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Writ Petition No. 4032 of 1982, decided on 12th October, 1982.

--------S. 561-A-Quashing of proceedings-Positive evidence existing to indicate apprehension of breach of peace on day proceedings under Ss. 145, 107/151, Cr. P.C. initiated by Police Officer after visiting spot-Respondent also holding decree of a Civil Court in respect of house in dispute and nothing on record even to prove petitioners' constructive possession of such disputed house on contrary peti tioners alleged to have forcibly taken possession thereof-Quashing of proceedings under Ss. 145, 107,151, Cr. P. C. declined, in circumstances.

Malik Manzoor Elahi's case P L D 1964 S C 137 ,ref.

The petitioners, through this writ petition are seeking quashment of the order dated 22nd September, 1983 of the learned Additional Sessions Judge, Gujrat. At the very outset the learned counsel has prayed that the writ petition may be treated as a petition for quashment of order dated 22nd September, 1982 of Additional Sessions Judge under section 561-A of the Code of Criminal Procedure read with Article 9 of the Provisional Constitution Order, 1981. In the alternative, he has prayed that he may be allowed to amend the petition. I- feel inclined to grant the prayer' of the learned counsel for the petitioners to treat their petition under section 561-A of the Code of Criminal Procedure.

2. The facts leading to the filing of this petition are that Muhammad Aslam husband of petitioner No. 1 and father of petitioners Nos. 2 to 5, was challaned for the murder of his mother-in-law. In 1966 when he was in jail, he executed a general power of attorney regarding the disputed house in favour of his father, Din Muhammad. Muhammad Aslam was sentenced to death and was executed in 1967. In 1971, Allah Ditta respondent, a brother of Muhammad Aslam deceased filed a civil suit against his father Din Muhammad claiming that the house in dispute had been gifted to him by his father about 6 months ago and that now he has gone back and is refusing to admit his claim. A decree was passed in his favour. The house was rented out to one Muhammad Azam, who vacated the same on 2nd November, 1980.

3. It is contended on behalf of the petitioners that the house was rented out by Allah Ditta on behalf of the petitioners and that he had been paying the rent to the petitioners after receiving the same from Muhammad Azam, the tenant. It is further contended that after the vacation of house by the tenant, Allah Ditta had handed over the keys to the petitioners on 2nd November, 1980 and that thereafter he changed his mind only after 2 days and lodged a report against the petitioners that they had forcibly taken possession of the house and that there was apprehension of breach of peace. The A.S.-I. who investigated the case, after inspection on the spot initiated proceedings under section 107/151, Cr. P.C. inter se the parties and also filed proceedings under section 145, Cr. P.C. It may be of interest to mention here that during the intervening period, i.e. from 1971 till the vacation of the house by the tenant, the petitioners had filed a civil suit which they had later withdrawn without any consequential relief.

4. Learned counsel for the petitioners has contended that the res pondent (No. 2) was neither in possession of the house on 4th November, 1980 nor during the preceding period of two months, and that in any case proceedings under section 145, Cr. P.C. could not have been taken as there was no apprehension of breach of peace. Learned counsel in this regard has placed reliance upon Malik Manzoor Elahi's case (P L D 1964 S C 157). So far as the legal position enunciated by their Lordships of the Supreme Court in the authority cited is concerned, there is no denial of the fact that if there is no apprehension of breach of peace, proceedings under section 145, Cr. P.C. are not feasible but in the present case there is positive evidence that there was apprehension of breach of peace. Pro ceedings under section 107/151, Cr. P.C. were taken by the Police Officer on the first day when he visited the spot and on the day he initiated proceedings under section 145, Cr. P.C. 1n the judgments of both the learned lower courts it is mentioned that proceedings under section 107/151, Cr. P.C. were taken inter se the parties. It is not the case of the petitioners that proceedings under section 107/151,. Cr. P.C. had been dropped before the judgment passed by the learned Magistrate or even by the revisional Court. So far 'as the question of possession within two months before 4th November, 1980 is concerned it is in evidence that the possession of the house was delivered by Muhammad Azam tenant to Allah Ditta on 2nd November, 1980. This fact is not even denied by the petitioners. I do not find any force in the contention of the learned counsel that Allah Ditta had after taking the possession from the tenant, delivered the same peacefully to the petitioners on. 2nd November, 1980 and had changed his mind within two days and lodged a complaint with the Police against the petitioners. This contention is not tenable in view of the fact that not only the decree exists in his favour but also for the reason that there is nothing on record to prove that the petitioners had rented out this house to the tenant or the tenant had made any payment of the rent to the petitioners as owners and as such even the constructive possession was never with the petitioners before the date, it is alleged that they had forcibly taken the possession.

I have gone through the judgment of the learned Additional Session Judge and I do not find any mis-appreciation of evidence or any illegality therein. No ground for inference is made out. The petition is dismissed in limine.

S.G.D. Petition dismissed.

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