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Criminal Miscellaneous Application No. 1040 of 1976, decided on 28th April 1977.

‑‑ S. 561‑A‑Quashment of proceedings‑Order of Magistrate de- sealing premises set aside by appellate Court, although no evidence of any attempted breach of peace in existence‑Civil Court already seized of matter and question of possession decided by such Court‑Criminal Court, held, could not interfere with matter, in circumstances‑Proceedings quashed.‑[Quashment of proceedings).

Iftikhar Ahmed for Applicant.

K. M. Nadeem for Respondent No. 1.

Nooruddin Sarki for the State.

Dates of hearing : 29th and 30th March 1977.

This is an application under section 561‑A, Cr. P. C. for quashment of the proceedings under section 145, Cr. P. C. pending in the Court of S. D. M., Civil Lines, Karachi in respect of shop premises known as Electrolex situated on 27, Queens Court, Abdullah Haroon Road, Karachi.

2. The facts in brief are that applicant Razi Ahmad had taken these premises on rent on 26‑7‑1975 and started his business in the name and style of Electrolex for selling electrical goods, gas‑cookers etc. On .12‑2‑1976 one Mst. Uzma Akbari moved an application under section 145, Cr. P. C. before S. D. M., Civil Lines, claiming that her son Syed Khurshid Anwar owned the said shop and since he had left abroad on 30‑1‑1976 he had left the keys of the shop with the complainant. That she had checked the shop on I1‑2‑1976 and found petitioner Razi Ahmed running the business and in possession of the shop and the goods. The learned S. D. M. called for a report from S. H. O., Preedy Police Station and then passed orders that the shop may be sealed. Mst. Uzma Akbari also filed a complaint for offence under section. 448/380, P. P. C. against the petitioner, Razi Ahmad. The petitioner produced his documents and filed written statement in the Court of the learned S. D. M. that he was the actual owner of the shop in question and not a trespasser. The landlord also filed his written statement in which he stated that he had never handed over possession of the shop to the claimant Khurshid Anwar but it was represented to him by Sohail Akhtar working as servant in the said shop that Razi Ahmad was vacating the shop and Khurshid Anwar be issued rent receipts in respect of the said shop in future, as he had received possession of the shop directly from Razi Akbar; that it was on the said representation that he issued a receipt in the name of Khurshid Anwar. That he had neither received vacant possession of the said shop from Razi Akbar nor he had handed over the possession to the said Khurshid Anwar. The learned S. D. 'M. then called for a further report from S. H. O. Civil Lines and then ordered unsealing of the premises on 15‑4‑1976. Meanwhile the respondent No. 1 Mst. Uzma Akbari filed a civil suit for injunction against the petitioner but the suit was dismissed for non‑prosecution. Thereafter Khurshid Anwar filed another suit in the Court of XIIth Civil Judge, Karachi for declaration and permanent injunction and he also moved the application under Order XXXIX, rules 1 and 2, C. P. C. The petitioner as well as the landlord were made parties in that suit. This suit was also dismissed, as withdrawn. Khurshid Anwar then filed .a 3rd suit being Suit No. 1236/76 in the same Court and moved an application under Order XL, rule 1, C. P. C. Meanwhile the respondent No. 1 moved an application in the Court of Sessions, Karachi against the order of S. D. M., Civil Lines unsealing the premises being Cr. Revision 98/75. This revision was allowed and the order of the learned S. D. M. dated 15‑4‑1976 was set aside. The learned Additional Sessions Judge was of the view that once an order was passed it could not be cancelled unless it was shown that no such dispute existed and the Magistrate was satisfies' to that effect. However, under section 145 (5) any party may show that no such dispute actually existed, which was likely to cause a breach of the peace, the preliminary order could then be cancelled. In this case the S. D. M. wanted to inspect the premises but the complainant was opposed to inspection on the ground that her case would be prejudiced. The opposite‑party had filed a written statement that he was a tenant who had been in possession of the shop premises all along and no such dispute likely to cause breach of the peace had existed. The order of the S. D. M. regarding cancellation of the preliminary order would not, therefore, be an order without jurisdiction.

3. In any case the civil Court is already seized of the matter and the civil Court has considered and decided application under Order XL, rule 1, read with section 151, C. P. C. on 14‑10‑1976. The question of possession has been decided and so also the question regarding appointment of receiver.' Under these circumstances the criminal Court should be reluctant to interfere specially when there is no actual evidence of any attempted breach of the peace.

4. The proceedings under section 145, Cr. P. C. are accordingly hereby quashed.

Proceedings quashed.

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