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Criminal Miscellaneous Application No. 1115 of 1986, decided on 26th October, 1986.

‑‑‑Ss. 107/151, 145(1)(4) & 561‑A‑‑Quashing of proceedings‑‑Dispute over immovable property‑‑Preliminary order passed by Magistrate not disclosing airy apprehension of breach of peace concerning property in dispute nor any other material available on record indicating any necessity for proceedings in the matter under S. 145(1); Cr.P.C.‑‑Applicant admittedly in possession of disputed shop at time of passing of impugned order and no allegation that possession of premises in question acquired by applicant within two months of passing of order under S. 145(1), Cr.P.C.‑‑In absence of any apprehension of breach of peace proceedings under S. 145(1), Cr.P.C., held, could not be taken nor civil right could be settled through summary procedure laid down in S. 145, Cr.P.C.‑‑Proceedings quashed, in circumstances.

Nazir Ahmed Siddiqui for Applicant.

Mushtaq Ahmed Chaudhry for Respondents.

Date of hearing: 26th October, 1986.

The applicant is the widow of late Muhammad Rafiq. According to the applicant, she is residing in the upper two rooms on Plot No. 15‑B, Area, Liaquatabad, Karachi, measuring 40 sq yards alongwith the minor children since long before and after the death of her husband. There are two small shops out of which one is with the tenant and the other is in possession of the applicant. The respondent No. 2 has moved an application before the Assistant Commissioner and Sub- Divisional Magistrate, Liaquatabad, Karachi. The learned Magistrate proceeded with the matter and passed an order under section 145(1), Cr.P.C. on 8‑7‑1986 and notice was issued for filing the written statement. On the same day he passed another order that the present applicant was avoiding the proceedings, he has, therefore, passed an order under section 145(4), Cr.P.C. The applicant appeared before the learned Magistrate alongwith her counsel and submitted an application for vacating the order passed under section 145(4), Cr.P.C. but in spite of various adjournments no order was passed by the learned Magistrate. The respondent No. 2 was not present of any date of hearing. The applicant being aggrieved has filed the present application.

I have gone through the order of the S.D.M. which shows that an application was moved by the respondent No. 2 to the S. D. M. that the applicant had forcibly occupied the shop in question. This application is without any date but it appears that the same was marked to the police for enquiry. The police submitted the report on 2‑7‑1986 in which it has been clearly stated that the applicant is in possession of the disputed shop. On this application the learned Magistrate passed an order, registered the case and issued notice under section 145(1), Cr.P.C.' This order was passed on 3‑7‑1986. On 8‑7‑1986 another order was passed by the S.D.M. that a report under section 145, Cr.P.C. was received, registered the case and issued notice under section 145(1), Cr.P.C. to the parties for filing the written statement. In spite of the fact that on 3‑7‑1986 the Court had directed for issuance of notice but it appears that no notice was served upon the applicant. Again on 8‑7‑1986 it was ordered by the Court that notice be issued to the parties for filing the written statement but without waiting for the service of the notice, the learned Magistrate on the same day on the application filed by the respondent No. 2 sealed the shop in question under section 145(4), Cr.P.C. The preliminary order under section 145, Cr.P.C. does not show that there was any apprehension of breach of peace concerning the property in dispute. The material on record also does not indicate that there was any necessity for proceedings in the matter under section 145(1), Cr.P.C. In the absence of any material the order under section 145 (1) , Cr. P . C . could not be maintained as the preliminary order in accordance with the provision of section 145(1), Cr.P.C. has not been passed. As regards the order under section, 145(4), Cr.P.C., the admitted position is that the applicant was in possession of the disputed shop at the time of passing the impugned, order as is clear from the report of the police and the statement of they complainant herself made in the complaint. It has not been alleged that the possession of the premises in question was acquired by the applicant within two months of the passing of the order under section 145(1), Cr.P.C. It is also borne out from the record that no breach of peace concerning the disputed shop has arisen between the parties. If there was an apprehension of breach of peace the proceeding under section 107 or 151, Cr.P.C. could be taken but the provisions of section 145, Cr.P.C. could not be initiated to dispossess a party in possession. Civil rights cannot be settled through the summary procedure laid down in section 145, Cr.P.C. It is an abuse of the process of the Court, therefore, the criminal miscellaneous application is allowed. The proceedings pending in the Court of S.D.M. Liaquatabad, Karachi, are quashed. The shop shall be unsealed.

S. G. D. Proceedings quashed.

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