2000 PLP 793 (MLD)

The petitioner through this Constitutional petition seeks the quashment of F.I.R. No.273 of 1999, dated 20‑11‑1999 under section 379, P.P.C. registered at Police Station Abdul Hakim, District Khanewal.

2. Briefly stated the facts of the case are that a criminal case vide F.I.R. No.273 of 1999, dated 20‑11‑1999 under section 379, P.P.C. was registered on the statement of Allah Bakhsh/respondent No.2, at the Police Station Abdul Hakim, District Khanewal against the petitioner and seven unknown persons. It was alleged in the F.I.R. by the complainant that he was owner of 277 Kanals of agricultural land situated in Mauza Gobandgarh. According to F.I.R. itself the complainant has given his land for cultivation to Khadim Hussain/petitioner as tenant. The complainant has further stated that he got cultivated rice, cotton crops on the land. The petitioner after plucking the cotton and harvesting peddy crops has kept the same at his Dera for Batai. It was further alleged that on 20‑10‑1999 at about 4 p.m., the complainant went to his land and saw crop of cotton weighing 200 maund and crop of rice weighing 250 maund, in the packed in cotton bags, were missing and allegedly Khadim Hussain tenant was also not present there. On suspicion the complainant raised hue and cry which attracted Shaukat Ali son of Haq Nawaz and Ghulam Qadir residents of Jalilpur. Shaukat Ali and Ghulam Qadir told him that at 12‑00 noon the petitioner while armed with .12 bore gun alongwith seven unknown persons duly armed, have been seen while taking the cotton and peddy on tractor‑trollies. On inquiry of the witnesses, Khadim Hussain/petitioner told that he was going to sell the crops belonging to him. It was further stated in the F.I.R. that the petitioner and others have stolen the produce of the complainant against his wishes without paying his share.

3. Learned counsel for the petitioner contended that from the contents of the F.I.R. no offence under section 379, P.P.C. is made out against the petitioner and that the complainant had admitted the petitioner as his tenant.

4. On the other hand, learned Assistant Advocate‑General has opposed the grant of bail to the petitioner.

5. I have heard both sides at length and perused the record. The complainant in the F.I.R. has admitted that the petitioner was his cultivator as tenant of his land and, he had sown the crops of cotton in his land which he has taken without paying him the share of produce.

6. Section

378. P.P.C. defines the definition of theft which is reproduced as under:‑‑ "Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft." Section

379. P.P.C. has provided the punishment for theft which contemplates:‑‑ "Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 7. . The persons already in occupation, cultivating and enjoying land, whether with or without title cannot be charged of offences under sections 447 and 379, P.P.C. for removing produce of such land. In this context reference can be made td the case of Fakharul Islam v. The State (PLD 1968 Dacca 678) and Ishaq Mian and others v. Abdul Malik (PLD 1958 Dacca 564) wherein the Court has observed that no charge would lie under section 379, P.P.C., for taking peddy out of the possession of the complainant when he was debarred from entering upon the disputed land and exercising any act of possession in respect thereof.

8. In case of Abdullah v. The State (1998 PCr.LJ 732) it has been observed by the Hon'ble Judge of the Karachi High Court that the dispute between the parties was over Zamindari share which could be decided only by Tenancy Tribunal constituted under Sindh Tenancy Act, 1950, and not by filing criminal proceedings. In that case Zamindar has reported that his land is situated in Deh Abdo Mehando. Abdullah son of Allah Dino Jat is the Hari of this land and there were other Haris also and his Hari has taken the crops without paying him his due share of crops. The High Court in exercise of its jurisdiction under section 561‑A, Cr.P.C. quashed the F.I.R. against the Hari/tenant. .

9. In the instant case, the relationship of landlord and the tenant is established from the contents of the F.I.R. and if the tenant has lifted the crops without the payment of share to the landlord/complainant, he has not committed any offence as his action does not fall within the ambit of provisions of section 378, P.P.C. Mere reading of the F.I.R. does not constitute the offence under section 379, P.P.C. against the petitioner.

10. In view of the above discussion, this writ petition is accepted and the case F.I.R. No.273 of 1999, dated 20‑11‑1999, registered under section 379, P.P.C. at Police Station Abdul Hakim is hereby quashed. H.B.T./K‑4/L?? Petition accepted.