HAJI MUHAMMAD ISHAQ Versus THE STATE

1. This is an application for quashment of proceedings against the applicants under sections 452, 448, 147, 148, P.P.C. pending before the IIIrd Extra Joint Civil Judge and F.C.M. Hyderabad.

2. That the brief facts giving rise to the present applicant are that on 19‑3‑1981 Haji Muhammad Ishaq, the previous President of the Anjuman filed a report at P.S. Market Hyderabad under sections 452, 148, 147, 448, P.P.C. inter alia alleging therein that he has got a house at Sero Ghat Road. There is an iron gate at the entrance of the house. There is a big hall on the ground floor and there are two storeys on the upper storey. He and his son Suleman, Haji Abdul Ghaffar and brother Sattar resided with their families. That the plot on which the house is situated was purchased by him in the name of Injuman‑e‑Kashfa‑i‑Dozan in the year 1977. The members of the Anjuman told him that they were paying Rs.90,000 by raising contribution and the balance of Rs.10,000 should be adjusted towards his donation. The members paid Rs.56,000 and after some time they declined to pay the balance and asked him to return the amount already received by him as the Anjuman was not interested in the plots. He returned the amount to each member and obtained receipt from them. He got such agreement executed on the basis of which the entries were made in the City Survey record in his name. He got the map prepared and raised construction where they reside. Some mischief‑monger of his community made an application to the A.D.M. for cancellation of the entries and the cancellation order was passed accordingly, but the complainant was directed to establish his ownership in the Civil Court. On the day of incident, he and his son Haji Suleman were sitting on the shop when at 7‑00 p.m. one Mustaqeem, his brother‑in‑law came there and informed him that many people have collected near his house and are forcibly taking the possession. He and his son went to the house and found the present applicants/ accused standing at the door armed with lathis. They abused him. They also placed tables, carpets etc. in the hall, and they asked the complainant party not to enter. They asked the accused party to leave the premises but they refused and said that the hall is the property of the Anjuman and that the complainant may do whatever he likes. Thereafter the complainant went and lodged his report. The police after investigation, challaned the present applicant before the learned trial Judge. This application is for quashment of the above proceedings.

3. I have heard Mr. Aftab Ahmed Akhund, learned counsel appearing for the applicant, Mr. Naimatullah Qureshi, learned counsel appearing for the complainant, Mr. Sarfraz Ahmad, learned A.A.‑G. appearing for the State.

4. It was contended by Mr. Aftab Ahmed Akhund learned counsel that persons who migrated from various states formed a society known as 'Anjuman‑e‑Kashf‑i‑Dozan in the year 1976. Ch. Muhammad Ishaq was nominated as President of the said Anjuman and affairs of the Society were being managed through elected members. The main aims and objects of the Anjuman were to impart religious education and to work for the welfare of the community. The members of the committee made contribution and donation for achievements of the above objects. Ch. Muhammad Ishaq was incharge of the funds of their Anjuman for fulfilment of the above objects of the Anjuman, two plots bearing Nos. A/2827/a, A/2827/A, A/2827/3/2 and A/2827/2 situated at Tilak Incline were purchased from Altaf Ali son of Abdul Samad and Iqbal son of Deedar Bux, by way of registered sale‑deed. Out of donation, and the contribution made by the members of the Anjuman. The plots were purchased through its President Ch. Muhammad Ishaq. It was specifically mentioned in the deeds that the above property was common property of the Anjuman. The certified copies of the two sale‑deed have been filed as Annexures "A" and "B". The mutation was also effected in the city survey record, and the extract has been produced as Annexure "C". That later on the complainant became dishonest, he got certain writings from some of the members and on the basis of that writings got the record mutated in his favour, and thereafter he gifted the said property in favour of his son. That the applicants moved an application before the A.D.M. Hyderabad, who cancelled the mutation and directed the complainant to establish his ownership before the Civil Court. It was further contended by Mr. Aftab Ahmed Akhund learned counsel for the applicant that there was no case made out for criminal trespass as the applicants had right in every inch of the said property. That the civil suits were pending between the parties, there was no intention to intimidate or annoy the complainant party. That it was at the most case of civil trespass. He has further contended that affidavit of Haji Suleman son of the complainant, a copy of which has been filed as Exh. "N" at page 137, belies the prosecution case. In support of his contention, the learned counsel has relied upon 1985 S C M R 257; P L D 1962 Kar. 330; 1986 P Cr. L J 2602 and P L D 1982 Kar. 149.

