Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Mst. ASMA KHURSHEED and another VS Respondent: STATION HOUSE OFFICER, AABPARA ISLAMABAD and another
Court Name: Islamabad High Court Judge(s): Athar Minallah Title:Mst. ASMA KHURSHEED and another vs STATION HOUSE OFFICER, AABPARA
ISLAMABAD and another Case No.: Writ Petition No. 4173 of 2017 Date of Judgment:2017-12-18 Reported As: 2018 P Cr. L J 674 Result: Petition allowed. Judgment ORDER ATHAR MINALLAH, J.---The petitioners have invoked the jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") assailing order dated 07-12-2017, passed by the Assistant Commissioner (City)/Sub-Divisional Magistrate, ICT, Islamabad (hereinafter referred to as the "respondent No. 2"). The impugned order has been passed under section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Cr.P.C."). 2. The facts, in brief, are that Ms. Asma Khursheed (hereinafter referred to as the "petitioner No. 1"), Ms. Shahnaz Wissal, Javed Khursheed and Naveed Khursheed are siblings. Their father, namely, Syed Khursheed-ul-Hassan owned House No. 36, Bazar Road, G-6/4, Islamabad (hereinafter referred to as the "Property"). The petitioner No.2 i.e. Babar Ali is the son of the petitioner No. 1. During the life time of Syed Khursheed-ul-Hassan the marriage of the petitioner No. 1 had ended in divorce and thereafter she started living with her parents in the Property since 1992. The Property was later transferred by the father in the name of his wife and mother of the petitioner No. 1, namely, Syeda Khursheed. It is the case of the petitioner No. 1 that the Property was gifted to her by the father and possession was also delivered, and the same is manifested by the fact that she has been living therein since 1992. The mother, namely Syeda Khursheed, executed a declaration of gift in relation to the Property and pursuant thereto it was transferred in the name of Naveed Khursheed i.e. brother of the petitioner No. 1 vide transfer letter, dated 10-07-2006. It is alleged by the petitioner No. 1 that the transfer was based on fraud and deceit. Syeda Khursheed had filed a suit against the petitioner No. 1 for possession of the Property through ejectment, recovery of mesne
---
## Page 2
profit and permanent injunction. The said suit was filed on 01-06-2005 and was later decreed in her favour vide ex parte judgment and decree, dated 05-05-2006. Syeda Khursheed then filed an execution petition. The petitioner No. 1 filed an application for setting aside the ex parte judgment and decree, dated 05-05-2006. Likewise, Naveed Khursheed also filed a petition. However, Syeda Khursheed appeared before the executing court and recorded a statement to the effect that she did not want to pursue the matter and, therefore, she had made a request to withdraw the execution petition. She had also filed an affidavit which was placed on record as Mark-A. After the recording of her statement, the execution petition filed by Syeda Khursheed was dismissed as withdrawn, pursuant to her statement recorded vide order dated 08-04-2008. The ex parte judgment and decree, dated 05-05-2006, was not executed and as a consequence the petitioner no. 1 continued living in the Property. The petitioner No. 1 filed a suit seeking declaration, cancellation of transfer proceedings/ letter, dated 10-07-2006 in favour of her brother, namely Naveed Khursheed. The amended plaint was filed in May 2014 wherein it was, inter alia, explicitly asserted that she had been living in and was in possession of the Property since 1992. Naveed Khursheed, through his attorney, namely. Ibrar Hussain, contested the suit by filing a written statement. The factum of possession of the petitioner No. 1 was not disputed in the written statement, though it is asserted therein that she has been living as a licensee. The petitioner No. 1 along with the suit had also filed an application under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "C.P.C.") and the same was accepted by the learned Civil Judge 1st Class, Islamabad, vide order dated 11-01-2017. The injunctive order was granted, inter alia, on the ground that the possession of the petitioner No. 1 was not disputed. Naveed Khursheed, through his attorney, namely Ibrar Hussain, filed an appeal before the learned Addl. District Judge, Islamabad (West), Islamabad. The learned appellate Court, vide order dated 30-11-2017, accepted the appeal and consequently set aside the order dated 11-01-2017. The petitioner No. 1 filed a revision i.e. C.R. No. 418/2017 before this Court and vide order dated 12-12-2017, passed therein, the parties have been directed to maintain the status quo. It is alleged that on 03- 12-2017 i.e. after the learned appellate Court accepted the appeal and had set aside the order dated 11-01-2017, the attorney of Naveed Khursheed, namely Ibrar Hussain, along with 25 to 30 accomplices, who were equipped with firearms, trespassed the Property in an attempt to forcibly dispossess the petitioners and