' SAIF-UR-REHMAN, J.--- A case was registered vide F.I.R. No,157 of 2008 dated 28-5-2008 under sections 379, 188, P.P.C. Police Station Saddar Jalalpur Pirwala. District Multan wherein Liaqat Ali complainant alleged that he owned land mentioned therein. Petitioner was a tenant under the complainant who had removed the wheat crops from his land in violation of order issued under section 144, Cr.P.C.
2. The petitioner seeks quashment of aforesaid F.I.R. Through this constitutional petition.
3. Relying on the authorities report in 2006 YLR 2815, 1997 PCr.LJ 589, 1993 PCr.LJ 2306, 1988 PCr.LJ 988, PLD 1967 Pesh. 307, 2000 M LD 762, PLD 1968 Dacca 678, 1998 PCr.LJ 732 and PLD 1958 Dacca 564, learned counsel for the petitioner contended that only a public officer whose order allegedly was violated or the officer to whom the said public officer was subordinate, could get a case registered under section 188, P.P.C. Because it was so laid down in section 195, Cr.P.C. And that a case could not be registered under section 379, P.P.C. Against a tenant, therefore, in the light of referred case- law, the F.I.R. Was liable to be quashed. The vires of section 144, Cr.P.C. Were also challenged having not been passed on the recommendation of S.S.P. And E. D . 0 . (R) .
4. Opposing the petition, learned counsel for the respondents submitted that remedy in the form of provisions laid down under section 249-A, Cr.P.C. Was available to the petitioner, therefore, petition under Article 199 of the Constitution of Islamic Republic of Pakistan was not maintainable. Reliance in this context was placed on 2005 PCr.LJ 2022 and PLD 2007 SC 48.
5. A bare perusal of the F.I.R. Indicates that complainant of F.I.R. In question approached the S.H.O.
Mainly with the story that crops had been removed by the tenant in violation of section 144, Cr.P.C.
The act of violation of order passed under section 144, Cr.P.C. Makes it culpable under section 188, P.P.C. No Court can take cognizance of offence under section 188, P.P.C. Except on complaint in writing of the public servant concerned or some other public servant to whom he is subordinate.
Section 195(1)(a), Cr.P.C. Therefore, lays an express bar on a private person to approach the police for registration of the case under section 188, P.P.C. Same is the ratio of the above quoted case-law referred to by the petitioner.
6. Offence of theft is defined in section 378, P.P.C. The punishment for which is prescribed under section 379, P.P.C. Offence under section 378, P.P.C. Shall be made out if some movable property is taken away dishonestly out of the possession of person without that persons' consent etc. A tenant admittedly is in possession of the land and the usufruct arising out of this land with the consent and permission of landlord/owner of such property. He, therefore, jointly holds possession of such property with the consent of its owner. As ruled in the above referred case-law, if any movable property is taken away from such land against the consent o'f its owner, offence under section 378, P.P.C. Shall not be made out.
7. Registration of the case, therefore, was contrary to law and void ab initio.
8. Of course, the petitioner could avail remedy by moving an application under section 249-A, Cr.P.C., however, in the light of above mentioned circumstances, his right to approach this Court under Article 199 of the Constitution cannot be taken away. The case-law relied upon by respondent No,5, therefore, shall not apply to this case.
9. Learned counsel for respondent No,5 while referring to illustration of (d) of section 378, P.P.C.
Contended that the status of a tenant was like that of a servant, hence, removal of crops by the tenant against the consent of the landlord shall amount to theft in the light of the said illustration.
10. I am unable to agree with the reasoning of learned counsel for respondent No,5 for the simple reason that status of a tenant cannot be equated with that of a private servant. The rights and liabilities of tenant and landlord are regulated by the Tenancy Act. Whatever is cultivated and grown by the tenant on the land claimed by the landlord, is shared by the tenant or in other words, his right of ownership extends to the crops grown jointly with the owner and he is entitled to its actual physical possession in the first instance.
11. For what has been discussed above, this petition is allowed and the F.I.R. In question is quashed accordingly.