ABDUL WAHAB ZAKI Versus YOUSAF HUSSAIN KHAN AND 5 OTHERS

'These quashment proceedings are directed against an order, dated 8‑9‑1.986 passed by learned S.D.M. Malir, directing the handing over of the possession of the land and the water works to respondent No.1, Yousuf Hussain Khan.

2. The brief facts leading to the filing of the above quashment proceedings are that one Akhtar Gul, claiming to be the Chowkidar of Sahranpur Co‑operative Housing Society, hereinafter referred to as the Society, approached the Model Colony Police Station alleging that Gul Nawaz and Atta Mohammad were trying to take possession of the office of the Society illegally. It seems that upon the above report the A.S.I. Noor Khan made a complaint under section 145 Cr.P.C. before the S.D.M. Malir on 21‑4‑1985, in pursuance of which the learned S.D.M. passed the order, dated 22‑4‑1985 for attaching the office. It seems that Tamizul Hassan, present applicant No.2, claiming to be the Secretary of the Society filed an application on 24‑4‑1985 before the S.D.M. Malir stating therein that only office was attached/sealed but the land and the water works were not attached. He prayed that the same be attached as he apprehended dispute in respect of the same as well. Thereupon, the learned S.D.M. passed an attachment order of the land and of the water works on 24‑4‑1985. It appear that Yousuf Hussain Khan respondent No.1 in the present quashment proceedings filed Criminal Miscellaneous Quashment Application No. 135 of 1986 challenging the above 2 orders. A learned single Judge of this Court by his order, dated 1‑9‑1986 allowed respondent No.l's aforesaid application to the extent of quashment of the above order, dated 24‑4‑1985 but dismissed the same in respect of order dated 22‑4‑1985 as it was not pressed at that stage. It further seems that after the passing of the above order respondent No.1 filed an application dated 7‑9‑1986 to the S.D.M. claiming therein the High Court passed the order dated 1‑9‑1986 in his favour for handing over the possession of the land and the works mentioned in the heading of the application and enclosed the copy of the judgment of the High Court and prayed to pass orders on S.H.O. Model Colony in that respect. Thereupon, the S.D.M. on 8‑9‑1986 passed the order addressed to the S.H.O. Model Colony, 'please comply the orders of High Court. In pursuance of the above order a letter was issued by the S.D.M. on 8‑9‑1986 addressed to the S.H.O. directing him to restore the possession of the land and of the water works to respondent No.1 which order was complied with. Against the above order the preset two applicants, i.e. applicant No.1 Abdul Wahab Zaki, who is the present Secretary of the Society and applicant No.2 Tamizul Hassan, who is the present President of the Society filed Criminal Revision Application No.50 of 1986 which was dismissed by the learned Sessions Judge East Karachi, by his order, dated 18‑12‑1986 by observing that the revision application was in fact seeking clarification of the High Court's order dated 1‑9‑1986. The applicants have, therefore, filed the present application against the above order, dated 8‑9‑1986.

3. In support of the above application, Mr. Azizullah K. Shaikh, learned counsel for the applicants has vehemently urged that as result of the quashment order passed by the High Court on 1‑9‑1986 in Criminal Miscellaneous Application No. 135 of 1986 the learned S.D.M. should have held enquiry and should have restored the possession of the land and of the water works to the party from whom the possession was taken in pursuance of illegal order dated 24‑4‑1985 which was quashed by the High Court.

On the other hand Mr. A.Q. Halepota learned counsel for respondent No. 1, whose arguments were adopted by Mr. Usman Ghani Rashid learned counsel for respondents Nos. 4 and 5, has vehemently contended that since no proceedings under section 145, Cr.P.C. were pending before the S.D.M., he was not entitled to hold any enquiry as to the question of restoration of the possession and that factually the possession was restored to respondent No.1 on the basis of the documents available with the police including the Mashirnama relating to attachment.

4. It is true that since no proceedings were pending under 145, Cr.P.C. the High Court had quashed the attachment order, dated 24‑4‑1985 in respect of the land and the water works but in my view, upon the quashment of the above order, the duty was cast on the learned S.D.M. to have restored the possession to the party from whom the possession was taken when the above illegal order, dated 24‑4‑1985 was passed. In my view it is inherent requirement that without holding an enquiry the above illegal order could not have been undone. It may be observed that the contents of the application of respondent No.1 which he moved before the learned S.D.M. were not correct as there was no order of the High Court' ordering the restoration of the possession in favour of respondent No.1. The High Court order is only for quashment of the order, dated 24‑4‑1985. The parties were to be restored to ante status quo obtaining prior to the passing of the above attachment order and that could not have been done without holding some enquiry and providing opportunities to the parties. If there are documents with the police to indicate that factually possession was taken from respondent No.1 it is for respondent No.1 to rely upon the same when an enquiry is to be field, but the same could have been relied upon without providing an opportunity to the other party.

5. I would, therefore, allow the above application and quash the above order, dated 8‑9‑1986 passed by the learned S.D.M. Malir and would direct him that after hearing the parties after notice to them, to decide the question as to from whom the possession was taken in pursuance of the above order, dated 24‑4‑1985 and to restore the possession to the party from whom the possession was taken. I may observe that the learned S.D.M. is not required to go into the question of title. The only question which is to be decided by him is the factum from whom the possession was obtained on the above date.

I may further clarify that the learned S.D.M. is not supposed to go into the question as to why was in possession within two months prior to the date of passing of the above order. The only question for determination would be from whom the possession was taken on 24‑4‑1985.

With the above observations the Criminal Miscellaneous application stands disposed of.

S.A./A‑312/K ????????????????????????????????????????????????????????????????????????????????????? Order quashed.