P L D 1960 (W (PLP)

The learned trial Magistrate relying on A I R 1941 Pat. 492, held that the tharra in dispute could not be regarded as a mosque and acquitted the respondent of the charge under section 295, P. P. C. Noor Muhammad has preferred this petition mainly on the ground that the view taken by the trial Court was wrong and that the tharra was a mosque. According to the evidence on the file, it was common ground that the tharra was being used as a mosque since 1954. The evacuee land, wherein the tharra was built, had been allotted to one Faqir Ullah who wanted to have the tharra removed and the dispute came up before the Deputy Rehabilitation Commissioner. He, by an order dated 27th of April, 1954 directed that as a mosque had actually been built, so the minimum area of land required by the mosque be taken from Faqir Ullah and be allotted in the name of the Shia Anjuman. Subsequently, an area measuring one kanal, seven marlas was shown as ghair mumkin masjid in the jamabandi for 1956‑57 and Faqir Ullah was ousted from so much of the area. In view of the above facts, the tharra could legitimately be said to be a mosque and the observations in A I R 1941 Pat. 492, do not appear to be applicable to the facts of the present case. The question for determination is legal one and the view taken by the trial Court is obviously wrong if not perverse.

2. Though, ordinarily, a revision petition against an order of acquittal is not entertained, but in view of the importance of the question involved in the case and the failure of justice to which the erroneous view of the trial Court has led, I hereby forward the records of this case to the High Court, under section 438, Cr. P. C with the recommendation that the case may be remanded for retrial. Muhammad All Zaidi for Petitioner. Barkat Ali Salimi for Respondent. Maulvi Mushtaq Hussain A. A. G. for the State. Dates of hearing : 8th February and 21st March 1960. Lieutenant Colonel Faiz Ahmad, against whom a criminal case was started by Noor Muhammad, Secretary, Anjuman‑e-?Ittehad‑ul‑Momineen (Registered), Islamabad, Rawalpindi Can?tonment, under sections 295 and 427 of the Pakistan Penal Code, was acquitted by Mr. Ejaz Ahmad, Magistrate of the 1st Class with powers under section 30 of the Code of Criminal Procedure at Rawalpindi. No appeal was presented by the Provincial Government, but Noor Muhammad who had set the law in motion presented an application to the Sessions Judge, Rawalpindi, with a view to having the case reported to this Court so that the order of acquittal be set aside. This application of Noor Muhammad was dealt with by Mr. Slier Muhammad Sial, Additional Sessions Judge, Rawalpindi, who, by his order dated the 31st of August 1959, recommended that the acquittal of Lt.‑Col. Faiz Ahmad under section 295 of the Pakistan Penal Code should be set aside and a retrial ordered.

2. Some of the material facts may be stated here. Noor Muhammad petitioner made a report at the Police Station Lalkurti, Rawalpindi, on the 17th of November 1957 that Lt‑Col. Faiz Ahmad, the respondent, had demolished a mosque and had, there?fore, been guilty of an offence under section 295 of the Pakistan Penal Code. After investigation, the police sent up the case to Court with a report that offences under sections 295 and 427 of the Pakistan Penal Code appeared to have been committed by the respondent. The allegation of Noor Muhammad was that part of a mosque had been set up by him with the subscriptions of Shia community and this mosque was demolished by the respondent who included the site of the mosque and the construction in his own compound. The Anjuman‑e‑lttehad‑ul‑Momineen, the Secretary, of which body Noor Muhammad petitioner, is, had bought Khasra No. 494 for constructing a mosque, but by mistake the mosque was built not in Khasra No. 494 but in Khasra No. 1270/492. The piece of land bearing Khasra No. 1270/492 was evacuee property which was in possession of one Faqir Ullah as an allottee from the Rehabilitation Department and he applied for demarcation of the boundaries of the property sold to the Anjuman and the property which was in his possession. The demarcation proceedings showed that the building did not stand on the piece of land which had been sold to the Anjuman, but on that piece of land which had been given by the Rehabilitation Department to Faqir Ullah as an allottee. The Anjuman, who had evidently under a mistaken belief that the land they were building on had been sold to them, applied to the Rehabilitation authorities for permission to continue the building and the Deputy Rehabilitation Commissioner, Rawalpindi, passed an order that as the mosque had been built the plot should be sold to the Anjuman so that the demolition of structure already put up should not be necessary. Upon this the Rehabilitation Commissioner of the Province passed an order that the evacuee property on which the structure had been put up should be acquired for the benefit of the Anjuman. No proceedings for acquisition had been taken when the present offence is alleged to have been committed by Lt.‑Col. Faiz Ahmad.

3. The learned trial Magistrate acquitted Lt.‑Col. Faiz Ahmad of the offence under section 295 of the Pakistan Penal Code on the ground that no mosque had been constructed and consequently the demolition by the respondent did not attract section 295 of the Pakistan Penal Code. The reason the learned trial Magistrate gave for this finding was that the land on which it was intended to build a mosque had not been dedicated for that purpose by its owner and therefore no mosque could be said to have been set up. In this connection the learned trial Magistrate relied on Bechan Jha and others v. Emperor (A I R 1941 Pat. 492), wherein it was held that the mere fact that a tenant sets up a mosque and begins using it as such with azan and akamat therein does not bring a mosque into existence, because the person to whom the land belonged had not dedicated it for the purposes of a mosque.

