1. ' SHAHID ANWAR BAJWA, J.---A complaint was filed by present respondent No, 4 (hereinafter referred to as the complainant) against the present applicants (hereinafter referred to as the applicants). It was stated in the complaint that two uncles of the complainant were unmarried and upon their death, they left behind complainant's father and others as legal heirs. Mutation was accordingly effected. When the complainant's father died, he left behind complainant, her three sisters, her brother and her mother as his legal heirs. It was further stated that during life time of complainant's uncle, land in question was on lease basis with the applicants. After mutation land which had a date grove and wheat crop came to share of the complainant and possession of the same was handed over to the complainant party by the Mukhtiarkar and Mashirnama was prepared accordingly. At the time of handing over possession to the complainant party, wheat crop was standing and the complainant party had to receive its Zamindari share. On 5-5-2002 when complainant along with her brother-in-law and another person went to the land to collect the wheat etc. Of her share, they saw accused persons present there, who were removing/taking away the wheat and the wheat stalk. The accused pointed their weapons and forcibly took away 90 maunds of wheat and wheat stalk and issued threats of murder.
2. ' Complaint was filed under sections 447, 148, 149, 506/2, P.P.C. And section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Charge was framed on 29-1-2005 and only sections 448, 148 and 149, P.P.C. Were mentioned. This charge was amended on 28-11-2006 and instead of sections 448, P.P.C., sections 447, 147, 148 and 149, P.P.C. Were stated.
3. ' Amended charge reads as under:- "That on or about 5-5-2002 at about 9-00 in the morning at the agricultural land situated in Deh Panwari, Taluka Khairpur, you duly armed with deadly weapons along with unknown persons formed unlawful assembly and thereby you have committed an offence punishable under sections 147, 148, 149, P.P.C. And within the cognizance of this Court.
4. ' I further charge you that on the above said time and place, you in the prosecution of your common object criminally trespassed into the agricultural land which belonged to complainant on the point of weapons and thereby committed an offence punishable under section 447, P.P.C. And within the cognizance of this Court."
5. ' An application under section 249-A, Cr.P.C. Was filed and it was contended that since no charge under Hudood Ordinance has been framed; therefore, it must be treated admitted that produce in question was right of the applicants and in view of such position and in view of the fact/that the applicants had their lawful share of the produce lying there, no offence under section 447, P.P.C.
6. Can be made out because there was no element of intimidation, insult or annoyance. This application was dismissed by learned Judicial Magistrate vide order dated 30-6-2007. This order was challenged in this Court. However, it was observed that the proper remedy was of a Revision Application under section 429, Cr.P.C.; consequently, Criminal Miscellaneous Application was withdrawn and the Revision was filed before Additional Sessions Judge. Learned Additional, Sessions Judge dismissed the Revision Application vide order dated 29-6-2009 and this order has been challenged in this Revision.
7. ' Contention of the learned counsel for the applicants was twofold. His submission was that since no charge under Hudood Ordinance has been framed; therefore, there cannot be any question of a criminal trespass particularly so because a perusal of complaint indicates that when the complainant reached there, he found the applicants trying to take away the produce of the land.
8. Learned counsel submitted that it meant that at the time when the applicants went to that place, the complainant was not there and since the applicants were taking away their own produce, no offence was made out. Learned counsel relied upon Kazi Taj Muhammad v. The State and another, PLD 1962 Karachi 330, Abdul Razzaq v. SHO, 2008 PCr.LJ 812, Miraj Khan N. Gui Ahmed, 2000 SCM R 122 and State v. Ashiq Ali Bhutto, 1993 SCM R 523.
9. ' Mr. Ghulam Shabir Shar, learned counsel for complainant, submitted that evidence is available on record and it cannot be discarded.. He relied upon Sikandar A. Kareem v. The State through Chairman, National Accountability Bureau, 2011 M LD 313 and Khairat Hussain y. Additional Sessions Judge, Sheikhupura, 2011 YLR 979. He, however, conceded that no application for amendment of charge has so far been filed.
10. ' Mr. Zulfiqar Ali Jatoi, learned D.P.-G., submitted that it is duty of the trial Court to frame charge and charge could always be amended; therefore, exclusion of any charge in respect of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 cannot be taken to mean that no such offence has been committed.
11. ' I have considered the submissions made by the learned counsel and have also gone through the record.
