SHAB MALIKHAN Versus STATE
The facts of the case which have occasioned this application under section 561‑A, Cr.P.C. are simple and may be briefly summed up.
2. Javaid Akhtar, the respondent No.2 is the owner of Flat No.0/9, Block‑16, Erum Centre, Gulshan‑e‑Iqbal, Karachi. He was in occupation of this flat when on 31‑7‑1990 he went to visit his relatives in North Nazimabad, Karachi, after locking it. On 4‑8‑1990 he returned to his flat when he found the present applicant occupying the same. On inquiry he learnt that the applicant had occupied this flat on 1‑8‑1990 after breaking open its lock. On 7‑8‑1990 the respondent No.2, went to applicant to persuade him to vacate his flat but he was maltreated. On 8‑8‑1990 the respondent No.2 filed a complaint against the applicant before Assistant Commissioner and S.D.M. Airport, Karachi, for raking action against him under section 145, Cr.P.C. The learned Magistrate initiated proceedings against the applicant and passed a preliminary order. The applicant appeared before the S.D.M. and filed his written statement denying the allegations made by respondent No.2 against him. His defence in main is that he is tenant of the disputed premises on a monthly rent of Rs.1,200 and the proceedings drawn against him had no legal sanctity. On 16‑10‑1990 the applicant fled the present application under section 561‑A, Cr.P.C. with a prayer that the proceedings drawn against him may be quashed.
3. I have heard Mr. Gul Zaman Khan, learned counsel for applicant, Mr. Muhammad Ali Jan, learned counsel for respondent No.2, and Mr. Habib‑ur Rasheed, learned counsel for the State. I have also gene through the record of this case carefully.
4. Mr. Gul Zaman Khan, learned counsel for applicant has contended with force that there was civil litigation between the parties in which an order for maintaining status quo was passed on 16‑10‑1990, viz. on the same day when the present application under section 561‑A, Cr.P.C. was presented before this Court, and in such a situation the proceedings drawn against the applicant under section 145, Cr.P.C. before the S.D.M. were not competent. He has further contended that the parties should be discouraged for using criminal Courts for settling civil disputes. Reliance is placed upon the following cases:‑
(i) Malik Manzoor Elahi v. Lala Bishambar Dass and another PLD 1964 SC 137.
(ii) Shah Muhammad v. Haq Nawaz and another PLD 1970 SC 470.
(iii) Shah Nawaz and 3 others v. Sub‑Divisional Magistrate, Noushero Feroze and 6 others PLD 1974 Kar. 124.
(iv) Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240.
(v) Daulat Ali v. Barkat Ali 1988 PCr.LJ 2337.
(vi) Shafiq Khan v. The State and Muhammad Saleem 1989 PCr.LJ 2455.
(vii) Mst. Khalida Rehman and 2 others v. Muhammad Aqil and another 1990 MLD 60.
(viii) Hafiz Muhammad Hussain v. The State and another 1990 PCr.LJ 827.
(ix) Dil Muhammad v. Noor Muhammad and 4 others PLD 1990 Azad J&K 15.
5. The facts of all the above cases arc distinguishable. The civil suit was filed by the applicant much after the initiation of proceedings under section 145, Cr.P.C. against him. The civil suit was also decided on 8‑1‑1991 on the statement made on behalf of respondent No.2, which along with the order passed thereon is reproduced below:‑
" STATEMENT ON BEHALF OF DEFENDANT "
The defendant does not admit the plaintiff's right of tenancy and states that plaintiff has illegally occupied the premises in question but shall not evict him forcibly.
Karachi (Sd.)
Dated. Advocate for Defendant.
8‑1‑1991 ORDER
Case called. Parties advocates are present. Learned counsel for the defendant Mr. Muhammad Ali Jan has filed a statement on behalf of the defendant as Exh.P.2 wherein he has stated that his client will not eject the plaintiff without due course of law/forcibly; Keeping in view of the statement the suit of the plaintiff stands disposed of in terms of statement. However, this statement will be binding upon the defendant and will have the force of injunction."
6. It is thus obvious that no civil litigation is now pending between the parties. The contention of learned counsel for applicant that there is no apprehension of breach of peace between the parties now is equally not tenable. The applicant has got a remedy under subsection (5) of section 145, Cr.P.C. and he can move the S.D.M. to cancel the order passed under subsection (1) of section 145, Cr.P.C., if he feels that no such dispute as alleged exists or has existed. The cases of Mst. Khalida Rehman and 2 others v. Muhammad Aqil and another reported in PLD 1988 Kar. 85 and Haji Muhammad Ashraf v. The State and 3 others reported in 1988 PCr.LJ 2268, are clear on this point. In both the above cases it was observed that the remedy, if any, to meet with such an exigency was under subsection (5) of section 145, Cr.P.C., and not by filing a criminal revision application or invoking the inherent jurisdiction of this Court.
7. In fact there was no occasion for the applicant to have filed the present application under section 561‑A, Cr.P.C. directly before this Court when a remedy under section 439‑A, Cr.P.C. was available to him. If he would have contested the proceedings under section 145, Cr.P.C. before the S.D.M. the point in issue must have been decided by now. It appears that he was mainly interested in protracting the proceedings in which he was successful.
8. No case for interference is made out and the application filed under section 561‑A, Cr.P.C. is hereby dismissed.
N.H.Q./S‑867/K Petition dismissed.