4. The learned counsel for the petitioner contended that the facts of the present case are entirely different from those of the case reported in A I R 1941 Pat. 492, and even if that case were; to be held to have been correctly decided, the present case was not affected. That a mosque is a waqf was not and could not be disputed. Waqf means the dedication of property to God, and it is well settled that in order that there should be a creation of a lawful waqf the owner of the property should dedicate it in the name of God. Mr. Zaidi, the learned counsel for the petitioner, urged that because the Rehabilitation Department had allowed the property on which the Anjuman had, by mistake, set up a construction to remain with the Anjuman it should be presumed that the owner had dedicated the property. I cannot accept this contention, because the Deputy Rehabilitation Com?missioner who had allowed the property to remain in the possession of the Anjuman was not the owner of the property and could not therefore dedicate the property to God. I am prepared to accept the contention of the learned counsel for the petitioner that the Anjuman acted in good faith when they set up a struc?ture which, on completion, they wanted to be used as a mosque. However, the position in law does not alter and though the good faith of a person setting up a building intended to be a mosque with regard to the ownership of the land may be a good defence to a criminal charge of trespass, yet it cannot do away with the necessity of a dedication by the owner of the property which is insisted upon by the Muslim law for the valid creation of a waqf. It is clear that the owner had not dedicated the property on which the Anjuman had put up a structure and, therefore, I am clear in my mind that even if the respondent be proved to have demolished the structure put up by the Anjuman he cannot be held to have demolished a mosque.

5. It was next contended by the learned counsel for the petitioner that, at any rate, the place demolished was one which bad been used by the Shias as a place of worship and, therefore, section 295 of the Pakistan Penal Code being attracted the acquittal of the respondent of that offence was unjustified. It is not necessary for the present case to determine whether or not a place which has not been properly dedicated can attain the sanctity .of a place of worship by reason of the fact that it isle used as such a place, because I am of the view that the evidence with regard to prayers having been said on this place is not satisfactory. Noor Muhammad petitioner, who appeared as the first prosecution witness at the trial, no doubt said that all the five prayers were said on this place every day and the place had been used for Eid prayers for five years, but the other witnesses did not support this assertion of Noor Muhammad in its entirety. I am not satisfied that regular prayers had been held at the place under consideration for any appreciable length of time and hold that the case did not fall under section 295 of the Pakistan Penal Code.

6. The learned counsel for the petitioner urged that, at any rate, the act of the respondent made him punishable under section 447 of the Pakistan Penal Code and he should have been convicted of that offence. Whether or not an offence under section 447 of the Pakistan Penal Code was made out against the respondent depends on the question whether or not the Anjuman was in possession of the land in dispute and the respondent had trespassed on the land: If these two facts are established and the respondent cannot show that he is for some reason to be held not guilty an offence under section 447 of the Pakistan Penal Code may be held to have been established against the respondent. The learned trial Magistrate did not look at the case from that angle and in fact confined his attention to section 295 of the Pakistan Penal Code, perhaps because he believed that if the petitioner had not succeeded in establishing the offence under section 295 of the Pakistan Penal Code the respondent could not be convicted of any other offence though it may be disclosed by the evidence. If this was the belief of the learned trial Magistrate it is manifest that he was not correct.

7. As I have already mentioned, the Provincial. Government has ‑not challenged the acquittal of the respondent and all that can be done, if the order of acquittal suffers from some defect, is that a retrial can be ordered. Ordinarily a retrial should not be ordered if the entire evidence of the prosecution had been taken, as was done in the present case, because an order of retrial in those circumstances cannot but prejudice the accused person, the verdict given in whose favour on merits has been found by the High Court to be wrong. In the present case an order of retrial cannot prejudice the case of the respondent, because the questions that will require consideration have not been considered by the Magistrate at all. I find that though the case against the respondent was both under sections 295 and 427 of the Pakistan Penal Code, the learned trial Magistrate has not said anything in his order dated the 27th June 1959 with regard to the offence under section 427 of the Pakistan Penal Code. In the circumstances of the case the omission of the learned trial Magistrate to deal with the allegations regarding an offence under section 427 of the Pakistan Penal Code cannot be taken as an implied acquittal of the respondent of that offence. I am of the view that a retrial is necessary and order that it shall be held. The trial Court need not examine any further witnesses for the prosecution and will only consider whether or not an offence under section 447 of the Pakistan Penal Code was established as also whether or not demolition of the structure put up by the respondent had been done by the respondent either himself or through someone else and whether the fact that the structure was put up on a piece of land which did not belong to the Anjuman would make section 427 of the Pakistan Penal Code inapplicable, even if the demolition were held to be proved. If the learned Magistrate comes to the conclusion that there is a prima facie case under sections 427 and 447 of the Pakistan Penal Code against the respondent, the Magistrate will frame a charge against him for the offence or offences disclosed and proceed with the trial from that stage, but if he comes to the conclusion that there was no trespass or demolition by the respondent, an appro?priate order in his favour will be passed. I would add that the case should be disposed of at a very early date. K.E.A.???????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.