1986 P Cr (PLP)

The case of the applicant in brief is, that one Muhammad Nasib, complainant, filed a F.I.R. No. 120/1983 with C.I.A. Police, Karachi, on 21‑6‑1983 to the effect that he had rented out a part of a bungalow to the applicant in 1982. It is further alleged therein, that during his absence, the applicant had trespassed, and taken the possession of the other portion of the building, and also had taken away the furnitures and valuable documents and further, that he got the bungalow transferred in his name under forged and fabricated documents. After usual investigation the C.I.A. submitted challan in the Court of Vth Additional City Magistrate (West), Karachi, under sections 448, 451 and 341, P.P.C. The applicant moved an application under section 249‑A, Cr.P.C. in the Court of learned Magistrate, who rejected the application vide his order, dated 30‑3‑1985. Being aggrieved by the said order the applicant has moved this petition, praying for quashment of the proceedings in Criminal Case No. 84 of 1984.

2. The main argument of Mr. Ghulam Ali Khokhar, learned counsel for the applicant is, that as the applicant was inducted as tenant by the complainant himself, therefore, trespass, if any, cannot be considered as criminal trespass, but at the most it will be a civil trespass only, for which no criminal case can lie. He further argues, that the tenant has right to bar the entry of the landlord without his permission in the house. He further argues, that the complainant has already filed the rent application for ejectment of the applicant, which is pending before the Rent Controller. He further contends, that allegation of the forgery has been disbelieved by the Investigating Officer, who has not submitted challan under section 468, Cr.P.C. and further, that even the learned Magistrate has not framed the charge under section 468, P.P.C. but has framed charge under sections 448, 451 and 341, P.P.C. only.

3. The certified copy of F.I.R. has been produced which clearly shows, that when the complainant was going to Islamabad, he handed over the portion of the bungalow, allegedly in his possession, to the applicant for looking after it. Thus there is no doubt, that the applicant came into possession of the entire bungalow with the permission of the complainant, and, therefore, his possession cannot be considered as criminal. Mr. Ghulam Ali Khokhar relied on the statement of the complainant before the learned Magistrate. The certified copy of the same is produced as Annexure "C". In cross‑examination the complainant has admitted, that in 1983 he also filed a direct complaint against the applicant, but the same was dismissed by the Magistrate after inquiry Was conducted by the police on the directions of the learned Magistrate.

4. The factual position that emerges is, that the applicant is admittedly tenant of the entire bungalow in question or at least major portion of it viz. five rooms out of six rooms. It is also admitted, that in 1982, when the complainant left for Islamabad, he entrusted to the applicant the servant quarters and remaining portion of the bungalow viz. the room allegedly in possession of the complainant. The direct complaint filed by the respondent against the applicant was dismissed by the learned Magistrate. Admittedly, a rent case with regard to the ejectment of the applicant is pending before the Rent Controller. The question whether any agreement for the sale or sale‑deed of the bungalow was executed in favour of the applicant is a question, which is to be decided by the Civil Court. Apparently, none of the parties has approached the Civil Court for the adjudication of this dispute. Admittedly, no criminal force was used by the applicant while allegedly occupying the portion of bungalow in possession of the complainant. The learned counsel for the applicant relied upon P L D 1982 Kar. 149, wherein it is held, that "taking of peaceful possession of immovable property without consent of a person even in possession, would not amount to criminal trespass but would only be civil trespass, specially when the land in dispute was subject‑matter of civil litigation." In 1983 P Cr. L J 1912, it is held as under:‑ "Word 'intimidate', held, must be underlined in its ordinary sense to overawe, to put in fear by show of force a threat of violence and it may include use of force unaccompanied by threat‑‑Section 441 is designed to protect possession and question whom title to land or property vests is alien to offence under section 441‑‑Even owner of property cannot be allowed to take possession by force from person who as tenant is in possession of it." In 1983 P Cr. L J 42, it is held as under:‑ "It is not a mere civil trespass by way of taking possession of property without the consent of the person in possession which would amount to criminal trespass it is a condition precedent to constitute the offence of criminal trespass that it should be with intent to commit an offence or to intimidate, insult or to annoy person in possession of such property. Looking to the wording, mere constructive possession would not be sufficient as a person in absentia cannot be said to be intimidated, insulted or annoyed and such person had to be named by the prosecution in order to sustain the charge of criminal trespass." Sections 448 and

451. P.P.C. respectively punish house trespass and house trespass in order to commit offence punisable with imprisonment punishment under both the sections can be awarded only if the trespass s criminal trespass and not civil trespass.

5. From the facts and law as discussed above the alleged trespass by the applicant does not appear to be criminal trespass, but at the most it may be a civil trespass for which the parties may have recourse to civil Court. It is admitted, that rent application for ejectment is already pending. As held in 1983 P Cr. L J 1912, even the owner of the property cannot be allowed to take possession by force from per‑n, who as a tenant is in possession of it. Therefore, even charge under section 341, P.P.C. is not sustainable. To allow such proceedings to continue will result in undue harrasment to the applicant and would clearly amount to the abuse of process of Court. Mr. Ghulam Ali Agha, learned Advocate for the State, also concedes, that the proceedings be quashed. The proceedings against the applicant are quashed under section 561‑A, Cr.P.C. and application is allowed accordingly. S.A. Application accepted.