Haji SANAULLAH vs KHALIQ DAD And 3 Others
This criminal acquittal appeal is directed against the order passed by the Judicial Magistrate, Kharan, whereby an application under section 249-A of the Code of Criminal Procedure 1898 was allowed and the respondents were acquitted of the charge under sections 447 and 147 of the Pakistan Penal Code 1860. The core legal question involves the propriety of an acquittal under section 249-A when a genuine dispute regarding ownership and actual physical possession of the land is already pending adjudication in a civil court. The court held that where ownership and factual possession are disputed and a civil suit is pending, the entry of a person claiming title does not constitute criminal trespass, and the acquittal order warrants no interference. The key principle laid down is that criminal courts should not interfere or hold a party liable for criminal trespass under section 447 of the Pakistan Penal Code 1860 when the underlying title and actual possession of the immovable property are bona fide matters of civil dispute between the parties.
- Whether an acquittal under section 249-A of the Code of Criminal Procedure 1898 is justified when ownership and factual possession of the disputed property are subject to a pending civil suit?
- Can a charge of criminal trespass under section 447 of the Pakistan Penal Code 1860 be sustained when the entry is made by a party involved in a bona fide property dispute?
- Does a criminal court have the authority to interfere with an acquittal order in property disputes involving complex questions of title and possession?
- Section 417(2-A), Code of Criminal Procedure 1898
- Section 249-A, Code of Criminal Procedure 1898
- Section 447, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
JUDGMENT ABDUL QADIR MENGAL, J. This Criminal Acquittal Appeal under section 417(2-A), Cr.P.C. Is directed against the order dated 2-7-2011, passed by the learned Judicial Magistrate, Kharan, whereby the application under section 249-A, Cr.P.C. Filed by the respondents Nos.1 to 3 was allowed and they were acquitted of the charge.
2. The facts, as have been narrated in the F.I.R. No.27 of 2011, registered at Police Station City, Kharan reveal that one Haji Sanaullah, had purchased a piece of land in Rs.80,000 at Mouza Haro, Khewat No.180, Khatooni No.188 from one Haji Khuda-e-Nazar, who had purchased the same from one Mst.
MalIas and transferred it to his name. It was 25-3-2011 at about 4-00 p.m. When complainant got information through Shah Muhammad son of Rahimullah that Mst. Mallas were of Khalique Dad along with her husband and two sons namely Muhammad Aslam and Amanullah through a tractor working over the land. As complainant was claiming himself owner of the property and the respondents through trespass have committed an offence falling under sections 447 and 147 P.P.C., therefore, he lodged the report for action against the respondents/accused.
3. After registration of the F.I.R., the Investigating Officer arrested the accused and produced them before the Judicial Magistrate, Kharan. The charge was read over to accused, and then statement of P.W.1 Haji Sanaullah complainant was recorded. Whereafter an application under section 249-A, Cr.P.C. Was moved, same was allowed through impugned order and the respondents/accused were acquitted of the charge.
4. Mr. Muhammad Arshad Aziz, learned counsel for the appellant mainly contended that the Judicial Magistrate, through a haphazard and hasty order, acquitted the respondents/ accused, without considering the merits or the evidence of the case. Again learned counsel stated that a civil suit is pending over the property, and Judicial Magistrate did not consider the possession of the property or purchased documents, and passed the impugned order, contrary to the facts and law.
5. On our hearing the learned counsel and perusing the record, we are of the view that ownership and possession of the property still is in dispute, between the parties. While Admittedly the disputed land originally belonged to the respondents/ accused, and it is not yet confirmed that Khuda-e- Nazar had purchased the property, Khewat No.180, Khatooni No.188 through a valid transaction and then transferred the same to the complainant or otherwise. Prima facie a symbolic possession, given to the appellant/complainant and the factual or actual possession of the property is still seems not clear. As the same is evident from the statement of the complainant himself that a suit over the ownership of the disputed property or Khatooni No.188 or Khewat No.180 pending before the Civil Judge, hence, in view of the above, the acquittal 'order of learned Judicial Magistrate, Kharan under section 249-A, Cr.P.C., deserves no interference. Because in such circumstances entrance of legally entitled person could not hold him responsible for his role or any case made out, falling under section 447, P.P.C. In this respect benefit has been taken from AIR 1968 (SC) 702.
With the above, this appeal has no force and is dismissed in limine..