take over possession of the Property. Pursuant to a written complaint filed by Ibrar Hussain, FIR No. 352/2017, dated 03-12-2017, was registered at the Police Station Aabpara, Islamabad. Perusal of the said FIR shows that as per the version of the attorney of Naveed Khursheed, they were called to the Property by the petitioner No. 1 and her son petitioner No.2. The version of the said attorney recorded in the FIR reaffirms that the petitioners were in possession. On the other hand, pursuant to a written complaint of the petitioner No. 1, FIR No. 353/2017, dated 03-12-2017 was also registered at Police Station Aabpara, the contents of which allege that Ibrar Hussain had attempted to forcibly dispossess them from the Property. The record as well as the two aforementioned criminal FIRs affirm that the petitioners were in possession since 1992, particularly on 03-12-2017. 3. The Incharge of Police Station Aabpara, instead of protecting the petitioners from being forcibly and illegally dispossessed, and taking timely action to apprehend the alleged aggressors, sent a report i.e. Qalandra, dated 04-12-2017, to the Assistant Commissioner (City)/Sub Divisional Magistrate, ICT, Islamabad i.e. the respondent No. 2, recommending sealing of the Property under section 145 of the Cr.P.C. It is noted that the alleged attempt to forcibly dispossess the petitioners unlawfully had taken place during the day on 03-12-2017 and thereafter, till the sending of the said report, no untoward incident had taken place for any apprehension that there was any likelihood of a breach of peace. The respondent No. 2, upon receiving the report/Qalandra, also appears to have taken his time and passed the impugned order on 07-12-2017 whereby he directed the
---
## Page 3
Incharge Police Station to attach/seal the Property wherein the petitioners had been living since 1992. For the purposes of adjudication of the instant petition, the relevant portion of the impugned order is reproduced below: "Qalandra under section 145, Cr.P.C. made by Police Station Abpara and forwarded by ASP Abpara and DSP Legal ICT was received in the court of undersigned. As per the police report a civil suit is pending between the parties in the civil court and upon vacation of stay order one of the party i.e. Mr. Ibrar Hussain along with 25 to 30 people equipped with weapons tried to vacate the House No. 36 Gali No. 80, Begum Sarfraz Road Sector G-6/4. As a result of his action extreme fight took place between the parties and FIR No. 352/17 under sections 427, 148/149 and 337-F(2)/324, P.P.C. and FIR No. 353/17 under sections 148/149, 506(ii)/109, 448/511 and 427, were registered against the parties. In addition, as per the police report both the parties are giving life threats to each other and a Qalandra under sections 107/150, Cr. P. C. has also been initiated by the concerned police station. The cause of action to such breach of peace is the property in question i.e. House No. 36 Gali No. 80 Sector G-6/4 Islamabad." 3(sic.) It is obvious from the above that the report sent by the Incharge Police Station had unequivocally mentioned that the attorney of Naveed Khursheed; namely Ibrar Hussain, along with 25 to 30 other persons, who were armed with weapons, had tried to forcibly dispossess the petitioners from the disputed property. However, the said order was not acted upon till 11-12-2017. On the said date police officials, under the supervision of the respondent No. 2, sealed the Property despite the fact that the petitioners were residing therein. Nothing has been placed on record, rather it was conceded before this Court that between 03-12-2017 till dispossessing the petitioners from the Property on 11-12-2017, no untoward incident had taken place even to remotely suggest that there was a likelihood of breach of peace. At the time of sealing the Property it is alleged that there was resistance from the petitioners and, therefore, a criminal case i.e. FIR No. 365/2017, dated 11-12-2017, was registered against them. It is alleged by the petitioners that the respondents had virtually dragged them out of the Property. The petitioners have, therefore, challenged the proceedings taken by the respondents and the order, dated 07-12-2017, passed by the learned Assistant Commissioner (City)/Sub Divisional Magistrate, ICT, Islamabad under section 145 of the Cr.P.C. 4. Pursuant to the issuance of notices, Lt. (Retd.) Saad Bin Asad, Assistant Commissioner (City)/Divisional Magistrate, ICT, Islamabad, along with his private counsel and Mr. Khalid Mahmood Awan, Incharge Police Station Aabpara, put up appearances on 13-12-2017. The latter was asked as to who was in possession of the Property at the time of its sealing. He unambiguously referred to the petitioners. The former, however, sought time to go through the record and then to pass an order. The respondents were asked whether after the attempt to forcibly evict the petitioners on 03-12-2017 any incident had taken place so as to