ARMED HEMANI Versus THE STATE

ORDER

1. It appears that an application under section 145, Cr.P.C. was filed by the present applicant Ahmed Hemani before the learned S.D.M. Harbour Karachi West, on which he was pleased to issue notice to the opponent and the copy of order has been produced as Annexure `D'. Later on another order was passed by which it was ordered that the portion which was lying vacant on the ground floor shall be sealed and police guard be placed upto the decision from the competent Civil Court. The copy of the order has been annexed as Annexure ~`E'. It appears that on 12-8-1991 Mrs. Masooda Khalil moved an application to the learned S.D.M. which reads as under:--

2. "Subject: DESEALING OF RESIDENTIAL FLAT

3. Dear Sir,

4. I am an old lady and have been living on No.6, Queens Road for the last 41 years. The downstairs apartment which has been sealed was under my possession for the last 12 years. I use it for storing my luggage and my maid servant. I am having lot of inconvenience since it has been sealed. I have had no dispute and disagreement about it with any one till now, so could you kindly get it unsealed as early as possible.

5. Thanking you,

6. Sincerely yours,

7. (Sd.)

8. (MRS. MASUDA KHALIL)

9. That the learned S.D.M. without joining Mrs. Masuda Khalil as party/opponent allowed her application and directed the police to deseal the ground floor, and hand over the possession to her. This order does not bear any date. However, its certified copy has been produced as Annexure `G'..

10. I have heard the learned counsel appearing for the applicant that when Mrs. Masuda Khalil.moved an application for desealing the property,, the applicant was not given any notice and the learned S.D.M. has passed the order ex parte, and as such the same is against the principles of nature justice, mandatory provisions of law, and fundamental rights.

11. The learned counsel appearing for the respondent has contended that it is not mentioned in the application filed under section 145, Cr.P.C. that the portion in dispute was in possession of the present applicant and therefore, the learned Magistrate had rightly passed the order directing desealing of the same.

12. Mr. Habibur Rasheed learned counsel appearing for the State has contended that since impugned order was ex parte order, and the present applicant was not given an opportunity of being heard it was liable to be set aside.

13. I have considered the contentions and have gone through 'the documents. There is nothing on record to show that Mrs. Masuda Khalil moved any application to be joined as party to the proceedings as the proceedings under section 145, Cr.P.C. are in the nature of civil proceedings A and, therefore, it was necessary for her to apply first for being joined as party. It is also clear from the record that when she moved an application for desealing the ground floor portion, no notice was issued to the present applicant and therefore, the order on the face of it is against the principles of natural justice, mandatory provisions of law, and fundamental rights. On a question from Court, the learned counsel appearing for the respondent No.2 were not in a position to show as to what was the right of Mrs. Masuda Khalil, as far as her right to possess the ground floor portion was concerned, but they were not able to give any reply.

14. In view of the above circumstances, the order passed by the learned S.D.M. for desealing the ground floor portion at the request of Mrs. Masuda. Khalil is set aside, and the matter is remanded back to him for hearing the parties, and thereafter, he may pass any order in accordance with law. The parties are directed to appear before the learned S.D.M. on 20-10-1991.

15. N.H.Q./A-1159/K Case remanded.