12. ' Sections 441 and 447, P.P.C. May be reproduced and they read as under:--
441. Criminal trespass. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".
447. Punishment for criminal trespass. Whoever commits' criminal trespass shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to one thousand five hundred rupees, or with both.
13. ' In Kazi Taj Muhammad's case (supra) complainant Imdad had entered into partnership with Muhammad Saeed Shah to carry on business of motor parts. Muhammad Saeed Shah was prosecuted for offence under section 302, P.P.C and was in Jail at the time when complaint against the applicant was filed. Muhammad Saeed Shah had executed general power-of-attorney in favour of the applicant in respect of the business. It was observed as under:--
4. The main question for consideration is whether on the facts admitted by the prosecution the case for criminal trespass has been made out. After going through the record of this case I am of the view that no offence for criminal trespass has been made out. Before I proceed to deal with the prosecution evidence I think it useful to state as to what the law is in respect of the necessary intention under section 441 of the Penal Code. In this connection Mr. Muhammad Hayat Junejo has cited certain cases. The most useful case to my mind is that of the Privy Council: Sunnasamy Selvanayagam v. The King (62 Cr.LJ 173). In this case some person was being prosecuted for criminal trespass under the Penal Code of Ceylon. The provisions of the Ceylon Penal Code and that of the Pakistan Penal Code appear on a perusal of the observations of their Lordships of the Privy Council to be the same. The relevant observation runs as under: "Entry upon land, made under a bona fide claim of right, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent or at any rate constituted no more than a subsidiary intent.
14. ' The Privy Council case was followed in the case of Morotrao Ganpatrai Jadhav v. The State, and another (AIR 1960 Bom. 481). Mr. Junejo also relied, in support of his contention that unless the requisite intention under section 441, Penal Code, is prima facie made out no charge for criminal trespass is maintainable, on the Full Bench case of S. Vullappa and others v. B. Bheea Row (ILR 41 Mad. 156) and Emperor v. Madan Mandal and others (ILR 41 Cal. 662). It was observed in the last mentioned Calcutta case that "criminal trespass depends on the intention of the offender and not, upon the nature of the act and when the man's intention is to save his family and property from imminent destruction it cannot be said that because he commits civil trespass on his neighbour's land and cuts a portion of the bund belonging to his neighbour which he ordinarily would not be justified in doing, he is guilty of any criminal offence."
15. ' In Abdul Razzaq's case (supra) it was observed as under:- "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 shovel that a 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.
16. The State reported as 1983 PCr.LJ 42."
17. In the present case, it is admitted in the complaint that the applicants were given land in question on lease basis. In the charge, framed by the Court below, there is no offence under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979; therefore, it is clear that the applicants were present on the land for the sake of taking away their own share of produce.
18. Whether the applicants were entitled to it or not is a secondary question because in a case for criminal trespass, the allegation has to be that trespass was with the intention of intimidating, insulting or annoying such person or with intention to commit offence.
19. ' In Malik Muhammad Zamir v. Shamim Akhtar, 2006 PCr.LJ 539, it was observed as under:-- "8. The prosecution in order to establish the offence of 'criminal trespass' must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent or at any rate constituted not more than a subsidiary intent. Entry upon land made under a bona fide claim, however, ill-founded in law the claim may be; does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant. Reference in this context can be made to the cases of Takri Moosa Khan v. State 1998 M LD 1838, Bhagwan Din v. Emperor AIR 1918 All.
20. 365, Kakayan v. Lee Like AIR 1936 Rang. 133 and Ghulam Ahmad v. Emperor AIR 1938 Lah.
21. 848."
22. Since no element of intimidation, annoyance or insulting any person is alleged in the complaint, no case under section 447, P.P.C. Is, prima facie, made out and it has been held by the Supreme Court in State through Secretary Ministry of Interior v. Ashiq Ali Bhutto, 1993 SCM R 523 and in Miraj Khan's case (supra) that if the continuation of trial proceedings would be an exercise of futility, wastage of time and abuse of process of Court, then it would be in the interest of justice to quash proceedings.
23. Result of the above discussion is that this Criminal Miscellaneous Application is allowed; the order dated 30-6-2007 passed by the trial. Court and the impugned order dated 29-6-2009 passed by the Appellate Court are set aside; application under section 249-A, Cr.P.C. Filed by the present applicants, is allowed; proceedings are quashed and the applicants are acquitted.