give rise to an apprehension of a possible breach of peace. They answered in the negative. They were also asked whether the alleged aggressors had been arrested. They answered that they had obtained anticipatory bails from the competent court. It was obvious that since, admittedly, there was no likelihood of a breach of peace and that the petitioners had been in possession, therefore, this Court expected that the learned respondent No. 2 would recall his order and restore possession to the petitioners. He was, therefore, granted time and the hearing was adjourned for the next day. The learned respondent No. 2 was unable to give any plausible explanation for attaching and 'sealing the Property when there was no other incident, except an attempt by armed men to take the law in their hands so as to forcibly take possession of the Property. Neither the Incharge Police Station nor the learned Assistant Commissioner (City)/Sub-Divisional Magistrate denied their duty to protect the fundamental rights of the citizens. 5. On 14-12-2017 the respondents appeared in court again.. However, the learned Assistant
---
## Page 4
Commissioner (City)/Sub-Divisional Magistrate, ICT, Islamabad instead of withdrawing the order dated 07-12-2017, wanted to proceed in the matter on the ground that he had to ascertain the rights of the parties after affording them an opportunity of hearing. The respondent No. 1 informed the Court that he had sent a report to the Assistant Commissioner (City)/Sub-Divisional Magistrate, ICT because some of the persons who had tried to forcibly take possession of the Property on 03- 12-2017 had criminal records and that they were previously involved in such activities. He was asked whether, as public functionaries entrusted with the obligation of enforcing the writ of the State, he and others were terrorized by such elements thus necessitating attaching a Property and dispossessing citizens. He had no answer. 6. Ch. Abdul Khaliq Thind and Mr Naeem Gujjar Advocates had appeared on behalf of the attorney of Naveed Khursheed, namely Ibrar Hussain. They were also heard at length on 14-12-2017. They also unequivocally admitted that the petitioners were in possession of the Property. However, according to their statement the petitioners had been evicted pursuant to judgment and decree, dated 05-05-2006, but they had taken over the possession in 2008. They were asked to show any document whereby possession at any stage was taken from the petitioners and handed over to Naveed Khursheed or his attorney, namely Ibrar Hussain, after the proceedings for the execution of ex parte judgment and decree, dated 05-05-2006, were dismissed as withdrawn pursuant to the statement recorded vide order dated 08-04-2008. They candidly conceded that there was no such document and that the petitioners were in possession at the time of sealing of the Property. 7. Mr Riaz Hanif Rahi, Advocate, had appeared on behalf of the Assistant Commissioner (City)/Sub- Division Magistrate, ICT , Islamabad and had argued that the instant constitutional petition was not maintainable; the Sub-Divisional Magistrate/Assistant Commissioner (City) ICT, Islamabad was empowered to seal the Property pursuant to powers conferred under section 145 of the Cr.P.C. After hearing the respondents and the counsels on 14-12-2017 they were afforded an opportunity to submit their written replies/submissions and the case was adjourned for 15-12-2017. 8. The absence of the learned Advocate General was conspicuous and, therefore, he was also directed to appear on 15-12-2017 in the light of the law enunciated by the august Supreme Court in the judgment, dated 03-02-2017, rendered in Civil Appeal No. 1216/2015, titled 'Rashid Ahmed v. Federation of Pakistan etc.'. Pursuant to the said direction the learned Advocate General, Islamabad, put up appearance on 15-12-2017. He was asked as to why he had not appeared earlier, to which he answered that neither the Chief Commissioner nor the respondents had informed him regarding the present proceedings. He, however, conceded that the proceedings under section 145 were not in consonance with the law. Taking a fair stance, he stated that the respondent No. 1, instead of sending a report to the respondent No. 2, was under the duty to apprehend the alleged aggressors and provide appropriate protection to the petitioners. Neither could he defend the attachment and sealing of the Property in the facts and circumstances of the instant case. 9. Despite the last order and giving an opportunity for submitting written submissions, no one appeared on 15-12-2017 except Mr Khalid Mahmood Awan, Incharge Police Station, Aabpara, who also submitted a written report. In reply to a question by the Court he unequivocally stated that there had been no likelihood of a breach of peace either on 07-12-2017 or 11-12-2017. He has provided copies of FIRs registered against some of the persons who had tried to take the law in their hands. Perusal of the said FIRs suggests that one of the accused is related to a retired senior police official. However, it would be appropriate to avoid any observation lest it may prejudice the pending proceedings. 10. Ms. Raheema Khan, Advocate High Court, appeared on behalf of the petitioners and contended that; the respondent No. 2 had sealed the Property without jurisdiction and bypassing the codal formalities and legal procedure prescribed under section 145 of the Cr.P.C.; the petitioners were in possession and have remained so since 1992 and, therefore, they could not have been
