1988 PLP r (PCRLJ)

(f) Words and phrases

'Threat'--Meaning. S. Zafar Abbas Zaidi for Petitioners. A.A.-G. for the State. Date of hearing: 21st March, 1988. On 5-3-1985, Momin Khan complainant lodged a report in Police Station Tank that at sun rise time he alongwith his brother when went to his fields they noticed the convicts-petitioners Mirabat Khan and Qismat Khan cutting reeds from his field while Darya Khan and Afsar Khan convict-petitioners were standing there armed with fire arms' and when the complainant shouted at them the two convicts? petitioners Darya Khan and Afsar Khan allegedly fired 4/5 shots in the air to criminally intimidate him which forced the complainant and his brother to run from the spot for their lives. The motive was given to be a dispute between the complainant party and the accused party over the field from which the accused party was cutting reeds. This report was recorded per F.I.R. No.149 of Police Station Tank. After due investigation by the local police the case was put in the Court of E.N.C. and Magistrate First Class, Tank and on conclusion of the trial the learned Magistrate by his order dated 18-8-1987, convicted all the four accused-petitioners under both the sections i.e. 506, P.P.C. and 447, P.P.C. and sentenced them each to one year S. I. each under each section of law. Aggrieved by their convictions and sentences the four accused-petitioners preferred an appeal in the Court of the learned Sessions Judge, D.I. Khan who entrusted the same to the Additional Sessions Judge, D.I. Khan who by his order dated 15-11-1987, maintained the convictions and sentences awarded to the four accused-petitioners which has obliged the accused-petitioners to come to this Court for their redress through the instant criminal revision petition.

2. Arguments of the learned counsel for the petitioners and the learned Assistant Advocate-General on behalf of the State have been heard and record of the case has been examined.

3. It is the prosecution case that while accused-petitioners Darya Khan and Afsar Khan were standing armed with fire-arms the other two accused-petitioners namely Mirabat Khan and Qismat Khan were busy cutting wheat crop from the land in dispute. It is also the consistent evidence of the prosecution witnesses that Darya Khan and Afsar Khan fired 4/5 shots at Momin Khan complainant but he escaped unhurt. To bring home charge under section 506, P.P.C. it is essential that there should be a criminal intimidation and the person charged must be shown to have actually threatened another with injury to his person or property with intent 'to cause alarm. Under section 503, P.P.C. criminal intimidation has been defined as follows: "Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any, act which he is not legally bound to do, or to omit to do any act which that person is legally entitled, as the means of avoiding the execution of such threat, commits criminal intimidation." The word 'threat' implies a declaration or indication of an intention to inflict, punish or hurt; to intimidate by threats; to indicate danger. Now from the bare reading of section 503, P.P.C. which has defined criminal intimidation a threat to an other with any injury to his person etc. read with the ordinary dictionary meaning of threat would' clearly suggest that it must be a declaration or indication of an intention to inflict a hurt etc. In this case, however, the allegations are not merely of threat, on the other hand it is consistently alleged by the prosecution witnesses that Darya Khan and Afsar Khan accused-petitioners fired 3/4 shots at Momin Khan complainant. Momin Khan complainant in his statement deposed that when he shouted at Qismat Khan and Mirabat accused-petitioner who were busy in cutting wheat crops from the land, Darya Khan and Afsar Khan accused?-petitioners who were armed with 303 bore rifles fired 3/4 shots at him. Zaman (PW) in his statement stated that Darya Khan and Afsar. Khan accused-petitioners fired 4/5 shots at Momin Khan but he escaped un-hurt. This would thus clearly suggest that if the evidence of the aforesaid P.Ws. is believed the accused-petitioners did not exhibit only a threat but on the other hand by firing at Momin Khan they committed an act with an intention to attempt at the life of Momin Khan which act of the accused in those circumstances was punishable under section

307. P.P.C. and not under section 506, P.P.C. On the other hand in the first information report Momin Khan in clear words opposed that the two accused-petitioners namely Darya Khan and Afsar Khan who were armed with rifles fired 415 shots in the air. Now firing 'in the air amounts to criminal intimidation and firing at a person amounts to attempt at the life, thus the complainant and his other witnesses have improved upon their earlier stand to enhance the gravity of the offence which by itself is a sufficient ground to discard the prosecution case. But on the other hand nothing has been brought on record to corroborate the allegations of the prosecution witnesses that the accused-petitioners had in fact either fired at Momin Khan or had fired in the air. No empty, shell, bullet or pellet has been recovered from the spot. In such a situation where the prosecution witnesses have improved upon their statements and nothing has come on record to corroborate assertion of the prosecution with regard to the firing by the accused party, the conviction of the accused under section 506, P.P.C. was not called for and accordingly I acquit the four accused-petitioners of the charge under section 506, P.P.C.

