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Criminal Miscellaneous Application No. 705 of 1979, decided on 22nd August, 1979.

----Ss. 561‑A & 145‑Quashment of proceedings‑Petitioner condemned unheard and order of unsealing of premises made without any notice to petitioner‑Proceedings being abuse of process of Court. quashed in circumstances‑‑[Natural justice, principle of Abuse of process of Court].

Burewala Textile Mills Ltd., Burewala v. Zeenpt Textile Mills Ltd., Lyalipur P L D 1978 Lah. 287 ref:

Amir Hussain K. Jatoi for Applicants.

Rehanul Hassan Farooqi for Respondent No. 2.

Abdul Sattar Shaikh Addl. A.‑G. for the State.

Date of hearing : 22na August, 1979.

The relevant facts for the present application are that the shop No. 10/714/A on Shah Mohammad Suleman Road, Liaquatabad was sealed under order of S. D. M. Liaquatabad on 26th May, 1979. At the time of sealing of the shop Mst. Qamar Zamani's son Ferozuddin was in possession of the shop, who was alleged to have occupied the same some time earlier on the night between 17 and 18 May, 1979. The case was initiated on the F.I.R. of Shah Mohammad Nasim who alleged to have been the tenant )f the shop and further alleged that he had been dispossessed of the same without any lawful proceedings. The shop was sealed as the police in pursuance of the F. I. R. lodged by Nasi1W had moved' the application order section 145, Cr. P. C. before the learned S. D. M. After sealing the shop on 26th May, 1979, the shop was unsealed on 28th May, 1979 and possession was handed over to the respondent Shah Mohammad Nasim. Thus unsealing of the premises on 28th May, 1979 was done without issuing any notice either to Mst. Qamar Zaman or to her son Ferozuddin. It may be mentioned here that Ferozuddin had been arrested by police on 24th May, 1979 and was in custody of Liaquatabad Police till 2nd June, 1979. 1 have sent for the record of the Lower Court in order to ascertain the fact whether any notice had been issued to the applicant before the unsealing of the premises. I do not find any such notice having been issued, although notice to Sher Mohammad Nasim respondent No. 2 was actually issued.

The learned Additional Advocate‑General as well as Mr. Rehanul Hassan Farooqi have seen the record of the Lower Court and both have not been able to find any notice having been issued to the applicant. Therefore, the admitted position now is that the shop was unsealed with out any notice to the applicants from whom the possession had been taken on 26th May, 1979, there was thus no enquiry made from the applicant' before ordering the un‑sealing of the premises.

Mr. Rehanul Hassan Farooqi further submits that application under section 561‑A is not the proper remedy in this case as the application could have either been moved before S. D. M. under section 145 (5) of Cr. P. C. or the applicant could have filed Cr. Revision under section 439 of Cr. P. C. The counsel relies upon P L D 1978 Lah. 287 where it was held "remedy provided under section 561‑A should not be resorted to where there is an express provision of Criminal Procedure available for remedy". I am however satisfied that in this case where the applicant had been con demned unheard and order of unsealing had been made without any notice to the applicants and the possession had been ordered to be delivered to the aforesaid, it is a fit case where High Court should exercise its power under section 561‑A, Cr. P. C. to prevent abuse of process of Court. I would therefore persist in my view that possession ante 28th May, 1979 should be restored and the shop in question should be sealed again and it should remain in the custody of the Court till the hearing of this petition. Mr. Rehanul Hassan Farooqi however suggests that it would be much better if this petition is disposed of with this order and the matter is sent back to the S. D. M. for disposal after hearing of the parties. Mr. Amir Hussain K. Jatoi and Mr. Abdul Sattar Shaikh, Additional A.‑G. agree with the same. In such circumstances I order that order of unsealing of shop made by S. D. M. 'Liaquatabad on 29th May, 1979 is hereby set aside and shop is ordered to be sealed and the patties should be heard by S. D. M., and thereafter the S. D. M. should pass the orders on the application made by the police under 145, Cr. P. C. after issuing notice to both the parties.

In view of the serious nature of allegations having been made about the S. D. M. and the Deputy Commissioner, in the details of which I do not want to express my opinion as I am sending back the case. I am of the view that it would be in the interests of justice that the matter is heard by some other S: D. M. than the one who passed the order on 28th May, 1979. Record should be sent back. The S. H. O. Liaquatabad is directed to seal the premises forthwith which shall remain seated pending the orders of S. D. M. under section 145 of Cr. P. C.

Case remanded.

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