Khan Muhammad Versus Judicial Magistrate (Ilaqa), Pindi Gheb

Tariq Mahmood Bajwa, J .--- By means of instant petition, filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner has made following prayer:-

"The petition may kindly be accepted and impugned order dated 27.02.2025 passed by Learned Judicial Magistrate 1st Class Pindi Gheb, may kindly be set aside, in the supreme interest of justice"

2. Dispensing with needless details, the facts in brevity, necessary to attend the questions raised in the instant constitutional petition are that petitioner lodged a criminal case bearing FIR No.140/25 dated 25.02.2025, under section 379 P.P.C, at Police Station Pindi Gheb, District Attock, against the respondents Nos.2 to 4 regarding theft of trees from the land of petitioner situated within the revenue circle of Maira Sharif. After registration of FIR, local police arrested the nominated accused persons and produced them before learned area Magistrate with prayer for grant of physical remand but the request of local police was not acceded to and learned Magistrate was pleased to discharge the accused by passing following order: -

"Perusal of record reveals that accused persons are charged under section 379 P.P.C which is though non-bailable in nature, but by plain reading of the FIR, it is transpired that accused are allegated for the offence of theft of standing trees from Khewat No.217. At this stage, counsel for accused has filed record of rights of the suit property showing that accused persons are co-owners in the suit property. As per settled principle of law, co-owner is owner of each and every inch of joint property. The stance of the complainant that they were cutting trees from his property in the light of record of rights produced by the accused persons is not made out. As the accused persons admittedly are co-owners in the suit property and theft against the owner being a co-owner in the suit property is not made out. Hence, the charge has become groundless. Therefore, accused persons are discharge forthwith if not required in any other case."

Feeling dismayed, the petitioner has filed instant petition.

3. Learned counsel for the petitioner has inter alia contended that learned duty Magistrate was not competent to discharge the accused. The accused were discharged while declining the request of police for physical remand. Initially, the rapat of occurrence was incorporated and revenue officials after spot inspection, submitted report, confirmed the cutting/theft of trees from khasra numbers 1266 to 1270 and 1440, possessed and owned by the petitioner and endorsed the stance of complainant that the said number khasra were/are under the exclusive possession of complainant party. The accused were facing allegation of theft and the request for physical remand was duly forwarded by the learned Prosecutor concerned. Without providing a fair opportunity of hearing to the complainant/petitioner, the order of the discharge of the accused was passed, that too by duty Magistrate, is against the spirit of law. The recovery was yet to be effected from the accused and sufficient incriminating material was there to connect the accused with alleged offence. Only one co-accused was co-owner for small unit of property whereas the complainant party owned a reasonable unit of property and is in possession from the decades. In order to augment his arguments, learned counsel for the petitioner referred to report of revenue staff and khasra girdawri.

4. Conversely, learned Assistant Advocate General assisted by learned counsel for the respondents while repelling the said contentions and defending the impugned order, submits that learned duty Magistrate was quite competent to discharge the accused. The accused were co-sharer/co-owner and they will be treated in possession of each and every inch of joint property.

5. Hearkened and record perused.

6. Before answering the real question involved in the instant writ petition, it would be apt to have glance upon section 378 P.P.C which reads as under:-

378. Theft. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking is said to commit theft.

(Underline has been supplied for emphasis)

In the said section, illustrations were also introduced, most relevant illustration (a) which reads as under: -

"(a) A cuts down a tree on Z's ground with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft."

7. Possession is central ingredient to impose/attract the offence of theft under the next section i.e. 379 P.P.C. The learned duty Magistrate was swayed to pass the impugned order of discharge simply and solely observing that complainant and the accused are co-sharer referring the notion "As per settled principle of law, co-owner is owner of each and every inch of joint property." without identifying the real question, who was in physical possession of the property from where the trees were cut/stolen. The word of possession used in section 378 requires actual/physical possession rather constructive possession and in presence of peaceful, un-interrupted, long physical possession, violent/criminal act must be discouraged. In a case where the allegation of identical nature was ascribed to the accused, they approached this Court for quashing of that particular criminal case i.e. theft of tress and the learned single Bench of this Court in case law reported as "Zafar Iqbal Malik and another v. Station House Officer, Police Station Lilla and 3 others" (2010 MLD 738) was pleased to dismiss the same while observing as under: -

"As per Revenue Record available on the file, the petitioners are co-sharers in the disputed land but in 'khana kasht' their names are not mentioned. Prima facie, complainant alleged that the petitioners and other co-accused while armed with deadly weapons, cut the trees from the land possessed by the complainant party. If such allegations are accepted as correct at their face value, then the same prima facie disclose commission of some cognizable offences even other than the offences mentioned in the FIR."

8. The matter was to be investigated that who was in physical possession on the disputed portion of land. A co-sharer may not be in physical possession of that joint property. If he forcibly or dishonestly removes trees from any part of the joint property, on which he has no possession, without the consent of other co-sharers, actually in physical possession and with criminal intent, he may be liable under Section 379 P.P.C. Thus, it is a misconception of law to assume that co-ownership precludes criminal liability. What matters is the presence of dishonest intention (mens rea) and unauthorized removal of trees, both of which are alleged in the FIR. A discharge order at the physical remand stage without full investigation is pre-mature. The Magistrate should not evaluate merits or civil rights of ownership or stranger question of constructive possession during early criminal proceedings. The learned duty Magistrate proceeded to discharge the accused merely on the assumption that being co-sharers, no offence under Section 379 P.P.C could be made out. This approach is legally flawed and contrary to the settled principles of law. The existence of civil rights or co-ownership is not a valid ground for stifling a criminal investigation or prosecution. The criminal court must allow investigation to take its course and must not prematurely terminate proceedings of investigation at the remand stage. Investigation should be allowed to continue unless there is clear evidence of mala fide. In the impugned order, not even a single word has been mentioned about the exhaustive report of revenue department, at the cost of repetition, on the question of un-interrupted long physical possession of the warring party.

9. Before signing it off, the matter was at the stage of investigation, the observations are restricted only to the extent, in case of physical possession of the complainant, if the trees were stolen, offence under section 379 is prima facie attracted, however, the nominated accused committed it or not is a question of investigation/prosecution.

10. For the reasons mentioned above, instant petition stands accepted. Resultantly, impugned order dated 27.02.2025 is hereby set aside. The matter is remanded back to the learned Judicial Magistrate for proceeding further strictly in accordance with law. The Investigating Officer is directed to proceed with the investigation independently and expeditiously from that stage.

JK/K-11/L Petition allowed.