2006 P Cr (PLP)

MUHAMMAD AKHTAR SHABBIR, J.

Through this petition the petitioner seeks quashment of F.I.R. No.88 dated 21-2-2004 registered under section 447, P.P.C. with Police Station Gujar Khan with the allegation that the petitioner along with other co-accused have illegally committed the theft of crops of the complainant and when she tried to cultivate the land through tractor the petitioner along with others armed with sticks entered into her land and used abusive language against her and her son restrained the driver of the tractor from ploughing the land.

2. Learned counsel for the petitioner contended that the petitioner is not sole owner and in occupation of the land in dispute. He further argued that the property in question has the joint ownership of the co-sharer including the present petitioner and other co-accused named in the F.I.R.

3. On the other hand, learned A.A.-G. has vehemently opposed the arguments of learned counsel for the petitioner.

4. I have heard the learned counsel for the parties and gone through the record.

5. As per allegation of the complainant the petitioner along with other companions forcibly entered into the possession over the land in dispute and also illegally made theft crops sown by the complainant. In column of ownership of register of record of rights pertaining to the years 1998-99 of the land in dispute, the names of Abdul Waheed, Zahoor Ahmad, Faisal, Haider and Muhammad Zamir sons of Abdur Rashid are entered and in cultivation column No.4 of said document, the names of Mst. Shamim Akhtar, along with Majeed Hussain, Ibrar Hussain and Imran Hussain son of Muhammad Bashir are also entered which shows that the complainant as well as petitioner and other persons named in the F.I.R. are share-holders of the property in dispute. It is settled proposition of law that in a joint Khata a co-sharer is sharer in every piece and parcel of land as laid down in cases of Muhammad Yousaf v. Board of Revenue 2001 SCR 324 and Abdul Rehman v. Amrat PLD 2003 Lah. 186.

6. The offence under section 447, P.P.C. reads as under: "Where commits criminal trespass shall be punished with imprisonment of either description for a term which may extend to 3 either description for a term which may extend to 3 months or with fine which may extend to (one thousand five hundred rupees) or with both." The offence criminal trespass has been defined in section 441, P.P.C. which contemplates as follows: "Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult of 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 of offence, is said to commit `criminal trespass'." From the plain reading of the provision of section 441, P.P.C., it is manifestly clear that to constitute an offence of criminal trespass one must enter into the possession of another unlawfully 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 is said to commit "criminal trespass". As per the documents annexed with this petition, the copies of record of rights, it is established that the complainant was not the exclusive owner in possession of said Khasra numbers. All the persons including petitioner whose names are appearing in the column of ownership of record of rights shall be deemed to be in possession over the said property.

8. The prosecution in order to establish the offence of `criminal trespass' must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent or at any rate constituted not more than a subsidiary intent. Entry upon land made under a bona fide claim, however, ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the B entry is annoyance to the occupant. Reference in this context can be made to the cases of Takri Moosa Khan v. State 1998 MLD 1838, Bhagwan Din v. Emperor AIR 1918 All. 365, Kakayan v. Lee Like AIR 936 Rang. 133 and Ghulam Ahmad v. Emperor AIR 1938 Lah. 848.

9. The petitioner-accused person under a bona fide claim, being the co-sharer/co-owner of the property, entered into the land in dispute and thus, has not committed any trespass.

10. For the forgoing reason, this writ petition is accepted. Consequently, the F.I.R. No.88, dated 21-2-2004 is declared to have been lodged illegally, with lawful authority and of no legal effect, hence, quashed. H.B.T./M-1399/L F.I.R. quashed.