioner which was disposed of on 9‑6‑1995 by my learned brother Mr. Justice Ch. Khurshid Ahmad, J where the alleged detenu Sheraz Ali was produced and his statement was recorded. The order of the learned Judge runs as under:‑‑ "The alleged detenu has stated that he was not under illegal detention or improper custody of respondent No.1 (the petitioner), rather he was apprehending danger of his life from his step‑brother Khurram Ehsan. It is not a case of illegal and improper detention and in view of the statement of the alleged detenu this petition has no force and the same is disposed of accordingly."

8. Sheraz Ali also got his statement recorded before respondent No.1 on 7‑5‑1995 wherein stated that being owner in possession of the said property purchased by him in 1985 from Jaikab Ibrahim had sold on 14‑9‑1994 to Mussarat Munir and physical possession was also delivered to the said Mussarat Munir at the spot wherein she started residing forthwith. The sale deed in her name was executed on 13‑2‑1995; prior to it Ehsan Ullah respondent No.4 also got registered case F.I.R. No.144, dated 20‑3‑1995 under section 364/506/148/149/109, P.P.C. with Police Station Qadirabad, Mandi Bahauddin that his son Sheraz Ali was kidnapped by 10 persons including the petitioner which was later on discharged and his son Sheraz Ali filed a private complaint under section 506/34, P.P.C. against his father Ehsan Ullah and brother Khurram Ehsan on 2b‑4‑1995. In case in hand, admittedly, respondent No.3 accompanied by some 20 constables trespassed into the petitioner's residence and took over the possession forcibly and sealed the bungalow in compliance of the order passed by respondent No.1. The learned Magistrate respondent No.1 knowingly that the petitioner and his family is in possession of the property since 14‑9‑1993, even otherwise admittedly as mentioned in his own order that the petitioner was in possession since 2‑3‑1995, civil litigation in. regard to the said property was pending before the competent Court of jurisdiction and stay order was issued in favour of respondent No.4 and that the property has been sold by Sheraz Ali to the petitioner's wife as admitted by him in his report, in spite of all these facts in his knowledge passed the order without calling any report from the police of the area or initiating proceedings under section 107/151, Cr.P.C. or issuing notice to the petitioner who were legally in possession of the suit property and had no dispute with respondent No.4 as was not impleaded as party to the suit as stay order was granted in his favour. The provisions of section 145, Cr.P.C. read as a whole clearly indicates that should be a continuous danger of the peace till the final order is made. The primary object of the proceedings under section 145, Cr.P.C. is to preserve peace and not enter into controversy about the title of the property. It is the only a stop gap arrangement and is dependent upon the final adjudication of the dispute by the competent Civil Court. The Magistrate is duty bound while proceedings under section 145, Cr.P.C. to decide as to which party was in possession of disputed property without two months next before the date of such order and when comes to this conclusion that any party as within two months next before the date of order has been forcibly and wrongfully dispossessed by the other party then it is obligatory for the Magistrate to restore its possession to the party. However, if the Magistrate considers the case one of emergency, he may at any time attach the subject of the disputed; property pending decision under the section as held in case Muhammad Shafique and others v. Abdul Hai 1987 SCMR 1371. True, as contended by the learned counsel that the jurisdiction of Magistrate under section 145, Cr.P.C. is not dependent on an application .by a party or report by the police or information from any quarter but it is independent on his being satisfied that a dispute likely to cause breach of peace exists. Admittedly, the petitioner was or possession of the said property at least since 2‑3‑1995 as mentioned in the order of respondent No.1 and the application of respondent No.4; further it is confirmed that the petitioner was in possession of the said portion of the property as is evident from case F.I.R. No.144 of 1995 lodged by the petitioner against respondents Nos.1 and 4 and his sons. It was also in the knowledge of respondent No.1 that stay order was granted by the learned Civil Judge, Lahore in case Ehsan Ullah Ranjha v. Sheraz Ali till 2‑2‑1995 in favour of respondent No.1 There was no breach of peace or likelihood of breach of peace on the said date when the order was passed by the respondent No.1, rather it was the intention of respondent No.4 as mentioned by the Magistrate respondent No.1 in his order to create situation for breach of peace as is evident from the order of respondent No.1:‑‑

9. Even respondent No.4 also conceded in his statement that the petitioner is in possession of the said property since 2‑3‑1995. The respondent No.1 instead of initiating proceedings against respondent No.4 under the circumstances of the case who intended to take possession by force from the petitioner, who was in possession of the said property as required under section 145, Cr.P.C. within two months next before the date of such order, unduly favoured the respondent No.4 by passing unscrupulous and absurd order not supported by cogent reasons; no prudent man will believe that the petitioner had taken possession of the property forcibly on 2‑3‑1995 in view of the chequered history of the case in hand. In the present case nothing has been brought on record to show that an apprehension of breach of peace concerning the property existed to the extent that the breach of peace could not be avoided except by way of sealing the disputed property. The property was sold and handed over to the petitioner by the son of respondent No.4 and was bound by the said sale‑deed which was registered in favour of the petitioner's wife. Even if he had any objection to the sale‑deed which was effected after the stay order was granted to move an application before the Court of Civil Judge who had granted stay order in his favour and proceedings under section 145, Cr.P.C. were unwarranted. In case Abdul Razaq v. Bahadar Khan and others 1974 SCMR 330, the facts were similar to the case in hand as in that case the Magistrate ordered restoration of possession to a party without arriving at conclusion that such party had been in possession on relevant date, while on the other hand documentary evidence revealed that opposite‑party lead been i:. possession on such date, the order of Magistrate was set aside by the High Court and was confirmed in appeal by their Lordships of Supreme Court of Pakistan. The manner, the petitioner and his family were disposed night forcibly by the respondents Nos.2, and 3 under the order of respondent No. 1 is a classic example of highhandedness and misuse of power. For this fording, I am fortified by the judgments reported as S. Iqbal Balighuddin v. Sub‑Divisional Magistrate, Civil Lines, Karachi and 4 others PLD 1994 Kar. 384 and case decided by this Court reported as Meraj Din and others v. Chief Engineer and others 1995 PCr.LJ 1912.

10. For the foregoing reasons, this petition is accepted and the order passed by respondent No.1 is declared to be illegal, beyond jurisdiction, G without lawful authority and misuse of powers. A copy of this order be sent to the Chief Secretary, Punjab, Lahore to look into the matter and take necessary steps against respondent No.1 in accordance with law. N.H.Q./I‑170/L Petition accepted.