1988 P Cr (PLP)

Mr. Naimatullah, learned counsel for the complainant has contended that the applicants did not move an application under section 249‑A before the trial Court, and therefore, the present application was not maintainable. He has further contended that it was a case of criminal trespass and, therefore, the proceedings were rightly taken against the applicants. Mr. S. Sarfraz Ahmed, learned A.A.‑G. appearing for the State has contended that there was a bona fide dispute between the parties, and therefore, no criminal offence was committed by the applicants. That in view of 1985 S C M R 257, the present application is maintainable in law. Looking to the facts and circumstances of the case the proceedings against the applicants are liable to be quashed. I have considered the contentions of the learned counsel appearing for the parties and have also gone through the documents produced alongwith the application and the case‑law cited at the Bar. It is an admitted position that the plots in question were purchased in the name of Anjuman. That some of the members had executed an agreement in favour of the complainant but not all the members. That civil litigation is pending between the parties where they are yet to prove their respective rights. The criminal trespass is defined under section 441, P.P.C. which reads as under:‑‑ "Whoever enters into or upon property in possession of another with intent 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 intent to commit an offence." ??????????? The bare reading of the above section will show that ingredient of criminal trespass is missing in the present case. In case of Abdul Rashid and another v. The State it was held by this Court that:‑‑ "Section 561‑A read with Penal Code sections 441 and 447‑?Quashment of proceeding‑‑ Ingredients of offence of criminal trespass not made out in F . I . R . or deposition of principal witness in case‑‑Held, no useful purpose would be served if proceedings allowed to continue and would amount to abuse of process of the Court." The proceedings were, therefore, quashed. In Abdul Ghani and 2 others v. The State P L D 1982 Kar. 149, it was held: "561‑A, Cr.P.C. read with Penal Code S. 447‑‑Quashment of proceedings‑ ‑Criminal trespass offence of‑‑Taking of peaceful possession of immovable property without consent of person even its possession ‑‑Would not amount to criminal trespass." The proceedings were quashed. In case of Kazi Taj Muhammad v. The State and another PLD 1962 Kar. 330; it was held: "Entry upon land, made under a bona fide claim of right, however, ill founded in law does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or insult intimidate, or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent." In case of Badaruddin v. The State 1977 P Cr. L J 89, it was held: "Possession of immovable property taken, in absence of owner‑‑A mere civil trespass‑‑Taking possession of property without consent of person in possession in a peaceful manner, held, does not amount to criminal trespass." From the above discussion, of the facts as well as law, it is clear that no criminal offence was made out against the applicants and it was at the most a case of civil trespass and the F.I R. itself does not make out any case under section 448, Cr.P.C. Before going to final conclusion, it will be necessary to consider the objection of Mr. Naimatullah, with regard to maintainability of this revision. In case of Mian Munir Ahmed v. The State 195 C M R 257; it was held by their Lordships that the powers under section 249‑A and section 255‑K. Cr.P.C. of trial Court are co‑extensive with similar powers of the High Court under section 561‑A, Cr.P.C. and both can be resorted to. Proper course was to approach trial Court in the first instance but there is nothing to bar the High Court from entertaining in appropriate case an application under section 561‑A, Cr. P. C . directly. From the above discussion, it is clear that the present application for quashment is maintainable in law, inasmuch as section C 249‑A, Cr.P.C. is enabling section which only empowers the trial Court to acquit the accused at any stage. after hearing the parties. But there is no bar to file quashment application before the High Court directly. In view of the above discussion, I allow this application and quash the above proceedings pending against the applicants before the trial Court. M.Y.H./M‑360/K??????????????????????????????????????????????????????????????????????????????? Proceedings quashed