1992 PLP 345 (MLD)

‑‑‑‑S. 297‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Magistrate after recording evidence of the Patwari only accepted the application of accused under S.249‑A, Cr.P.C. and acquitted them‑‑‑High Court in appeal filed by State against their acquittal observed that if the prosecution was able, to prove, which could only be proved when all the evidence had been allowed to be produced, that disputed property was actually a graveyard, then the subsequent dealings of sale/purchase etc. would not have made any difference, because once a trust i.e. graveyard, mosque or the like is created that would always remain so particuarly in an Islamic State‑‑ Magistrate, thus without adverting to such aspect of the case had stifled the prosecution‑‑‑Order of acquittal passed by Magistrate was consequently set aside and case was remanded with the direction that the same be proceeded with on merits. Najamuzzaman, A.A: G. for the State. Ch. Abdur Rashid Monan for Respondents, Date of hearing: 29th April, 1991 Gulzar Muhammad, Muhammad Mukhtar and Muhammad Amin respondents were sent up to face trial for an offence under section 297, P.P.C. (on the allegation that they trespassed into the under‑construction courtyard comprised in Khasra No.4380 and raised shops thereon. They were charge sheeted and Shaukat Ali Patwari (P.W.1) was examined. Thereafter, application of the respondents under section 249‑A, Cr.P.C. was accepted by the Magistrate and order of acquittal recorded on 27‑12‑1986. This is a State appeal against the same.

2. Learned counsel for the parties have been heard and record appreciated. The case was registered on the report of Tehsildar Cantt. Lahore. Shaukat Ali Patwari made statement that in the Jamabandi for the year 1941‑42 this Khasra number measuring 6 Kanals 14 Marlas and 202 sq. ft. though entered in the proprietorship of Mst. Wazir Begum etc., was recorded as in the column. He, however, further stated that since 1979‑80 this area was being sold an treated as. If the prosecution was able to prove, which could only be proved, when all the evidence had been allowed to be produced, that it was actually a graveyard, then the subsequent dealings of sale/purchase and getting the entry made of would not make any difference, because once a trust i.e. graveyard, mosque or the like is created that would always remain so particularly in an Islamic State. The learned Magistrate, without adverting to this aspect of the case stifled the prosecution.

3. The appeal is, therefore, accepted. The order of the learned Magistrate is hereby set aside. The application under section 249‑A, Cr.P.C. is I dismissed and the case is remanded with the direction that it be proceeded with on merits. Record be sent back to the District Magistrate who would entrust the case to a Magistrate of competent jurisdiction for trial. N.H.Q./S‑20/L Appeal accepted.