P L D 1967 Lahore 65 (PLP)

Date of hearing: 17th June 1966. This is an application under section 561‑A, Cr. P. C. for quashment of the proceedings under sections 379/406, P. P. C. pending against the, applicant in the Court 'of a 1st Class Magistrate, Sheikhupura.. The admitted facts are these: Muhammad lqbal, applicant No. 1 is the lessee. of the com plainant, Fazlur‑Rehman, respondent in respect of a certain land. Under the terms of the lease, which‑ was read out by the learned Advocate for the respondent, it was stipulated that Muhamma4 Iqbal would be responsible for the safe custody of the trees standing on the land. Admittedly, Muhammad Iqbal. is in possession of the land as also the trees standing, thereon. A tree worth Rs. 100.00 had fallen. It is alleged by the respondent that the applicant with the help of other applicants .removed i from the place where it had fallen down to his own house. The further admitted position is that Fazlur Rahman does not live on the land or near‑about it.

2. The main contentions of the learned Advocate for the applicants are .two, which I propose to dispose of separately.

3. It has been contended that no offence under sections 379/406, P. P. C. was made out on the facts alleged in the complaint. A perusal of the complaint would show that no case under the said sections has, been made out. "Theft" has been defined as 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: The essential ingredient of section 378, P. P. C. is that the property, which is the subject matter of theft, should be in possession of someone else than the person charged with theft. In this case, admittedly Muhammad Iqbal was in possession of the tree which had fallen down. I am clearly of the view that on the admitted facts, no case under section 379, P. P. C. is made out.

4. So far as the, offence under section 406, P. P. C. is concerned, the complaint does not disclose that Muhammad Iqbal and others have dishonestly misappropriated or converted to their own use the tree, or dishonestly used. or disposed of the same, in violation of any direction of law prescribing the model in which such trusts had to be discharged or of any legal authority. The lease deed between Muhammad Iqbal and. Fazlur Rehman does‑not disclose as to how a tree that had fallen was to be disposed of. In these circumstances, the mere fact that Muhammad Iqbal with the help of others removed the tree to his own house would‑ not disclose dishonesty on their part within the meaning of section 405, P. P. C. Something more must be alleged to show the requisite intention mentioned in section 405, P. P. C. It may well be that Muhammad Iqbal removed the tree to his own house in order to guard it from theft. At any rate, even if a case under section 406, P. P. C. is made out, in view of the other contention, which I would presently deal with, the learned Magistrate had no jurisdiction.

5. Under section 3 (1) of the Conciliation Courts Ordinance, 1961 (hereinafter to be referred to as the Ordinance), all cases falling in Part I of the Schedule to the Ordinance, had to be referred to Conciliation Courts under the Ordinance and no civil or criminal‑ Court is to have jurisdiction to try any such offence. The offence under section 406, P. P. C. is mentioned in Part I of the Schedule if .the value of the property does not exceed Rs. 100.00. In the present case, the value of ,the property was given by the complainant as Rs. 100.00 only.

6. On the other hand, the learned' Advocate for the respondent submitted, relying upon section ' 18 of the Ordinance that if the Court has taken cognizance of the offence it is in its discretion either to try it itself or to refer it to the Conciliation Court. There is not much force in this contention. In order to appreciate the contentions of the learned Advocates for the parties, it would be useful to reproduce section 18 of the Ordinance which runs as under:‑ "Nothing in this Ordinance shall prevent the police from investigating a cognizable case by reason of the fact that the case relates to an offence specified in Section A of Part I of the Schedule, but if any such case is taken to a criminal Court such Court may, if it thinks fit, direct that it be referred to conciliation‑ under this Ordinance." The words which I have underlined in the section are very important. "Such case" refer to the case in which the police has started investigation and not a case which has come before the Court on the complaint of a party. Such a case, if the value of the property involved is not more than Rs. 100.00, I am D clearly of the view would be cognizable only by a Conciliation Court. In that view of the matter, the learned Magistrate bad no jurisdiction to deal with the offence under section 406, P. P. C.

7. For the reasons given above, I would quash the proceedings pending before the learned Magistrate. K. M. A. Proceedings quashed. *Here in italics