Kh. WAQAR AHMAD vs THE STATE
This is a post-arrest bail application filed by the petitioner, who was accused of breaking into a factory, taking illegal possession, and confining security guards after the property had been placed under the control of a court-appointed receiver. The core legal questions were whether the offences charged were made out, specifically regarding lurking house trespass, and whether the petitioner was entitled to bail given the circumstances of the alleged dispossession. The Court held that while the ingredients for lurking house trespass under section 453 of the Pakistan Penal Code 1860 were not met due to a lack of concealment, the facts clearly attracted section 452 of the Pakistan Penal Code 1860, which is punishable by seven years' rigorous imprisonment. Furthermore, the Court found that the act of confining guards and threatening them fell under section 506(2) of the Pakistan Penal Code 1860, which is non-bailable. The Court established that a court-appointed receiver has the standing to lodge an F.I.R. regarding dispossession, and the petitioner's blatant disregard for a court order justified the denial of bail.
- Does a court-appointed receiver have the legal standing to lodge an F.I.R. regarding the dispossession of property under their control?
- Can an accused be denied bail when the facts of the case attract non-bailable sections of the Pakistan Penal Code 1860, even if the specific section initially charged is not fully applicable?
- Does the lack of concealment of an act preclude a charge of lurking house trespass under section 453 of the Pakistan Penal Code 1860?
- Section 342, Pakistan Penal Code 1860
- Section 506, Pakistan Penal Code 1860
- Section 453, Pakistan Penal Code 1860
- Section 448, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
ORDER
' This is a bail after arrest application in case F.I.R. No.340 of 2003, dated 19-6-2003, under sections 342/506/453/448/147/148, P.P.C. Of Police Station Satelite Town, Gujranwala.
2. According to the prosecution case set up in the F.I.R. Shabbir Ahmad Farooq, Advocate, complainant was appointed as a receiver by the Banking Court, Gujranwala to take over mortgaged factory belonging to the petitioner and also to prepare its inventory. Consequently, the complainant with help of the police, took over the petitioner's factory And prepared its inventory of various stock and then locked its outer gate and posted guards on the same and thereafter he submitted his report to that effect in the Banking. Court, Gujranwala.
3. On 29-5-2003, the petitioner alongwith his other companion being armed with hammers broke opened the lock of the factory and took over its possession and also hold the guards posted at the factory in their illegal confinement. Upon receipt of the information, the complainant with the help of the police rescued the guards and thereafter matter was reported to the police and consequently, this case was registered against the petitioner and others.
4. It is contended on behalf of the petitioner that from the plain reading of the F.I.R., offence under section 453, P.P.C. Which is lurking house trespass is not made out because the alleged offence took place in the broad daylight and there was no effort on the part of any one to conceal the occurrence and that all other offences charged against the petitioner are bailable. It is further contended that the petitioner is a respectable person and is president of the local Merchant Association and as well as small factory owner and his further detention is not likely to advance the prosecution case and is in jail since 4-9-2003. It is also contended that this case has not been registered on the directions of the Court and the Banking Court had not ordered the petitioner to restore the possession.
5. The complainant, who is an Advocate, had undertaken the entire proceedings and had taken over possession of the petitioner's factory in pursuance of orders of the Banking Court and had locked the outer gate of the factory and posted guards over there. The petitioner alongwith others being armed with hammer had broken the said locks and entered the factory and took over the same and are still in its possession. It is true that from the contents of the F.I.R., the ingredients of the lurking house trespass are not made out as the petitioner and his companions did not take any measure to conceal their offence but., from their act, offence under section 452, P.P.C. Is attracted which is punishable with 7 years' R.I. The petitioner and his companions being armed with hammers had also held security guards Iftikhar Ahmad and Ahmad Khan in confinement and had also threatened them with dire consequence which alludes personal harm and injury to them and this offence falls within the purview of section 506 Part(2) which is also non-bailable.
6. The contention of the learned counsel for the petitioner that the case had not been got registered by the Banking Court and no order to restore its possession to the complainant has been passed by the said Court has no relevance because the complainant had been appointed as Receiver of the Factory by the order of Banking Court and he had taken over possession of the factory in pursuance of the said order and he had got registered this case in the capacity of Receiver. As the complainant had been dispossessed from the factory, therefore, he could lodge the F.I.R. The petitioner after forcibly taking over possession of the factory is continuing in its illegal possession uptil-now. The Banking Court has not passed any order permitting him to retain possession of the factory in derogation of its earlier order.
7. The petitioner considering himself to be President of Merchant Association undertook to flout the action taken under the order of the Court with impunity and is still continuing with the same. The petitioner is not entitled to the concession of bail. This petition is dismissed.
(Ch. Ijaz Ahmad, J)