MOHAMMAD ZULFIQAR vs COURT OF ASSISTANT COMMISSIONER and 4 others

ORDER

' SYED MUHAMMAD FAROOQ SHAH, J.---Impugned is a notice under section 145, Cr.P.C. But since the word 'order' has been written on its caption, therefore, the applicant has approached this Court for quashment of proceedings of case No, 20 of 2015, pending in the Court of learned Special Judicial Magistrate/Assistant Commissioner, Gulberg and North Nazimabad.

2. A perusal of record reflects that through impugned letter/notice, the Respondent No, 02 and applicant were called upon to attend the said Court in respect of property in question. Such notice was issued on the report of SHO concerned under section 145, Cr.P.C. Dated 05.10.2015, in which he has shown apprehension of breach of peace between the both mentioned parties, over possession of House No, B-295, Block-L, North Nazimabad, Karachi.

3. Arguments heard. Record perused.

4. It is an admitted position that prolong litigation in between the both parties i,e, Applicant and Respondent No, 02 in the competent Court of law is/was pending as the father of applicant has filed Civil Suit No, 671/2004 against one Deen Muhammad Wagan and others, husband of previous owner Mst. Farkhunda Begum. However, the said suit was dismissed for non-prosecution vide order dated 22.04.2010 and no appeal was preferred against such order. Subsequently, the said Deen Muhammad Wagan has filed Civil Suit No, 413/1996, which was also dismissed. The documents annexed with the instant application show that earlier proceedings were also initiated under sections 107. 117, Cr.P.C. On the report of concerned police and the application under sections 3/4 of Illegal Dispossession Act, 2005 viz. Criminal Petition No, 124/2006 was also instituted by Deen Muhammad Wagan against father of Respondent, which was also dismissed mainly on the ground of civil litigation pending between the parties.

5. Section 145, Cr.P.C. Confers powers on the Magistrate to take preventive measures to ward off endanger disruption and maintain peac e and tranquility in the instant case, admittedly dispute over ownership of disputed house exists, which likely to cause breach of peace as reported by the concerned police. Bare reading of said provision of Code reveals that under the scheme of this section an empowered Magistrate can act if he is satisfied that the dispute likely to cause breach of peace exists and it is on such satisfaction alone that he shall make a preliminary order under subsection (1) and thereafter make an inquiry for deciding whether any and if so, which of the parties at the date of the order was in possession and thereafter he can proceed if emergent situation causing threats to peace exists. However, the Magistrate has no jurisdiction whatsoever to make an order regarding the subject of the dispute. The provisions of section 145, Cr.P.C., if reads as a whole, clearly indicate that there should be continuing danger for breach of peace till the time final order is made.

6. Perusal of the impugned notice issued under section 145, Cr.P.C. Is neither a preliminary order nor a final order, which in my humble view, is not contrary to the proceedings, which were sub judice before the Civil Court in respect of the property in dispute. However, after apprehension of breach of peace, the Magistrate can take action under sections 107, 151 and binding down the parties threatening to act in violation of civil proceedings in terms of an interim order, if exists. Prima facie, the learned Magistrate should have to act with care on her part that the dispute was sub judice or otherwise before the Court of competent jurisdiction so that she refrained herself by passing a contradictory and conflicting order as she lacks jurisdiction in the given circumstances. However, there is no cavil to the proposition that the proceedings under section 145, Cr.P.C. Are of temporary nature and are subservient to the finding of Civil Court, when Civil Court is seized of a matter and has passed an order in accordance with the circumstances of the case and the order has attained finality then no other authority has got any power to interfere into the jurisdiction of the Civil Court.

Suffice it to say that the jurisdiction of concerned Magistrate under section 145, Cr.P.C. Is not depended on a police or information received from any other quarter but it is depended on his being satisfied about the existence a dispute likely to cause breach of peace and further proceedings or nature of the orders to be passed by him are conditioned on such satisfaction. In the instant matter, neither the Magistrate has passed preliminary order nor a final order but he initiated the proceedings on police report regarding breach of peace, hence the impugned notice issued under section 145(i), Cr.P.C. To both the parties cannot be termed an illegal act amounts to abuse of process as the inherent powers on this Court under section 561-A, Cr.P.C. Are meant for doing substantial justice, to prevent the abuse of process of the Code or that of law and to pass any order by this Court securing ends of justice. Extraordinary circumstances do not exist in the instant case as to override express provisions of section 145, Cr.P.C., therefore, the proceedings pending before Respondent No, 1 cannot be quashed, more particularly, the said Court did not violate any provision, of law by committing gross irregularities or infirmities.

8(sic.) Resultantly, the captioned application filed for quashment of proceedings under section 561-A, Cr.P.C. Is dismissed, in view of the manners and terms mentioned above.