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Criminal Miscellaneous Application No. 294 of 1979, decided on 15th December, 1979.

---‑S. 561‑A read with S. 145‑Quashrnent of proceedings‑Dispute as 'to possession of immovable property‑Documents produced before lower Appellate Court in no way proving applicant having any concern with plot under dispute, on other hand police report showing applicant residing in premises other than disputed one- Lower Appellate Court also not referred to any evidence establishing either dispossession or likelihood of dispossession of applicant from plot in dispute by force, thereby persuading Magistrate for action under S. 145, Cr. P. C. ‑ Impugned order of lower Appellate Court whereby attachment order passed by Magistrate set aside, held, proper and legal‑Quashment declined, in circumstances.

S. Nasiruddin for Applicant.

Baboo Bhai Huda for A.‑G. for the State.

M. Shah for Respondents Nos. 2 and 3.

Date of hearing : 6th October, 1979.

This application, under section 561‑A, Cr. P. C. is filed for quashment of the order dated 26th March, 1979 passed by the learned Additional Sessions Judge, Karachi in Criminal‑ Revision Application No. 52 of .1979.

2. The brief facts of the case are that the applicant claims to be an allottee of Plot No. 1127 in P.I. B. Colony, Karachi, where he had been liv ing alongwith his brother. On the strength of the allotment, he had const ructed a house, and was in its possession since 1949. It is further stated in the application that one Qaiser Ali Siddiqui had challenged the right of the applicant in 1964, at the behest of the Management of the P. 1. B,. Colony and wanted to take forcible possession of the plot. Qaiser Ali Siddiqui had also filed a Civil Suit No. 335/64 in the Court of VIIth Civil Judge First Class Karachi, against the applicant, which is still pending. It is contended that the respondent No. 2 in the meantime, had approached the P. I. B. Colony for allotment of the Plot No. 1127, which was allotted to him on 14th December 1978.

3. On 8th February 1979, it is alleged, that the respondents Nos. 2 and 3 who are father and son, had committed criminal trespass on the plot No. 1127, for which the applicant had lodged the report, with the New Town Police. A case under section 4,48, P. P. C. was the two respondents. At the same time, the police had also instituted proceedings under section 144, Cr. P. C. during which, the S. D. M. Central Division Karachi, had ordered the attachment of the plot, by the order dated 24th February 1979, which was accordingly attached, by the police, on the following day.

4. Against the order of attachment, the respondents had filed an application under section 145 (5), Cr. P. C. before the learned praying for vacating the order of attachment. The learned. Magistrate rejected the application, against which the respondents had filed Criminal Revision Application No. 52 of 1979, in the which was allowed and the order of attachment, passed by the Magistrate was set aside, with a direction that the parties may seek appropriate relief, as to their title and possession, from the Court of law. It is against this order that this application for quashment of the same order has been preferred in this Court.

5. I have heard the learned counsel for the applicant Mr. S. Nasiruddin and Mr. M. Shah on behalf of the respondent. It appears that the respondent No. 2 was a member of P. 1. B. Cooperative Housing Society Limited Karachi. In October 1978, in lieu of another Plot No. 2078, which was under dispute, the respondent No. 2. was allotted Plot No. 1127, which was lying vacant and unclaimed. He had occupied the plot and had raised the construction thereon. Subsequently, he had applied for regularisation of this plot, which was accordingly done.

6. I have gone through the impugned order and I find that both, the applicant, as well as, respondents, claim the possession, as well as, ownership of the plot, and the house constructed thereon. The New Town Police had registered a case, under section 448, P.P.C. In addition, proceedings under section 145, Cr. P. C. were also instituted and the property under dispute was attached by the order of the learned S. D. M. During the arguments in the Court of Session, the learned Additional Sessions Judge had observed that the learned S. D. M. had not bothered to verify the documents, which were produced before him, and it appears that he had. not gone through them. The learned Additional Sessions Judge had himself gone through all the relevant documents, which were relied upon by the parties. He had no hesitation, in reaching the conclusion, that the documents on the record did not prove that the applicant was in possession of the disputed plot. It was further observed by the learned Judge that the school certificate, in the name of Mirza Yaseen Baig, had nothing to do with the possession of the property. The second document was the Ration Card in the name of S4ir,.a Salim Ahmad Baig. The third document was a permit or a Ration Card which was in the name of Rashida. The fourth document was purported to have been issued by P. I. B. Society Limited, in the name of Mirza Salim Ahmed Baig, who was shown as the allottee of the Plot No. 1127. In any case, these documents did not prove that the applicant had any concern with the plot under dis pute. The last document was the identity card of one Mirza Yaseen Ahmad Baig, who is said to be the brother of the applicant. On the other hand according to the police report, both, Mirza Azim Baig and Yaseen Baig, are shown to be the residents of 155/3 Martin Quarters and not of the Plot No. 1127 in P. I. B. Colony Karachi. In the result, the learned Judge was satisfied that not a single document was produced by the applicant, to prove his possession, or ownership over the disputed plot. In addition to this, the learned Judge at the lengthy hearings was not referred to any evidence, whereby the applicant was dispossessed or was likely to be dispos sessed by force, to pursuade the learned Magistrate for taking action under section 145, Cr. P. C. The existence of the dispute likely to cause breach of peace, should not be imaginary but should be supported by some‑ reliable evidence. The learned Additional Sessions Judge, on the basis of evidence, before him, had reached the conclusion that the respondents could not be dispossessed by way of proceedings under 145, Cr. P. C. which were institut ed, in an attempt to dispossess the respondents. He had therefore, set aside the order of attachment and .had directed the parties to seek appropriate relief in respect of their title and possession, from a competent Court of law.

7. I have carefully gone through the impugned order which is proper and legal. There is no reason to disturb it. In any case, the impugned order passed by the learned Additional Sessions Judge does not amount to an abuse of the process of the Court, for which the inherent powers of the High Court should be invoked. This application, in fact, is a second Revision Application, asking for setting aside the impugned order, and, ordinarily, it does not lie. I, therefore, find no merit in the application, which is accordingly dismissed.

Petition dismissed.

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