MUHAMMAD YUSUF Versus THE STATE

1. This is an application under section 561-A, Cr.P.C. for quashment of proceedings pending against the applicant under section 145, Cr.P.C. before the District Magistrate Karachi (West).

2. The brief facts giving rise to the present application are that respondent No.2 Mohammad Ali filed an application under section 145, Cr.P.C. against the applicant before A.C/S.D.M. Liaquatabad. Karachi, inter alia alleging therein that a residential plot of land bearing No.R-408 in Block 16 Federal 'B' Area, Karachi, was originally owned by one Abdul Wajid Khan resident of Lasbela House Karachi That subsequently the above plot was purchased by Mst. Nafis Fatima wife of Mohammad Siddique vide agreement dated 14-9-1966. That the said Mst. Nafis Fatima sold out the above plot to him vide sale-deed dated 2-2-1974 and he was put in possession thereof. That he applied for mutation of record and the plot in question was transferred in. his name. That he applied to the K.D.A. Authorities for grant of permission for obtaining the loan and permission was granted on 26-7-1980. That the House Building Finance Corporation sanctioned Rs.1,00,000 as loan and the applicant/ respondent No.2 started the construction work on the said plot. That on 3-5-1984 while the construction work was in progress Tailor Master Mohsin, Dr. Ghazi and others came and forcibly trespassed in the above plot. That the respondent brought the above matter to the knowledge of local police but no action was taken. The applicant, therefore, filed the above proceedings on 14-5-1984. The learned S.D. M. was pleased to forward the above application to S.H.O. Joharabad for inquiry and report. The S.H.O. submitted his report before the S.D.M. on the same date i.e. 16-5-1984. On 19-3-1985 the present applicant Mohammad Yousuf moved an application under section 145(5), Cr.P.C. before the learned D.M. on which the learned District Magistrate was pleased to drop the proceedings after hearing the parties, vide order dated 7th November, 1985. The respondent No.2 challenged the above order before this Court vide Criminal Revision Application. No.130 of 1985 which was withdrawn by the learned counsel appearing for the respondent Mohammad Ali on 31-3-1986. On 27-4-1986 respondent Mohammad Ali moved an application for setting aside the order dates 31-3-1986 and restoration of his revision application. The said application came up before the Court on 17-11-1986 and the following order was passed:----

3. "Mr. Gul Zaman does not press this application but requests that pending proceedings to be continued. To this request learned A . A . G and Advocate for respondent have no objection.

4. The proceedings under section 145 Cr.P.C. are pending before District Magistrate (West), Karachi. He is directed to decide the case within two months, and provide opportunity to parties to adduce their evidence. With these observations the application is disposed off.

5. Notice issued to Mr. Muhammad Ejaz Choudhry is discharged.

6. That later on the present applicant Mohammad Yousaf received summons fro the learned District Magistrate (West) to appear before present quashment application has, therefore, been filed for the quashment of the proceedings if any pending before the learned District Magistrate Karachi (West).

7. I have heard the learned counsel appearing for the parties and have gone through the documents.

8. It was contended by Mrs. Salima Nasiruddin learned counsel appearing for the applicant that the proceedings under section 145, Cr.P.C. were dropped by the learned District Magistrate vide his order dated 7th November, 1985 (which has been produced as Annexure 'Al4') and. the order dated 17-11-1986 passed by this Court in Criminal Revision Application No. 130 of 1985 was passed due to misrepresentation of facts by Mr. Gul Zaman Khan Advocate inasmuch as no proceedings were pending under section 145 Cr.P.C. against the applicant Mohammad yousuf before the District Magistrate, Karachi (West) and therefore -there was no question of continuing with the said proceedings.

9. Mr. Gul Zaman Khan learned counsel appearing for respondent Mohammad AU was not in a position to controvert this factual position.

10. Mr. Abdul Wali Makhdoom learned counsel appearing for the State has contended that the order dated 17-11-1986 was obtained by misrepresentation. In fact the proceedings were already dropped by the learned District Magistrate and there was no question of continuing with the said proceedings. He has supported the quashment application.

11. I have considered the contentions. The order dated 7th November, 1985, passed by the learned District Magistrate Karachi (West) clearly shows 'that since the matter is still sub-judiced before the competent Civil Court and there is no imminent apprehension of breach of peace in the locality as the parties are living at far off places from each other and thus I do not find jurisdiction to continue the proceedings which are accordingly stopped and proceedings under section 145, Cr.P.C. stand disposed of.

12. In view of the above clear order, the contention of Mrs. Salima Nasiruddin is correct that there were no proceedings pending before the District Magistrate on 17-11-1986 and the order passed by this Court was obtained by misrepresentation of facts.

13. In view of the above position I allow this application and quash proceedings including notices issued to the applicant Mohammad Yousaf by the learned District Magistrate Karachi (West) under section 145 Cr.P.C.

14. However, I hereby warn Mr. Gul Zaman Khan, Advocate for the respondent Mohammad Ali to be careful in future, otherwise the matter will be referred against him to the Provincial Bar Council for taking appropriate action for misconduct against him.

15. I had decided the above matter by a short order dated 27-9-1987 and these are the reasons for the same.

16. S.A./M-408/K Proceedings quashed.