These two connected Criminal Miscellaneous Applications Nos. 73 and 74 of 1979 filed under section 561-A, Cr. P. C. Involve common facts and law and therefore are disposed of by this common judgment.
2. The facts giving rise to the two applications briefly stated are that Muhammad Hassan and others residents of Soomar village, Deb Mouch Taluka and District Karachi, the co-villagers of the present applicants, filed a Suit No. 3740/78 on 24/12/1978 for declaration and injunction in the Court of Senior Civil Judge, Karachi. Their- case was that they were the owners of about 100 acres of land in Deb Mouch. They claimed that they were descendants of Soomar Gado and were living in the village of the same names, which was situated in that land since their ancestors and that they had acquired the title over the land by way of adverse possession since they were in exclusive and physical possession of it. They had resisted the previous attempts of the Government to interfere with their possession and were allowed to continue with the possession of the land. However, recently the Government through the Deputy Commissioner and Assistant Commis--sioner had issued illegal orders of allotment and grant of that land to the defendants is the suit, namely Muhammad Abdullah, Muhammad Amin and Imdad who were taking steps to demolish their houses and wanted to take over the possession of their land. According to them they were the owners of the land and the orders of allotment made by the Government in favour of the above defendants in the suit were illegal and void and prayed for permanent injunction restraining the defendants from the interfering with their possession. Alongwith the suit they also moved an application for injunction under Order XXXIX, rules 1 and 2, C. P. C. On which the learned Civil Judge ordered status quo on 26-12-1978 against the defendants Muhammad Abdullah. Muhammad Amin and Imdad. However the learned Civil Judge vacated the- order of status quo on 24-2-1979 which decision was maintained by the learned District Judge in appeal and by the High Court in revision.
3. On 1-1-1979 at about 11-30 a.m. Muhammad Amin son of Haji Ayub the defendant in the civil suit lodged the first information report No. 1 of 1979 at police station Baldia District Karachi to the effect that he was granted lease of 50 acres of the disputed land near Mouch village by the orders of the Deputy Commissioner and that . He had taken possession of it. He stated therein that on 30-12-1978 at 11-30 a.m. He along with driver Isas, Iqbal, and Ali Ahmed, Hamidullah went to see the land where he saw Aziz, Abdul Ghani and Yakub digging stones out of some portion of the land. He asked them to stop but they did not listen and therefore finding that the applicants had illegally trespassed on the land, he lodged the report under section 447 read with 34, P. P. C.
4. Again on 1-1-1979 at 5-30 p.m. Gul Muhammad son of Allah Bachayo, Supervising Tapedar working in the Office of the Assistant Commis--sioner lodged First Information Report No. 2 of 1979 at Police Station Baldia District Karachi to the effect that he learnt from Tapedar Ali Ahmed that the applicants Abdul Ghani and Muhammad Yaqub were carrying out digging in the land in dispute near the main road for the purpose of construction work. On verification from the witnesses, he reported the incident to the Deputy Commissioner West who orally directed him to report at the concerned police station. He therefore lodged the first information report above-mentioned against the applicants Abdul Ghani and Muhammad Yakub for offence as under section 447 read with 34 P. P. C. Alleging that the applicants had illegally trespassed on the land in dispute.
5. It is alleged that in the two cases above-mentioned the Investigating Police of Baldia Police Station while investigating the offences declined to accept bail of the applicants though the offences alleged were bailable. The court of the learned A. C. M. Having jurisdiction avoided to accept the sureties and preferred to hold an inquiry under section 202, Cr. P. C. As if the proceedings were for prevention of offences under Chapter VIII of the Criminal Procedure Code.
However, ultimately the court issued writ of release on 6-1-19 79 when the applicants were not released by the Jail authorities on the ground that they were detained under section 14 of the Sind Crime Control Act. 1975 with effect from 3-1-1979. In the proceedings under section 14 of the Sind Crime Control Act, 1975 the same type of allegations of habitually occupying Government and Private land and selling the same to inno--cent persons were made against the applicants and that a specific mention of the two cases above-'mentioned initiated by filing F. I. R. Nos. 1 and 2 of 1979 under sections 447 read with 34, P. P. C. Was made in the proceedings. Constitutional Petition No. D-32 of 1979 was filad challenging the proceedings initiated under section 14 of the Sind Crime Control Act 1975, and the High Court by its judgment dated 10-4-1979 quashed the proceedings and allowed the petition.
