Mst. MUNIRA KHATOON vs ASHFAQUE ZAI and otherss

' FAZAL ILAHI KHAN, CJ--- This criminal appeal by Mst. Munira Khatoon is directed against the judgment and order of the learned judicial Magistrate IV, Karachi, dated 17-4-1999, whereby her complaint against the accused under sections 448/454/456/34, Pakistan Penal Code read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance: 1979 (hereinafter referred to the said Ordinance) was dismissed and the accused were acquitted of the charge under section 249-A, Criminal Procedure Code.

2. The case as set up by the complainant in her complaint is that on the night between 29th and 30th of October, 1992, respondents Nos.1 to 5 in furtherance of their common intention forcibly broke the boundary wall, trespassed into and occupied a portion of the school area known as Al- Hamra Primary School which was being run by the complainant since 1983. She further stated that a portion of the property in question was in occupation of different tenants from time to time under her deceased father Maulana Abdul Qudoos Behari. The area trespassed and occupied by the accused by force was stated to be measuring 171 square yards. The accused/respondents were also charged for having removed articles from the school premises valuing about Rs,30,000. The accused are very influential therefore, she after great efforts succeeded in registering the case against the accused vide F.I.R. No,243 of 1992, dated 4-11-1.992 at Police Station Aram Bagh, Karachi.

The police registered the case only under sections 447/ 427/34, Pakistan Penal Code instead of sections 448/454/456/34, Pakistan Penal Code read with section 14 of the said Ordinance. She made repeated requests to the prosecution agency for correction of the above but on its refusal she approached the Honourable High Court, Sindh through Civil Petition No,3085 of 1992 for the needful. The Honourable High Cdurt directed her to file a private complaint. Accordingly she filed the present complaint. After the compliance of the proVision of sections.200 and 202, Criminal Procedure Code the case was taken up for trial against the accused under the afore-mentioned sections of law and process issued to the accused/respondents.

3. It may be pointed out that at the instance of the above proceedings under section 145, Criminal Procedure Code were pending in the Criminal Court. Both these cases remained pending in the Court of Judicial Magistrate-IV, Karachi when on the application of the respondents the case was transferred to Judicial Magistrate, KarachiIIIrd, Karachi South who recorded the statements of the appellant and of one Mst. Sher Bano. On 24-7-1996 the case was fixed for recording further evidence and laved Akhtar P.W. Was present for recording his evidence when the accused/respondents moved an application under section 249-A, Criminal Procedure Code. It is worth-mentioning that respondents had filed Criminal Miscellaneous Application No,330 of 1996 before the Honourable High Court of Sindh for quashment of the proceedings under section 145, Criminal Procedure Code, pending in the Court, but the same had been dismissed on 23-2-1998.

The trial Court without recording further evidence kept the case pending till September, 1998 and thereafter transferred the case to Judicial Magistrate-IV, Karachi. The learned transferee Judge op receipt of the file without recording any evidence acquitted the accused/respondents under section 249-A, Criminal Procedure Code by order dated 17-4-1999, impugned in this appeal.

4. We have heard the learned counsel for both the parties and perused the record carefully.

' Admittedly both the proceedings, i,e, the proceeding under section 145, Criminal Procedure Code regarding the dispute over possession of the disputed property and the proceedings taken against the accused/respondents under sections 448/454/456/34, Pakistan Penal Code stated above had arisen in respect of the disputed property. The petition of the accused/respondents under section 561-A for quashment of the proceeding under section 145, Criminal Procedure Code was dismissed by the Honourable High Court apparently for the reason that the parties be given full opportunity to lead their evidence whereafter the trial Court had to give its decision on merits.

' The grievance of the appellant is that after re-transfer of the case to Judicial Magistrate-IV no opportunity was provided to lead her remaining evidence which in support of her case.

' On the other hand the learned counsel for the accused/ respondents argued that the dispute between the parties is of civil nature and that they had obtained a decree from the Civil Court in their favor in respect of the disputed property of which due notice was taken by the trial Court in acquitting the accused/respondents. However, no such decree appears to have been placed on file in respect of the property in question, which is claimed by the appellant part and parcel of the school and which was in her possession. Even the trial Court did not clarify the position. It was incumbent on the trial Court to have recorded full evidence of both the parties in the 'proceedings under section 145, Criminal Procedure Code to determine as to which of the parties was in possession of the specific property within two months next before the complaint and after such determination passed an order provided for under section 145, Criminal Procedure Code one way or the other. On determination of such evidence would depend the fate of the complaint/ criminal case under sections? 448/454 and 456/34, Pakistan Penal Code read with section 14 of the said Ordinance.

5. Accordingly this appeal is accepted. The judgment and order of the learned trial Court is set aside and the case is sent back to the trial Court for affording full opportunity to the appellant to lead her evidence and to give decision on merits within six months. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.