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Criminal Miscellaneous No. 5127 of 1968, decided on 20th November 1968.

Ss. 145 & 522‑Dispute regarding immovable property‑Restoration of possession Magistrate without examining complainant and without passing preliminary order stating grounds of his satisfaction passing order dispossessing one and restoring possession to another‑Such order, held, cannot be said to have been passed under S. 145 or S. 522‑Order quashed.

S. M. Anwar for Petitioner.

Malik Ghulam Rasul with Muhammad Javed for Respondents Nos. 1 and 2.

Muhammad Ismail Qureshi for the State.

This is an application under section 561‑A, Cr. P. C. for quashment of the order, dated the 12th September 1968, passed by Ch. Imtiaz Ahmad Sahi, Magistrate with section 30 powers, Multan.

2. The facts are these. Khawaja Muhammad Yusuf secured land measuring 10,400 square feet of Survey No. 248, situate in Multan Cantt., for the installation of a Petrol and Diesel Pump from the Military Estate Officer, Lahore Circle, Lahore Cantt., on a renewable lease for an initial term of five years commencing from 12th February 1958. Simultaneously he secured from Messrs Burmah‑Shell On Storage and Distributing Company of Pakistan Limited, a Dispensing Pump and selling licence. He constructed a Filling Station comprised of a selling room, three rooms a bath‑room, a latrine, pacca pavement over the entire site and approach road with entrance and exit at the costs of Rs. 32,000. He also got electric connection from Electric Supply Company, Multan, and paid for the wires, electric poles and other installations besides security deposits. This lease of land was renewed by the Government of Pakistan, Military of Defence for another period of five years from 12th February 1963 to 11th February 1968, on the recommendations of Burmah‑Shell Management. Under the new arrangement it was agreed between the petitioner and Burmah‑Shell, that they would retain the petitioner as their dealer and in token thereof the petitioner consented to the prospective lease in their favour by the Government of Pakistan.

On 20th of August 1968, the administration of Burmah‑Shell cancelled the licence of the petitioner and delivered the possession of the Petrol Pump to Amir Ali respondent No. 2 on 12^th September 1968 by Muhammad Sadiq Ali District Representative Burmah‑Shell Company, Multan, wherein it was complained that Khawaja Muhammad Yusuf along with a few persons armed with hatchets and guns had forcibly locked a room and the canteen attached to the Petrol Pump and had also stopped the supply of electricity to the Petrol Pump. The learned Magistrate without recording the statement of Muhammad Sadiq Ali passed the following order :

"The S. H. O., Mumtazabad to report as to in whose possession the premises were immediately before the occurrence."

The same day, A. S. I, Mumtazabad, reported that Khawaja Muhammad Yousuf and others had manoeuvred to take possession of these rooms and after locking them were not traceable. The report was put up the same day and the learned Magistrate passed the impugned order for breaking open the said locks and handing over the possession of the rooms to Amir Ali.

3. Learned counsel for the petitioner has stoutly urged the following grounds for quashing the impugned order:

(i) that there is no provision of law under the Code of Criminal Procedure under which the learned Magistrate purported to have acted in ordering to dispossess the petitioner from property in dispute. Therefore, all the proceedings are illegal and without lawful authority ;

(ii) that the learned Magistrate on this application could act under section 145, Cr. P. C. but the proceedings on the record would show that he did not examine the complainant nor passed any preliminary order stating the grounds of his satisfaction as required under section 145 (1), Cr. P. C., nor he held an enquiry as laid down in sub‑clauses (4) and (5) of sec tion 145 (1), Cr. P. C. before passing the impugned order; and

(iii) that the impugned order cannot be said to have been passed under section 522, Cr. P. C., as he did not entertain the petition as a complaint, nor had convicted the applicant of an offence of criminal trespass.

4. Learned counsel appearing for the State and the contesting respondents, have drawn my attention to rule 95 of Petroleum Rules and contended that the contravention of any of the provision of the rules is an offence under section 23 of the Petroleum Act (XXXIII of 1934), and the offender is liable to a fine which may extend to five thousand rupees. It is true that this rule provided the exclusion of unauthorised persons having access to any storage, shed or installation. If Khawaja Muhammad Yousuf and others were unauthorised persons the proper procedure was to prosecute them under section 23 of the Petroleum Act, which was not done in the instant case. The alleged violation of the rules, if any, cannot justify the issuance of a wrong order.

5. The contentions raised at the Bar by the learned counsel for the petitioner, have substance and must prevail. The order of the learned Magistrate is not covered by any provision of law. B This order cannot be said to have been passed under section 145 or 522, Cr. P. C. the learned Magistrate acted illegally and without lawful authority in passing this order.

6. An endeavour was made by the learned counsel for the State and the contesting respondents to defend the impugned order, but they were unable to show any provision of law which could protect it. Ultimately, they conceded, and rightly too, that it was not possible to defend this order.

7. The result is that I accept this petition, quash the impugned order and restore the possession of the canteen and the room to Khawaja Muhammad Yousuf.

8. The complainant, if so advised, may make a complaint under section 448, P. P. C. or an application under section 145, Cr. P. C. to seek redress.

Petition accepted.

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