5. Mr. Naimatullah, learned counsel for the complainant has contended that the applicants did not move an application under section 249‑A before the trial Court, and therefore, the present application was not maintainable. He has further contended that it was a case of criminal trespass and, therefore, the proceedings were rightly taken against the applicants.

6. Mr. S. Sarfraz Ahmed, learned A.A.‑G. appearing for the State has contended that there was a bona fide dispute between the parties, and therefore, no criminal offence was committed by the applicants. That in view of 1985 S C M R 257, the present application is maintainable in law. Looking to the facts and circumstances of the case the proceedings against the applicants are liable to be quashed.

7. I have considered the contentions of the learned counsel appearing for the parties and have also gone through the documents produced alongwith the application and the case‑law cited at the Bar.

8. It is an admitted position that the plots in question were purchased in the name of Anjuman. That some of the members had executed an agreement in favour of the complainant but not all the members. That civil litigation is pending between the parties where they are yet to prove their respective rights. The criminal trespass is defined under section 441, P.P.C. which reads as under:‑‑

9. "Whoever enters into or upon property in 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."

10. ???????????

11. The bare reading of the above section will show that ingredient of criminal trespass is missing in the present case. In case of Abdul Rashid and another v. The State it was held by this Court that:‑‑

12. "Section 561‑A read with Penal Code sections 441 and 447‑ ?Quashment of proceeding‑‑ Ingredients of offence of criminal trespass not made out in F . I . R . or deposition of principal witness in case‑‑Held, no useful purpose would be served if proceedings allowed to continue and would amount to abuse of process of the Court."

13. The proceedings were, therefore, quashed.

14. In Abdul Ghani and 2 others v. The State P L D 1982 Kar. 149, it was held:

15. "561‑A, Cr.P.C. read with Penal Code S. 447‑‑Quashment of proceedings‑ ‑Criminal trespass offence of‑‑Taking of peaceful possession of immovable property without consent of person even its possession ‑‑Would not amount to criminal trespass."

16. The proceedings were quashed.

17. In case of Kazi Taj Muhammad v. The State and another PLD 1962 Kar. 330; it was held:

18. "Entry upon land, made under a bona fide claim of right, however, ill founded in law 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 insult intimidate, or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent."

19. In case of Badaruddin v. The State 1977 P Cr. L J 89, it was held:

20. "Possession of immovable property taken, in absence of owner‑‑A mere civil trespass‑‑Taking possession of property without consent of person in possession in a peaceful manner, held, does not amount to criminal trespass."

21. From the above discussion, of the facts as well as law, it is clear that no criminal offence was made out against the applicants and it was at the most a case of civil trespass and the F.I R. itself does not make out any case under section 448, Cr.P.C.

22. Before going to final conclusion, it will be necessary to consider the objection of Mr. Naimatullah, with regard to maintainability of this revision.

23. In case of Mian Munir Ahmed v. The State 195 C M R 257; it was held by their Lordships that the powers under section 249‑A and section 255‑K. Cr.P.C. of trial Court are co‑extensive with similar powers of the High Court under section 561‑A, Cr.P.C. and both can be resorted to. Proper course was to approach trial Court in the first instance but there is nothing to bar the High Court from entertaining in appropriate case an application under section 561‑A, Cr. P. C . directly.

24. From the above discussion, it is clear that the present application for quashment is maintainable in law, inasmuch as section C 249‑A, Cr.P.C. is enabling section which only empowers the trial Court to acquit the accused at any stage. after hearing the parties. But there is no bar to file quashment application before the High Court directly.

25. In view of the above discussion, I allow this application and quash the above proceedings pending against the applicants before the trial Court.

26. M.Y.H./M‑360/K ??????????????????????????????????????????????????????????????????????????????? Proceedings quashed