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Criminal Miscellaneous Application No. 1083 of 1986, decided on 8th February, 1987.

‑‑‑Ss. 145 & 561‑A‑‑Quashing of proceedings under S. 145‑‑Dispute between parties over possession of shop‑‑Magistrate passing order under S. 145(1), Cr.P.C. after preliminary inquiry‑‑Parties asked to file written statements‑‑Simultaneously order under S. 145(4), Cr.P.C. passed for sealing the premises‑‑Petitioner not representing his case before Magistrate but rushing to High Court for quashing of order‑‑No legal flaw in order under 5.145(1), Cr.P.C. could be found to warrant interference in circumstances.

‑‑Ss. 145(1) & 561‑A‑‑Quashing of order under S. 145(4)‑‑No opportunity of hearing afforded to petitioner before making absolute order‑‑Operation of order suspended by High Court during pendency of such petition‑‑Magistrate, held, could pass ex parte order but he should not have made absolute order without affording opportunity to the petitioner‑‑Order set aside and Magistrate directed to hold inquiry on basis of order under S.145(1), Cr.P.C. in circumstances.

Shahnawaz and 3 others v. The Sub‑Divisional Magistrate, Nausheroferoz and others P L D 1974 Kar. 124 ref.

Umer Farooq Khan for Applicant.

Hassan Jaffer for Respondent.

Azizur Rehman Sheikh for the State.

Date of hearing: 8th February, 1987.

This application under section 561‑A, Cr.P.C. is directed against the proceedings under section 145, Cr.P.C. instituted before the Assistant Commissioner/S.D.M., Nazimabad, Karachi by the respondent Shafi Muhammad alleging that the applicant herein, namely Kamaluddin, had picked up disputes with him over a shop No. 1335 near the Clinic of Dr. Noorul Islam Father Colony Grex village, Maripur, Karachi and there was apprehension of breach of peace over the possession of the shop.

It appears from the record that the learned Magistrate passed an order under section 145(1), Cr.P.C. on 6‑7‑1986 that it was made to appear to him that there existed dispute between the applicant Shafi Muhammad (herein respondent) and the opponent Kamaluddin (applicant herein) over the possession of the shop and he called upon the parties to file written statement in respect of their claim of possession of the shop on 16‑7‑1986. Simultaneously, the learned Magistrate passed an order under section 145(4), Cr.P.C. for sealing the premises. Both these orders have been called in question to seek the quashment of the proceedings.

The learned counsel for the applicant has urged that the learned Magistrate passed a hasty order under section 145(4), Cr.P.C. and made order for sealing of the shop without hearing the applicant herein. Of course, he has not assailed the order under Section 145(1), Cr.P.C. The learned counsel for the respondent Shafi Muhammad has contended that the applicant had raised a serious dispute over the possession of the shop and the learned Magistrate had held enquiry and passed the order under section 145(1), Cr.P.C. on merits. He has next contended that since there was serious dispute between the parties, the learned Magistrate passed appropriate order under section 145(4), Cr.P.C. and attached the shop to avert immediate breach of peace. He has also contended that there is no illegality or impropriety in the order passed by the learned Magistrate. The learned counsel appearing for the State also has supported the impugned order.

It appears from the record that order under section 145(1), Cr.P.C. was passed after holding preliminary enquiry and he called upon the parties to file written statements as regards claim of their possession over the shop by a specified date. The applicant did not represent his case before the learned Magistrate but he rushed to the High Court to seek quashment of the proceedings. There does not seem any apparent legal flaw in the order under section 145(1), Cr.P.C. and the application cannot succeed on that score.

As regards the order under section 145(4), Cr.P.C. the learned Magistrate could pass ex parte order, and such procedure was approved in a case Shahnawaz and 3 others v. The Sub‑Divisional Magistrate, Nausheroferoz and others reported as PLD 1974 Kar. 124. However, the learned Magistrate should not have made an absolute order but he should have afforded an opportunity to the complainant before making the order absolute. Moreover, operation of this order was suspended by the order of this Court, dated 11‑8‑1986 passed during the pendency of this application. In the circumstances, this order does not need to be revived it stands set aside.

In the result, the application is partly allowed and partly dismissed. The Sub‑Divisional Magistrate is directed to hold the enquiry on the basis of order under section 145(1), Cr.P.C. and decide it within three months. It is further directed that the parties shall maintain status quo as obtaining today.

S.A./K‑8/K Order accordingly.

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