1986 PLP 1167 (MLD)

Kh. Muhammad Asghar for A.‑G. for the State. Ch. Masood Ahmad Ghuman for Respondent No.2 Date of hearing: 18th March 1974. Rehmat Ali, Farman Ali, Mst. Aisha and Mst. Khurhsid Bibi the two sons, the vidow and the daughter of Muhammad Ramzan, caste Kashmiri residents of Ghakkar Mandi, District Gurjanwala, are being prosecuted under section 448, P.P.C. for committing criminal trespass in a Kotha and Dera Pir Shah situate in a portion of Khasra No.1165 of the revenue estate of this village.

2. They have approached this , Court through a petition under section 561‑A of the Criminal Procedure Code for quashment of the proceedings on the ground of false implication under the undue influence of the local Peoples Party, the inordinate delay in lodging the report through the good offices of then Health Minister hailing from the brother‑hood of the opposite party and 'the negation of their claim by the revenue record and a decision of the civil Court.

3. A notice was, therefore, issued to the State and the private complainant and after hearing their. counsel and the perusal of the record, I am inclined to, agree with the above contentions of the learned counsel for the petitioners.

4. The main contention about inordinate delay and use of under influence in getting this case registered against them is borne out from the initial complaint itself which was drawn out on the 11th of September, 1972 and presented to Ch. Irshad Hussain, the Minister for Health on 23rd September, 1972, who endorsed it to the Circle Inspector for registration of the case if any offence is made out from the same. I' was not refuted that this ex‑Minister was a prominent Zamindar of the very district who was on the back of this complainant. It could b safely urged that no case could be registered against them after such a long time till the complainant party had succeeded in obtaining this endorsement of a local person in power from among the ruling party. This extremely belated effort to oust the petitioners from the premise in dispute would certainly lend grave doubts to the prosecution case.

5. It is, however, admitted in the complaint itself that Muhammad Ramzan Kashmiri (the father of Rahmat Ali, Farman Ali, and Mst. Khurshid Bibi as also the husband of Mst. Aisha) was in occupation of the premises in dispute as Jharru Kash of said Mazar and as after her death the present petitioners were not interested in performing this duty the owners of the land connected with this shrine, namely, Fazal Hussain son of Muhammad Hussain, Ch. Ismat Ullah son of Ghulam Qadir appointed, the complainant, as Jharru Kash in his place through a document, dated 22nd January, 1970 (its copy is on the record of the case), but the claim of these alleged owners of the land in dispute is belied by the uptodate revenue record itself, the photostat copies of which have been placed on record (after seeing the certified copies which have been returned to the petitioner's counsel) describing it as "Maqbooza Ahle Islam". He has also produced a certified copy of an order, dated 8th October, 1970 passed by the Collector Gujranwala in which the two widows of aforesaid Muhammad Hussain (Mst. Khurshid Bibi and Saira Bibi) were respondents. It shows that with the connivance of the Patwari Halqa the entry in respect of this Khasra No.1165 changed in 1969 in their favour which was corrected and resorted as "Maqbooza Ahle Islam" according to the earlier entries on the application made by one Malik Abdul Qayum Akhtar of Ghakkar Mandi. Another certified copy of an order passed by the Civil Judge, Wazirabad on 19th September, 1972, in a suit for permanent injunction filed by the same Abdul Qayyum Akhtar against the same abovenamed, two ex‑widows of said Muhammad Hussain (one of the alleged owners) their three sons and three daughters. Ismat Ullah and Azmat Ullah (the above‑named claimants‑owners) and some others. Through this order a temporary injunction restraining the above‑named defendants from interference in the land in dispute was confirmed by the learned Judge till the decision of that suit which is still pending in the Civil Court at Wazirabad. The appeal filed against this order was dismissed by District Judge, Gujranwala and copy of his judgment is also placed on record.

6. These two judgments of the civil Courts support prima facie theJ assertion of the petitioners that the land in dispute including the Koth4 and Dera built thereon is "Maqbooza Ahle Islam" and not in the possession of the alleged owners Fazal Hussain, Muhammad Hussain, Ismat Ullah, Azmat Ullah through whom Allah Lok complainant claims to have been installed as Jharru Kash over the head of the petitioners, who ar C sons, daughters and widow of Muhammad Ramzan, the former Jharru Kash. They have at least a bona fide claim to occupy the premises is dispute as heirs of the admitted Jharru Kash whose name is also mentioned as such in the relevant columns of the Jamabandis since long. As suc the prosecution of the petitioners is most likely to end in smoke and t avoid this unnecessary waste of public time and money, I accept this petition, and quashing the proceedings order that they shall stand discharged in this case under section 448, P.P.C. S.A. Petition accepted.