1985 P Cr (PLP)

This is a petition under section 561‑A, Cr.P.C. by Qaiser Mahmood, petitioner, for the quashment of the criminal proceedings instituted against him and others under sections 379/427/440/506, P.P.C. before the Ilaqa Magistrate, Sialkot.

2. The brief facts of the case are that the petitioner, his two brothers, his mother and his step‑father reside in a house in Hakiman Street, Sialkot, owned by Muhammad Ayub, Muhammad Ismail, Muhammad Aslam, Muhammad Yousaf and Muhammad Ishaq, sons of Ghulam Hussain and one Ghulam Muhammad son of not known. It is submitted that the said landlords attempted to get possessions of the house by force with the help of some Goondas in the year 1977, on which occasion Mst. Amina Bibi, the mother of the petitioner, instituted a civil suit in the Civil Court at Sialkot for permanent injunction against the landlords, wherein status quo was issued and in which suit the landlords gave an undertaking that they would not dispossess the petitioner's mother in any illegal manner. It is urged that in 1984 Muhammad Ayub, landlord, in connivance with some Goondas and women of ill repute, tried to dispossess the petitioner's mother by trying to throw the household effects of the house into the street, but the petitioner's mother again filed a civil suit and got a stay order, in which suit again Muhammad Ayub, landlord, gave an undertaking that he would not dispossess the Petitioner's mother in any illegal manner. Accordingly, the suit was disposed of as having become infructuous. It is urged that a third attempt was also made in the same direction in respect of which the matter was reported to the local police, but no action was taken by them. Failing in these attempts to get the petitioner and his family evicted, Muhammad Ayub, landlord, through the assistance of one Muhammad Afzal Naqshbandi, an intimate friend of his, who had very good relations with Syed Raza Hassan D.S.P., managed to get a false criminal case registered against him and his family, in which the said landlord alleged that the petitioner had trespassed into two rooms in the house, which were in his possession and which contained his goods, and that the petitioner and his family members not only stole his goods, but also pulled down the roofs of the said rooms. It is submitted that actually the landlord never had possession of two rooms in the disputed house, but that all the accommodation %was in the occupation of the petitioner and his family and that there were no goods of the landlord in the said rooms nor had the petitioner or others stolen the goods. As regards the allegation regarding the pulling down of the roofs of the two rooms, it is submitted that the roofs had caved in due to the rafters having partly decayed due to rain and seepage and that these rafters etc., were lying in the compound. It is further submitted that actually the petitioner's mother had even got the repairing of one of the rooms of the disputed house done at her own expense.

3. On behalf of the complainant it is submitted that the, question whether the two disputed rooms, referred to by the complainant in his F.I.R., were in his possession and that the same contained his goods, are incorrect allegations or not, are disputed questions of fact, which can only be gone into by the trial Court and that since the petitioner did not care to make any application under section 249‑A, Cr.P.C. before the trial Court, the petitioner is not entitled to have the criminal proceedings quashed.

4. On 2‑12‑1984 the Investigating Officer with the police file was summoned. The trial Court files of the two cases instituted by the petitioner's mother were also ordered to be summoned for today's date of hearing. Arguments were addressed by both the learned counsel for the petitioner and the complainant on 2‑12‑1984 and today. Since full arguments have been addressed on the matter and the Investigating Officer, who i.g present, also submits that the challan in the case has been lodged, this petition is being admitted and will be disposed of by this order as a notice case.

5. I have heard the arguments of the learned counsel for the petitioner and the complainant. The first suit filed by Mst. Amina Bibi, petitioner's mother, on 11‑1‑1977 is against Muhammad Ayub's brothers etc., where the landlords gave an undertaking not to dispossess her illegally. The second suit instituted by Mst. Amina Bibi on 5‑1‑1984 is against Muhammad Ayub and others, in which suit Muhammad Ayub gave an undertaking not to illegally dispossess the petitioner's mother, upon which the suit was disposed of as having become infructuous. The statements of the landlords in both the suits not to illegally dis?possess the petitioner's mother and the order of the Civil Judges holding the suits to be infructuous, have been inspected. In both the said suits, the petitioner's mother had referred to the property in dispute as four rooms, two store rooms, a kitchen and an open courtyard. In the earlier suit filed by the petitioner's mother against the landlords, the site plan of the house had been filed. This site plan corresponds with the site plan prepared by the Investigating Officer in the present criminal case filed against the petitioner and four others, except that in the site plan prepared by the Investigating Officer, the narrow staircase between the block of four rooms has not been shown. The site plan as appearing in the first suit filed by the petitioner's mother is as follows:‑ Site plan in Suit No.483/77 re Mst. Aimna Bibi v. M. Ismail and others Decided on 22‑2‑1977 It is the case of the petitioner that the two rooms shown on the extreme ends of the disputed house are actually with her. The comp?lainant, who is the present landlord, submits that the two rooms which were in his possession are not these, but the two rooms on either side of the staircase in between the four rooms in the middle. Now the staircase shown in the site plan with the civil suit is so narrow, that it does not admit of two rooms on either side. The site plan prepared by the Investigating Officer does not show the staircase at all. At the last hearing when the site plan prepared by the Investigating Officer was inspected, he pointed out to me the two rooms on the extreme ends of the disputed house as those which were in the possession of the landlord, of which the roofs had been demolished and from which his goods were stolen. Today, he has changed his position by stating that the disputed two rooms are not shown in the site plan, as the same has not been prepared to scale, but that they are those on either side of the staircase, which falls between the four rooms. Now it is unimaginable that an Investigating Officer would prepare a site plan without showing the disputed rooms therein. The fact that the Investi?gating Officer has so quickly changed his position before me, shows strongly he is "hand‑in‑glove" with the complainant. The allegations Of the appear to be palpably false and that the present case appears to have been filed with the motive of harassing the petitioner and his family members. The fact that certain recovery witnesses are shown on the record, does not prove anything material. They only prove that broken rafters were recovered from the courtyard the petitioner's house. This position is also admitted, but it is stated that the roofs of the two store rooms had caved in and that the rafters s of these rooms were lying in the courtyard. Nobody is a direct witness roofs. The petitioner and his family being seen pulling down the roofs. The prosecution appears to have been maliciously lodged, to compell the petitioner and his family members to give up their possession. The filling of the challan, therefore, appears to be an abuse of the Court. 5‑A. For the foregoing reasons, this petition is accepted and the criminal proceedings against the petitioner and others under sections 379/427/440/506, P.P.C. pending in the Court of the Ilaqa Magistrate, Sialkot, are hereby quashed. M. A. K.????????????????????????????????????????????????????????????????????????????????????????????? Proceedings quashed.