P L D 2012 Islamabad 58 (PLP)

MUHAMMAD AZIM KHAN AFRIDI, J.

Mr. Khurram Irshad Khan, Manager (Under Writing) National Insurance Company, NIC Building 63-Jinnah Avenue, 'Blue Area Islamabad, hereinafter referred to as petitioner has instituted the present petition under section 561-A, Cr.P.C. against order dated 25-11-2011, passed by learned Additional Sessions Judge, (Justice of Peace) Islamabad, whereby application of petitioner under section 22-A(6), Cr.P.C. was dismissed.

2. Crux of the petition is that Malik Tahir Saleem Awan, ex-tenant hereinafter referred to as respondent No.2 along with others including a police inspector arrived in three police vehicles and intruded into the building of NIC located at 63-Jinnah Avenue, Blue Area, Islamabad. That they intend to go upstairs but upon being challenged by the security guard, the respondent No.2 informed him that he had a Court order and intend to collect his belongings from cafeteria. That respondent No.2 and others withdrew from stance when the security guard offered resistance. That the incident was reported to S.H.O. respondent No.1, but the same turned a futile exercise, hence petition under section 22-A(6), Cr.P.C. was submitted for registration of a criminal case under sections 448/451 P.P.C. r/w 379, P.P.C. That the petition was dismissed vide impugned order dated 25-11-2011 and hence the instant petition.

3. Learned counsel for the petitioner has argued that the respondent No.2 was tenant of NIC for one year and that the term of agreement expired on 23-5-2011. That the respondent No.2, then' instituted a civil suit after two months. That he was neither authorized nor justified to enter into the premises of the petitioner and, by doing so, committed criminal trespass punishable under sections 441/448, P.P.C. In support of his arguments, he placed reliance on Muhammad Bashir's case reported as PLD 2007 Supreme Court 539.

4. On the other hand, learned Standing Counsel for respondent No.1 argued that the occurrence is of civil nature and the same does not constitute any offence and as such the respondent No.1 was not obliged to register a criminal case, against respondent No.2.

5. Arguments of learned counsel for the parties heard and record perused.

6. According to the written report of the security guard, respondent No.2 alleged ex-tenant of canteen brought certain persons in two vehicles of police and the respondent No.2 and a Police Inspector also accompanied them in a third vehicle. That when the respondent No.2 along with Police Inspector started entering the premises through stairs, having a file in his hand, the security guard intercepted them and enquired as to why they were going in. In response thereto, respondent No.2 informed him that they were to collect their belongings from canteen on the strength of the orders of the Court and that the Inspector was accompanying him in pursuance of the orders of the Court. That the security guard dissuade them from entering NIC and asked them to come on Monday in office hours for meetings with the concerned officer. That the respondent No.2, after consulting the Inspector, agreed to come' to the office on Monday and went away.

7. Sections 448 and 451 P.P.C. prescribe punishment for committing house trespass, while section 441, P.P.C. lays down the parameters essential for constitution of criminal trespass. According to section 441, P.P.C., whoever enters into or upon property in the possession of another with intend 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 intend to commit an offence, is said to commit "criminal trespass".

8. Perusal of report of the security guard would suggest that respondent No.2 along with police inspector has allegedly entered into the premises of NIC, but as evident from the narrations in the said report, they had offered no insult or annoyance to any person nor committed any offence. Similarly there are no narrations that the respondent No.2 intimidated the security guard or unlawful remained there with any such intention. According to the narrations, they left the premises when so asked by the security guard meaning thereby that no offence of criminal trespass is emanating from the written report of the security guard.

9. In Muhammad Bashir's case (PLD 2007 Supreme Court 539) it was laid down that no authority was vested with an Officer Incharge of the Police Station or with any one else to refuse to record an F.I.R. where the information conveyed, would disclose the commission of a cognizable offence. That the police officer deputed for investigation would be obliged to investigate the case and would have no authority to refuse registration of the case or investigation by terming the allegations as false. Touch-stone embodied in the reported case nullity the authority of a police officer by prejudging an episode and terming the same as false without investigation inspite of the fact that narrations made constitute a cognizable offence. The facts of the case in hand do not unfold the commission of a cognizable offence as such refusal of the Police Officer to register a criminal case or dismissing the petition under section 22-A(6), Cr.P.C. by the court is in harmony and conformity with the law and case-law referred to and relied upon by the learned counsel for the petitioner.

10. In view of the above, there is no merit in the instant petition, the same is, therefore, dismissed. M.W.A./49/Isl Petition dismissed.