Abdul Razaq, petitioner seeks quashment of proceedings in case FIR. No, 701 dated 8.11.2007 under Sections 506/447/448/379/427 P.P.C. registered at Police Station Waris Khan, Rawalpindi and challaned to the Court of area Magistrate, by invoking the constitutional jurisdiction and inherent powers of this Court.
2. Brief facts giving rise to this constitutional petition may be given first.
3. Pervaiz Khalid, respondent got registered above-said case on 8.11.2007, now under judicial scrutiny, with an allegation that residential plot measuring 1 kanal 17 marlas Bearing Khasra No, 139/1, Khewat Nos, 3050/3070 located in Dhok Illahi Bukhsh, Rawalpindi had been purchased by his father Abdul Ghafoor from its original owner Ishtiaq Ahmad on 17.10.1967 by means of registered 'sale-deed; that Abdul Ghafoor, the vendee raised boundary wall around the plot with an outer gate; that in the year 2004 Abdul Ghafoor died and the plot devolved upon Pervaiz Khalid, respondent-complainant when he got demarcated the plot from the revenue department and learnt that Malik Khuda Bukbsh, Muhammad Rafiq, Muhammad Sharif, Muhammad Siddique, Muhammad Hand, Sher Dad Khan and Muhammad Yaqoob had occupied different portions of the above said plot, constructed houses and had then alienated to Liaqat Ali, Gulraii, Musa, Jamal Muhammad Khan, Muhammad Dawood, Muhammad Yaqoob, Muhammad Ramzan, Aurang Zeb, Rehmat Ullah, Muhammad Ali, Habib Ullah (not parties to this petition) and Abdul Razaq, petitioner herein; that after having examined the revenue record, the respondent-complainant approached the above-named accused persons when they extended life threats and that they all forcibly occupied the plot, demolished the four-wall and took away bricks and the gate.
4. It is not in dispute or disputable and is a matter of record that the transactions in favour of the accused persons given in the FIR. had been affected by means of registered sale-deeds containing altogether different description of the sold properties as under:-- (i)House No, 689-J 'Min' located in Street No, 4, Dhok Illahi (ii)............................................................................................
Bukhsh, Rawalpindi was purchased by Muhammad Yousaf son of Abdul Aziz by means of a registered sale-deed No, 42 dated 5.1.1993 and on his death the property devolved upon his legal heirs including his son Muhammad Yaqoob, who farther alienated his share to Abdul Razaq, petitioner herein vide registered sale-deed No, 3975 dated 26.8.2002..
(iii)Muhammad Rafiq alienated house No, 689-J 'Min' located in Dhok Illahi Bukhsh in favour of Gulraiz and Muhammad Mushtaq (accused persons) under registered sale-deed dated 2.9.2004.
(iv)Haji Aman Khan purchased House No, 689-J 'Min' situated in Dhok Illahi Bukhsh Rawalpindi from its original owner vide registered sale-deed No, 665 dated 22.2.1967 and then further alienated in favour of Muhammad Rafiq vide registered sale-deed, No, 4945 dated 23.10.1973.
(v) Muhammad Siddique and Muhammad Hand acquired ownership in House No, 689-J 'Min' by means of registered sale-deed No, 10035 dated 24.10.1984 and then sold it in favour of Muhammad Dawood, Muhammad Yaqoob, Muhammad Ramzan and Aurang Zeb vide registered sale-deed No, 1120 dated 28.1.1990.
(vi)Sher Dad Khan sold a piece of land Bearing Khasra No,
(vii) 150 Khewat No, 131/177 of revenue estate Mureerh Hassan in favour of Habib Ullah and Muhammad Ali vide registered sale-deed No, 1692 dated 16.4.1970.
(viii) Aman Khan son of Hameed khan sold Khasra No, 150, Khewat No, 312/363 of revenue estate Mureerh Hassan in favour of Sher Dad Khan by means of registered Sale-Deed No, 3894 dated 7.11.1967.
(ix)Muhammad Shafi son of Muhammad Ramzan purchased House No, 689-J 'Min' vide registered sale-deed No, 338 and then sold in favour of Muhammad Yousaf son of Abdul Aziz vide registered sale-deed dated 5.1.1992.
(viii) Mst. Farida Khanum wife of Fazal ur Rehman sold House No, 689-J 'Min' in favour of Muhammad Shafi Bhatti through the registered sale-deed No, 338 dated 3.1.1990.
5. Learned counsel for the accused-petitioner contended that the respondent-complainant laid a civil dispute before the police and got it challaned to Court after having won the favour of the investigator for some consideration extraneous to the record. On the other hand learned counsel for the respondent-complainant has vehemently argued that the High Court does not have the jurisdiction to investigate the case or to quash the F.I.R. exercising constitutional jurisdiction under Article 199 of the Constitution or under Section 561-A Cr.P.C.. Reliance was placed on the case law laid down in Dr. Ghulam Mustafa u. The State and others (2008 SCM R 76).
6. I have heard both the sides at some length and have perused the record of ownership in the light of the law governing the subject of investigation and trial of criminal cases. Admittedly, the accused persons acquired interest and title in the disputed property by means of registered sale- deeds long ago. The registered sale-deeds favourable to the accused persons still hold the field.
