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Criminal Miscellaneous No. 5/Q of 1985, decided on 6th March, 1985.

‑‑‑Ss. 145 & 561‑A‑‑Quashing of proceedings‑‑Premises of private limited company attached in proceedings under S. 145, Cr.P.C.‑‑Dispute over replacement of petitioner from position of Managing Director‑‑Police report not mentioning existence of any emergency but accentuated estrangement of relations between parties (brothers) existing‑ Petitioners' supporters allegedly using fire‑arms, bound down for keeping peace‑‑Dispute regarding other property also existing‑‑Replacement of Managing Director assailed before another forum‑‑Genesis of such proceedings being an apprehension of breach of peace and emergency arising therefrom, held, apparently, justified action to prevent further aggravation of situation even if some lacuna was found in police report‑ Quashing petition dismissed.

‑‑‑S. 145‑‑Proceedings by Magistrate‑‑Possession of premises disputed and doubtful‑‑Question of fact to be proved in inquiry‑‑Proceedings being preventive and of preliminary nature‑‑Held, matter falls more for executive than judicial decision‑‑Denying respondents chance to establish their possession in inquiry would be pre‑emptive and would not call for interference to curb preliminary enquiry‑‑Petition for quashment was, therefore, dismissed.

Abid Hassan Minto for Petitioner.

Dr. G.S. Khan for the State.

M. Bilal for Respondents Nos. 2 and 3.

Date of hearing: 5th March, 1985.

The petitioner claiming himself to be the Managing Director of A.T.M. Corporation Limited (Oil Mill), Hassanabdal, seeks quashment of proceedings under section 145, Cr.P.C. whereby it was attached on 10‑2‑1985 in pursuance of a complaint of even date made to the police by his real brother Tahir Mahmood respondent No.2. It was complained that the petitioner with his partymen attempted to forcibly take possession of the mill by using fire‑arms in the morning and that due to likelihood of repeating such attempts there was an apprehension of breach of peace. The police took the matter to the local Magistrate suggesting its attachment due to emergency arising out of the disputed possession of the mill. Additionally some of the employees were bound down by them under section 107/151, Cr.P.C. The learned Magistrate, of course, acting accordingly attached the mill and issued notice to the petitioner for 24‑2‑1985 to show cause. On the said date perhaps due .to pre‑occupation in election duty, the case could not be taken up and was further adjourned.

2. The petitioner's case was that the mill already being in his possession as Managing Director, there was no occasion for him to take its possession forcibly; that the entire action completed the same day was mala fide arranged through the aegis of Deputy Commissioner, Gujrat, who was father‑in‑law of the respondent Tahir Mahmood; that it was an institution belonging to a private limited company in regard to which there lay no personal claim; and that there was neither any dispute nor emergency so as to call for attachment of the premises where scores of workers were employed to complete its construction. Mr. Abid Hassan Minto, Advocate, for him submitted, that the police report did not mention if there existed any emergency to attach the mill and that there being no other material before the learned Magistrate, he had no jurisdiction to order attachment of the factory.

3. The petition was seriously opposed by Mr. M. Bilal, Advocate for the respondents maintaining that besides the police report, the original complaint was also submitted before the learned Magistrate and that the same supplied sufficient information to him for taking a view that there existed an emergency to take action under section 145, subsection (4), Cr.P.C. He added that even if the order was defective in some respects, it could still be maintained as laid down in Muhammad Ishaque Chowdhury v. Nur Mahal Begum and others P L D 1961 S C 426 and Gharib Shah and 6 others v. Abdul Sattar P L D 1981 Quetta 21.

4, A perusal of the complaint (Annexure E/1) reveals en accentuated estrangement between the brothers especially over the appointment of Managing Director. There was the further allegation that the petitioner's supporters had used fire‑arms to forcibly take away the possession of the factory. Even some workers were bound down for keeping peace perhaps because there existed some emergency. Apparently these circumstances justified action which was intended to prevent further aggravation of the situation. Even if some lacuna was left in the; proceedings, it may not suffice to interfere as the matter falls more for an executive than judicial decision. The proceedings, besides being preventive, were of preliminary nature wherein the petitioner may show that there existed neither a dispute nor an emergency. The mere fact that one of the respondents was a son‑in‑law of a Deputy Commissioner would not necessarily mean that such an innocuous process was adopted only to deprive the petitioner from his possession over the mill. The record shows that the estrangement between them was smouldering even in regard to other properties situate at Faisalabad and further that they were fighting over the office of the Managing Director of this mill for quite some time past. No doubt the police omitted to mention in the Kalandara if there existed any emergency to call for the attachment of the mill, yet the main complaint did not fail to take note of it and since the same was as well before the learned Magistrate, he was free to make his own opinion based upon the information derived therefrom. The petitioner has been called upon to attend those proceedings so as to establish his credentials by proving the allegations levelled against him to be false. It seems that he is trying to stifle the present proceedings by resorting to extraordinary remedy of quashment.

5. Referring to a number of authorities Mr. Minto for the petitioner submitted that the proceedings were a cloak to dispossess him. As already remarked an enquiry has to be conducted in the matter because in the estimation of the learned Magistrate, the petitioner's possession over the mill was doubtful. It is a question of fact needing some sort of evidence which the petitioner might produce in those proceedings. It will rather be pre‑emptive to deny the respondents a chance in the said enquiry to establish their own possession. The claim that the mill was an institution in regard to which there could be no attachment was not all that unrestricted. The genesis for such proceedings is an apprehension of breach of peace and the emergency arising therefrom. It is a private limited company, owning the mill but the Directors thereof are either the father or the real brothers who admittedly are quarrelling among themselves even in regard to other property situate et Faisalabad etc. The replacement of the Managing Director through a resolution has been assailed before another forum and the same evidently, suggests the existence of bad blood between the parties.

6. For all these reasons the enquiry in question which is of preliminary nature may not be curbed. The petition seeking its quashment has no merit and is, therefore, dismissed.

S.A.

Petition dismissed.

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