---
## Page 5
dispossessed through the powers vested under section 145 of the Cr.P.C.; there was no apprehension of a breach of peace, rather it was the duty and obligation of the respondents to have provided security and protection against the armed people who were trying to forcibly evict them; the respondents have been bending over backwards to facilitate the accused in getting possession of the Property and to dispossess the petitioners; reliance has been placed on the case of "Haji Abdullah Jan Marwat v. Prof. Burhan ud Din and 3 others" [PLD 2011 Peshawar 2461 and "Chaudhry Munir v. Mst. Surriya and others" [PLD 2007 SC 1891; the mandatory provisions under section 112 of the Cr.P.C. have been violated; the impugned order, dated 07-12-2017, had been passed by the respondent No. 2 in a mechanical manner nor could jurisdiction have been exercised under section 145 of the Cr.P.C.; there was no likelihood or apprehension of a breach of peace, rather the Property, in possession of the petitioners, was trespassed and the accused had tried to forcibly dispossess them; the dispute regarding the Property is pending before the learned civil court and, therefore, the respondent No. 2 could not have exercised jurisdiction; section 145 of the Cr.P.C. is intended to restore possession of those who may have been illegally dispossessed; powers under section 145 of the Cr.P.C. cannot be exercised so as to evict persons who are in lawful possession for several years; no breach of peace was caused and the criminal cases were used as a pretext to dispossess the petitioners so as to benefit the other party, namely Naveed Khursheed and his attorney, Ibrar Hussain; the possession of the Property is being regulated by the civil court and this Court vide order, dated 12-12-2017; has also directed the parties to maintain the status quo; the respondent No. 2 gravely abused the discretion vested in him; reliance has been placed on the case law cited in the written arguments. 11. The learned Advocate General and the learned counsel have been heard while record was perused with their able assistance. 12. It is an admitted position that there is a dispute between the petitioner No. 1 and her brother, namely Naveed Khursheed, in respect of the Property. The former has filed a suit and the same is pending before a competent Court. The learned trial Court had granted the application filed under Order XXXIX, Rules 1 and 2 of C.P.C. and consequently passed an injunctive order. Perusal of the record shows that the Property, being in possession of the petitioners since 1992, is not disputed. However, in the written statement filed by Naveed Khursheed through his attorney, namely, Ibrar Hussain, it is only asserted that the petitioner No. 1 is living in the Property as a licensee. The injunctive order, dated 11-01-2017, passed by the learned trial Court was set aside by the learned appellate Court vide order dated 30-11-2017. It is also an admitted position that the petitioners were in possession of the Property on 03-12-2017 i.e. when the alleged incident of trying to forcibly evict them had taken place. The facts mentioned in the report dated 04-12-2017, sent by the respondent No. 1 to the respondent no. 2 for initiating proceedings under section 145 of the Cr.P.C., have been reiterated in the order dated 07-12-2017 passed by the latter. It is unequivocally recorded therein that Ibrar Hussain, attorney of Naveed Khursheed, along with 25 to 30 other persons, armed with weapons, had tried to forcibly get the Property vacated. It is also not denied that between 03-12- 2017 and the passing of the order, dated 07-12-2017, or till 11-12-2017 when the petitioners were evicted and the Property was sealed under the supervision of the respondent No. 2, no untoward incident, let alone a breach of peace, had taken place. It is also an admitted position that the learned Assistant Commissioner (City)/ Sub Divisional Magistrate, ICT, Islamabad had personally supervised the sealing of the Property whereby the petitioners were evicted and thus dispossessed. Serious allegations of violating the right of privacy guaranteed under Article 14 of the Constitution have been raised by the petitioners against the respondents. A criminal case has also been registered alleging that there was resistance at the time of dispossessing the petitioners. It has also been candidly admitted by the Incharge of Police Station Aabpara that some of the accused aggressors have criminal records. There is nothing on record to even remotely suggest that there