During the course of arguments it was disclosed by both the sides that the respondent- complainant also filed a civil suit for cancellation of the registered sale-deeds in question. Be that as it may, the fact remains that the registered sale-deeds in question executed and registered many years back have not been cancelled by the Registrar or the Civil Court seized of the trial of civil suit filed by the respondent-complainant. The respondent-complainant called in question legality and correctness of the long standing entries of the registered sale-deeds before the S.H.O., Police Station Waris Khan, without disclosing and explaining as to why and under what circumstances he chose to keep quite for years. At the cost of repetition it is noteworthy that the accused persons constructed houses over the disputed property many years back and then alienated the same to their co-accused persons long ago by means of registered sale-deeds after having got approved the site-plan. The respondent-complainant alleged in the FIR. that the accused persons constructed houses in his owned Khasra No, 139/1. The registered sale-deeds in question do not bear the description of sold property in line with the complainant's allegation. By means of registered sale-deeds some other property had been alienated. A perusal of the record of the criminal case would show that the respondent-complainant and the respondent- investigator approached the revenue Patwari and the Revenue Officer concerned with a request for demarcation of the disputed property unsuccessfully. The revenue officers expressed their inability in writing that in view of the construction at and around the disputed property it was not possible to carry out demarcation proceedings. The request for demarcation by the complainant and the investigator is an evidence that there was/is some dispute of demarcation, which falls within the exclusive domain of the revenue authorities. My this observation is receiving support from a combined examination of the relevant provisions of Land Revenue Act, Land Record Manual and the Land Revenue Rules. I could not understand as to how and with what authority the respondent-S.H.O. took cognizance of the controversy falling within the exclusive domain of the revenue authorities,
7. Learned counsel for the respondent/complainant contended that constitutional jurisdiction under Article 199 of the Constitution or under Section 561-A Cr.P.C. can only be exercised when very exceptional circumstances existed on the record. The learned counsel further argued that the High Court has no jurisdiction to assume the role of investigating agency. I am in agreement with the learned counsel for the respondent that the constitutional jurisdiction or the inherent power should not be exercised mechanically by examining the factual side of the case with the yard-stick of trial Court or the investigating agency. But in the case in hand the above-said contentions of the learned counsel do not help the respondent-complainant in any manner. The F.I.R. sought to be quashed has been worded like a plaint in the civil suit. The complainant-respondent himself stated in the FIR that the accused persons constructed houses in the disputed Khasra number and then alienated the same to different persons through different transactions by means of registered sale-deeds. The available record does not show as to what were the circumstances, which persuaded the complainant to keep quite for years after construction of houses in the disputed property. Likewise, there is no answer from the respondent-complainant or the record as to why the complainant did not stop the construction when raised. and made by the accused persons. As mentioned earlier, during the course of arguments it was disclosed by the learned counsel for the respondent-complainant that a civil suit had also been filed by the respondent-complainant before the Civil Court at Rawalpindi for cancellation of the registered sale-deeds in question.
Admittedly, the Civil Court has not decided the controversy touching the disputed transactions.
After registration of the case, the following important questions arose for determination:--
(i) Whether the accused persons constructed houses in Khasra No, 139/1 as asserted and alleged by the complainant in the F.I.R. or in the Property No, 689-J and Khasra No, 150 as mentioned in the registered sale-deeds?
(ii) Whether it was permissible under the law to challenge legality and correctness of the sale- deeds before the police by way of a criminal case?
(iii)Whether cancellation of registered documents comes within the exclusive domain of the Civil Court and the Registrar?
(iv)Whether self-assertion by the respondent-complainant that the accused persons demolished the boundary wall allegedly constructed by his father and had taken away building material or that the accused persons extended life threats, can be treated as legal evidence?
8. I must say without any fear of contradiction that police station is not the proper and competent forum for resolution of the above-said controversial points. I have already observed that the demarcation dispute fells within the exclusive jurisdiction of the revenue authorities. In the case in hand the revenue authorities expressed their inability to carry out demarcation on account of construction at and around the disputed place. I could not understand as to what was the material before the investigating officer which provided a basis to conclude that the houses had been constructed in Khasra No, 139/I and not in Property No, 689-J and Khasra No,
150. It appears that the investigator accepted the version of the complainant set up in the F.I.R. touching the dispute of description and location of the property as gospel truth. Although this Court cannot assume the role of investigator but at the same time cannot allow the investigating officer to go beyond the allotted area by assuming the jurisdiction of Civil Court or the revenue authorities. By taking cognizance in a demarcation dispute the investigating officer encroached upon the powers and functions of the revenue department.
9. The learned counsel for the respondent-complainant attempted to argue that leaving aside the dispute of title between the parties, there was an allegation that the accused persons took away building material, which constituted an offence under Section 379 P.P.C. I could not persuade myself to attach any importance to the contention. The accused persons took years in constructing their houses over the disputed property after having got approved the site-plans and after having acquired interest vide registered sale-deeds. Some of the accused persons had even purchased the property in the year 1967. This state of affairs stands in the way of the respondent- complainant to allege in the year 2007 that building material had been stolen away. The F.I.R. does not show as to when the building material had allegedly been removed. The complainant also made vague and general allegation of life threats without disclosing as to when, where and before whom the accused persons extended life threats.
10.The ingredients of the offence of criminal trespass under Section 447 P.P.C. as defined by Section 441 of the same Code are to commit trespass to intimidate, insult or annoy any person in possession of the property in dispute. There is a difference between civil trespass by way of taking possession of the property without the consent of the person in possession and the criminal trespass for which insult or annoyance to the person in possession of such property is a condition precedent. A plain reading of Section 441 P.P.C. would show that a D person would not be annoyed or intimidated in absentia and in such a situation the charge of criminal trespass would not be sustainable. I am supported in my view by the case law laid down in Abdul Rasheed and another v.
The State reported as 1983 PCr.L.J. 42.
11.For what has been stated above, I am of the considered and calculated opinion that no useful purpose would be served if proceedings are allowed to continue in the criminal case as it would amount to abuse of process of Court. Resultantly this petition is allowed and the proceedings in the impugned F.I.R. stand quashed.
12.Before parting with this order it is made clear, that the observations made by this Court would not adversely affect the case and cause of either side already laid before the Civil Court.