6. Mr. Sadiqally Khoja, the learned counsel for the applicants has mainly contended that the offence alleged against the applicants would not amount to criminal trespass and has therefore prayed for quashment of the said proceedings in the two above-mentioned cases filed against the applicants under section 447 read with 34, P. P. C. With the background stated above, there seems to be no dispute that the present applicants are co-villagers of Muhammad Hassan and others residents of Soomar Village, Deh Mouch who have filed Suit No. 3740 of 1978 for the reliefs above- mentioned. There also seems to be no dispute that the two prosecutions filed against the applicants which are -the subject-matter of these two applications relate to a portion of the same land which is the subject-matter of the suit above--mentioned. Admittedly temporary injunction has been subsequently vacated but the suit itself is still pending in the Court of the learned Civil Judge. It is also clear that on the dates the two incidents out of which the two F. I. R. Nos. 1 and 2 of 1979 of Baldia Poilce Station arise allegedly took place when the orders of the status quo passed by the learned civil Court in which co-villagers of the applicants have claimed declaration to the effect that they are the owners of the disputed land are in its peaceful possession and cannot be disturbed by the respondent Muhammad Amin and other co--defendants in a suit unless in due course of law. The title of respondents with regard to the disputed land, therefore, is clearly in contest in the civil litigation and the civil Court alone, prima facie, has to decide the respective claims over the land in dispute.
7. Mr. Sadiqally Khoja, the learned counsel for the applicants has contended that a mere digging of earth by the applicants who are the residents of the adjoining village, from the land the claim over which is in dispute, would not amount to criminal trespass within the meaning of section 447, Cr. P.
C. And that the continuance of such proceedings would amount to undue harassment to the applicants and is clear abuse of process of the Court, within the meaning of section 561-A, Cr. P. C.
To constitute an offence of criminal trespass under section 447, Cr. P. C. It is necessary that either forcible possession should have been obtained, or the intention should be to cause annoyance to any. Person. In the present case one does not know as to when the criminal trespass was alleged committed on the land in dispute. The allegations are only with regard to the digging of earth by the applicants from the adjoining land and by no stretch of imagina--tion, in the circumstances of the present case, it would amount to criminal trespass. Moreover the possession of the land on which the criminal trespass is allegedly committed is still under dispute and is subject-matter of a civil litigation, and that it cannot be said to be in exclusive possession of respondent Muhammad Amin or any body else till their claim, with regard to their possession is finally established. In any case, in the circumstances of the present case the possession if at all, appears to have been taken . In absence of the respondent Muhammad Amin and others, when their claim over the land was not even in sight as they admittedly were granted land by allotment very recently. The possession taken was also in a peaceful manner as it appears, as the land appears to have been lying fallow for a long number of years when the applicants and other co-villagers appear to have been using it for various purposes. 'It is therefore, clear in the circum--stances of the present case and in the light of the back ground already stated above, that the applicants and other co-villagers took peaceful possession of the land without the consent of the respondent Muhammad Amin and others. Taking of peaceful possession of immovable property without the consent of the person even in its possession would not amount to criminal trespass, It would only amount to civil trespass and would not call for the application of section 447, P. P. C.
Reliance in that respect has been placed on the decision in the case of Badar Din v. The State and another 1977 P Cr. L J 89,Messrs Qalb Shah and Huda, the learned counsel appearing for the respondents have not been able successfully to meet with the contentions raised on behalf o the applicants in that respect. Consequently, it would be justified to say A conclusively without any manner of doubt that the applicants are innocent and that in any view of the matter their conviction is impossible. To allow such proceedings to continue would result in undue harassment to them and would clearly amount to abuse of the process of the Court.
8. In the result, the proceedings against the applicants are quashed under section 561-A, Cr. P. C.
And the applications are allowed accordingly.