---
## Page 6
was any likelihood of a breach of peace after the failed attempt by armed aggressors on 03-12- 2017 to get the Property vacated otherwise than in due course of the law. The impugned order, dated 07-12-2017, speaks for itself. The Property is situated in one of the prime sectors of the Federal Capital of the Islamic Republic of Pakistan. 13. The questions which emerge for consideration in the instant petition are as follows: a) Whether the respondents Nos. 1 and 2 have acted lawfully? b) Whether circumstances existed to exercise jurisdiction under section 145 of Cr.P.C. either by passing impugned order, dated 07-12-2017 or subsequent sealing of the Property on 11-12-2017? c) Whether the Property could have been sealed and the petitioners evicted when no untoward incident had taken place after 03-12-2017? d) Whether the manner in which the respondents have exercised their powers tantamount to dereliction and misfeasance of official functions and duties? 14. In order to answer the above questions it would be advantageous to examine the provisions of section 145, Cr.P.C. and the principles and law laid down by the superior Courts in this regard. Section 145 of Cr.P.C. consists of ten subsections. Subsection (1) of section 145 empowers a Magistrate of the 1st Class to make an order in writing requiring the parties concerned to a dispute to attend his Court in person or by pleader when the latter is satisfied that such a dispute is likely to cause a breach of peace concerning any land or water or the boundaries thereon. It is unambiguously provided that such an order is made so as to require the parties concerned to put in their respective written statements of their claims in respect of the fact of actual possession of the subject dispute. Subsection (2) describes the expressions 'land' and 'water'. Subsection (3) prescribes the manner for the purposes of service of summons. Subsection (4) provides that after passing an order under subsection (1) of section 145 the Magistrate, without reference to the merits or the claims of the concerned parties to a right to possession of the subject of dispute, peruse the statements, hear the parties receive evidence, consider the effect of evidence, so as to decide whether any and which of the parties was at the date of the order passed under subsection (1) in possession of the land. Subsection (4) has two provisos. The first proviso contemplates that if it appears to the Magistrate that any party within two months next before the date of such order i.e. under subsection (1), has been forcibly and wrongly dispossessed then he may treat the party so dispossessed as being in possession on the date of passing the order. The second proviso empowers the Magistrate to attach the subject of dispute pending his decision referred to in subsection (4). However, such power is subject to satisfaction of the Magistrate that it is a case of emergency. Subsection (5) further empowers the Magistrate to cancel an order passed or to stay further proceedings in eventualities mentioned therein. Subsection (6) explicitly provides that the party, which is determined to be in possession shall be declared to be entitled to retain the same until evicted in due course of law. It is further provided that in an eventuality of a determination made under the first proviso to subsection (4), the possession is required to be restored in favour of the person who was forcibly and wrongfully dispossessed. Subsection (7) deals with the eventualities when a party dies during the proceedings. Subsection (8) empowers the Magistrate to deal with goods or items which are subject to speedy and natural decay. Subsection (10) explicitly provides that the powers under section 145 are not in derogation of the independent power vested under section 107 of Cr.P.C. Section 146 contemplates powers of the Magistrate to attach a property in the event that the latter is unable to satisfy himself as to which of the party was in possession at the relevant time. Section 107 of Cr.P.C. vests the power in a Magistrate to take appropriate measures to prevent a person who is likely to commit breach of peace etc. Section 151 empowers a police officer who knows of a design to commit any cognizable offence to arrest a person so designing without the permission or obtaining warrant from a Magistrate if it appears to him/her that the commission of the offence cannot be otherwise prevented.
---
## Page 7
15. I would now advert to the precedent law relating to exercise of jurisdiction and powers under section 145 of Cr. P.C. The august Supreme Court in the case titled "Muhammad Ishaque Chowdhury and another v. Nur Mahal Begum and others", [PLD 1961 Supreme Court 426] has observed and held as follows: "It is necessary, according to the tenor of the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.