4. As far as the charge under section 447, P.P.C. is concerned it is the duty of the competent Court of jurisdiction to protect against trespasser the persons who are in peaceful possession of the property. Whether a person is rightful owner of the land in which trespass is made or not is immaterial in cases under section 447, P.P.C. but the possession has to be proved. In this case the only witness who could corroborate the testimony of the complainant with regard to his possession over the disputed property was the Patwari who has not been produced to support the contention of the complainant. On the other hand Momin Khan complainant has deposed that he had noticed cutting of wheat crop from the land in dispute even prior to the day of occurrence And in the process to ascertain as to 'who were cutting the wheat crop he alongwith his brother when on the day of occurrence went to the land they noticed Qismat Khan and Mirabat Khan accused? petitioners cutting the wheat crop. His brother Muhammad Zaman stated that wheat crop from about 4 Kanals of land had been cut on the day of occurrence: Malik Qutab Khan (PW), however, contradicted him when he admitted in his statement that wheat crop from about a Marla of land had been found cut. Although I am of the firm view that on the basis of the evidence produced at the trial the prosecution has not been able to bring home guilt to the accused-petitioners because both the parties had claimed possession over the land in dispute and the perusal of the contents of the F.I.R. lodged by Momin Khan. complainant would also suggest that there was a dispute over the suit land between the complainant-party and the accused-party and since the prosecution did not produce the Patwari Halqa who would throw light on this aspect of the matter, it becomes doubtful if the complainant was in possession of the land. In these circumstances even if the prosecution evidence that the accused-party was cutting the wheat crop is believed to be correct , the question of criminal trespass is not proved and the accused-petitioners are also liable to acquittal under this section of law.

5. Before I part with I would like to point out that the maximum Punishment provided under section 447, P.P.C. is three months but the learned trial Court inflicted a sentence of one year under this section and the learned appellate Court as well maintained the sentence of one year. Thus, both the Courts below failed to apply their minds to this aspect of the matter which is the worst type of incompetency.

6. During the course of arguments learned counsel for the petitioners contended that under subsection (1) of section 3 of the Conciliation Courts Ordinance, 1961 all cases failing under Part II of the schedule, which include sections 506 and

447. P.P.C. shall have to be referred to the conciliation under the said Ordinance and that no civil or criminal Court has jurisdiction to try any such case. According to him since matter was not referred to the Conciliation Court the Magistrate acted without jurisdiction and, therefore, all the proceedings taken in the matter were null and void: He placed reliance on Yasin Ahmad petitioner versus Muhammad Qasim respondent reported as 1985.P Cr. L J 384 wherein it was held that:- "Conciliation Court-Direct complaint--Neither Conciliation Court constituted nor direct complaint handled by such Court but instead Magistrate acted alone and issuing process by exercising ordinary powers of Magistrate--Magistrate, held, acted without jurisdiction--Proceedings before such Magistrate amounted to abuse of process and quashed in circumstances." I however, do not agree with the learned counsel for the petitioners that in this case the Magistrate acted without jurisdiction because under section 18 of the Ordinance nothing 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 authority quoted by the learned counsel for the petitioners, with respect, I must say, is altogether on a different point. In that case a direct complaint was made to the Magistrate and in such a situation it was incumbent upon the Magistrate to have referred the matter to the conciliation but in the instant case cognizance was taken by the Police and under section 18 ibid the Magistrate was quite within this jurisdiction to try the case. Reliance in this connection may be placed on Sarkar petitioner versus Jamad Ali and others respondents reported as 1968 P Cr. L J 958 wherein dealing with section 18 of the Conciliation Courts Ordinance it has been held that:- "The words 'such Court may, if it thinks fit, direct that it be referred to conciliation under this Act' clearly give a dis?cretion to the Court to which a cognizable case is taken by the Police after investigation, either to refer it to Conciliation Court or not. If the Criminal Court does not deem it proper to refer the matter then it will be perfectly within its jurisdiction to do and it can, in such cases, proceed to try the case itself. The provisions of section 3 (1) (a) would not stand in its way because clause (a) of subsection (1) of-section 3 by using the words 'save as otherwise provided, hereinafter' provides to the generality of the rule contained in that section. On this view of the matter I hold that if a cognizable case when investigated by the Police is put in the Court of a Magistrate it is the discretion of such Magistrate either to try the case himself or to refer it to the Conciliation Court and any way he adopts it is within his jurisdiction.

7. For the foregoing reasons I am of the view that the prosecutions had failed to bring home guilt to the accused-petitioner beyond reasonable doubt and extending them the benefit of doubt by accepting this criminal revision petition I acquit them all. They are on bail and are discharged of the liability of the bail bonds. M.Y.H./611 /P???????????????????????????????????????????????????????????????????????? Petition accepted.