MUHAMMAD RAMZAN Versus THE STATE
Briefly stated the facts are that Shaukat Masood complainant/respondent No-3 alongwith his brothers purchased land measuring 5 Kanals, 9 Marlas out of Khasra No.196 vide sale-deed, dated 18-10-1990. Muhammad Ramzan petitioner and Muhammad Khan owned a house towards north of Khasra No.196. They are alleged to have encroached upon land measuring one Marla and 3 Marlas out of said land bearing Khasra No. 196. The complainant objected upon their encroachment to which they asked the complainant to get the land demarcated and if some encroachment is found, they shall vacate the land. The complainant then moved an application for demarcation which proved his contention regarding encroachment referred above. The complainant then approached them in presence of Ghulam Ali son of Saleh Muhammad and Azhar Abbas son, of Ghulam Ali on 26-11-1998 at 5-00 p.m. and requested them to remove their encroachment. This caused annoyance to them and Muhammad Khan went to his house and returned with a .12 bore gun and threatened him to leave the place, otherwise he would be murdered. Muhammad Ramzan and Muhammad Rehman armed with hatchets and Sota also arrived there. The complainant then left the place and consequently, lodged F.I.R. No.256, dated 2-12-1998 at Police Station Pind Dadan Khan, District Jhelum. Consequently, case under section 447/34, P.P.C., was registered against the accused Muhammad Ramzan, Muhammad Rehman and Muhammad Khan. Later on, offence under section 506, P.P.C., was also added.
2. After usual investigation, the case has been sent up to the Court for trial.
3. The petitioner and; others moved an application under section 249-A, Cr.P.C., which was dismissed by the Judicial Magistrate vide order, dated, 19-6-1999. Hence the instant petition for the quashment of proceedings.
4. Arguments have been heard and record perused.
5. Main contention of learned counsel for the accused/petitioner is that he along with his co-accused has been sent to face trial under section 447/34, read with section 506, P.P.C., on the allegation that he as well as his co-accused have encroached upon land out of Khasra No. 196 belonging to the complainant. He contended that occurrence is alleged to have taken place in the month of January, 1998 whereas F.I.R., has been lodged on 2-12-1998, that there is no explanation of this inordinate delay of about one year in lodging the F.I. R. He further contended that even if the prosecution case is accepted as its face value, even then ingredients of offence under section 447, P.P.C., are not established as criminal intention on the part of the petitioner is missing. He argued that neither it is evident from the contents of F.I.R., nor from the statements of Ghulam Ali and Azhar Abbas that the accused had entered the land with some criminal intention. He submitted t the case squarely falls within the ambit civil trespass and -criminal proceedings h, been resorted to pressurize them a continuance of these proceedings is a clas example of misuse of process of law a placed reliance upon Kazi Taj Muhammad The State and another (PLD 1962 (W.1 Karachi 330), Muhammad Anwar and other v. The State (1976 PCr.LJ 1325) and Shauk Ali v. The State (PLD 1987 Lahore 116):
6. Conversely, learned counsel for the complainant/respondent No.3 has vehement) opposed the instant petition. He submitted that as the challan has been submitted in Court and evidence has not been brought of record, so at this stage proceedings cannot b quashed. He further contended that the moment the accused/petitioner entered upon the complainant's land with intent dispossess him, the offence of criminal trespass stood proved on the part of this accused/petitioner and placed reliance upon Jane Alam v. The State (PLD 1965 SC 640; and Ibrahim and 3 others v. The State (1971 SCMR 25).
7. The only point which requires determination is, if on the basis of evidence collected by the prosecution, offence under section 447/34/506, P.P.C., is made out against the accused. Criminal trespass has been defined in section 441, P.P.C., which reads as follows:
" Criminal trespass .--Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit-criminal trespass."
In order to determine if the conduct of the petitioner falls within the purview of criminal trespass, a reference can be made to Sunnasamy Selvanayagam v. The King (61 Cr.LJ 173), where a person was being prosecuted for criminal trespass under the Penal Code of Ceylon. The provisions of the Ceylon Penal Code and that of the Pakistan Penal Code appear on a perusal of the observation of their lordships of the Privy Council to be the same. The- relevant observation runs as under:
"Entry upon land, made under a bona fide claim of right, however, ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent or at any rate constituted no more than a subsidiary intent."
8. It is evident from the facts stated above that the case is of civil nature and instead of resorting to civil proceedings, he resorted to, criminal proceedings. The authorities cited by learned counsel for the complainant/respondent do not come to his rescue as the said authorities pertain to the appeals and not to the quashment of proceedings pending in the Court.
9. The upshot of the above discussion is that the petition succeeds and the proceedings arising out of F.I.R. No. 256, dated 2-12-1998 under sections 447/34, and 506, P.P.C., registered at Police Station Pind Dadan Khan District Jhelum and pending in the Court of Judicial Magistrate Pind Dadan Khan are hereby quashed.
H.B.T./M-4/L
Proceedings quashed.