1. The Petitioners seek quashment of proceedings in Criminal case under section 447, P. P. C. Pending in the Court of A. C. M. North Nazimabad, Karachi on the ground that the prosecution case, as stated in the F. I. R. And even on the evidence on record, does not disclose a case against them under section 447, P. P. C. And further that the application made by Petitioner No. 1 under section 249-A, Cr. P. C. Was dismissed on flimsy and irrelevant grounds, and therefore, the continuation of the proceedings in the Criminal Court would amount to abuse of the process of the Court.
2. The facts of the case briefly stated are that a plot of land measur--ing 200 square yards bearing No. A-218 in Block T situated in K. D. A. Scheme No. 2, Notth Nazimabad was allotted to Petitioner No. 2 by the Karachi Development Authority by allotment order dated 26th February, 195$. The possession order was issued by the aforesaid Authority on the same day in favour of Petitioner No. 2 and the letter with regard to acknowledgment of possession dated 4th November, 1970 was issued by the Authority acknowledging that petitioner No. 2 had paid to the Karachi Development Authority a sum of Rs. 750 being 50 per cent of the occupancy value in respect of 200 square yards of a little more or less, and he had entered upon in taking possession of the land. There is also letter of the Authority dated 26th January, 1963 addressed to Petitioner No. 2 approving the building plans for the plot and permit--ting him to carry out construction in accordance with the site plan for plot No. A/218, Block T, Scheme No. 2 aforesaid.
3. Mst. Zabida Banu, wife of petitioner No. 1 purchased the aforesaid plot from petitioner No. 2 for consideration of Rs. 14,000 by sale-deed dated 1st April, 1971.
4. It is further the case of petitioner No. 1 that he approached the K. D. A. For grant, of certificate confirming the title of petitioner No. 2 and the K. D. A. Vie their letter No. K. D.A_./LS---I/ A- 218/T/72/4975, dated 7th September, 1973 granted the certificate certifying that plot No A-218 Block T, Scheme No. 2 stood allotted to Muhammad Swaleen Qureshi vide allotment Order No. 1965 gated 26th February, 1958 and acknowledg--ment of possession dated 4th November, 1970.
5. It is the further case of the` petitioners that on or about 5th April, 1975 one Mst. Kaniz Fatima informed petitioner No. 1 that she had pur--chased the aforesaid plot and asked him to vacate the house on the aforesaid plot. Apprehending serious danger of interference in the peaceful possession of the plot Mst. Zahida Bann wife of petitioner No. 1 filed Suit No. 2113/1979 and alongwith it an application under Order XXXIX. Rules 1 and2, C. P. C. -in the Court of XV l 11th Civil Judge, Karachi who was pleased to order maintenance of status quo which was served on 31st May, 1979 and Mr. Amanullah Qadri, Advocate filed power of attorney on behalf of Mst. Kaniz Fatima. It is further the case of the petitioners that on 4th July, 1979, that is about 1J months after the institution of the Suit and service of injunction order. Mst. Kaniz Fatima filed Suit No. 2607/1979 under section 9 of the Specific Relief Act for possession of the aforesaid plot. However, on 21st November, 1979 the aforesaid suit was dismissed by order of that date Msr. Kaniz Fatima's application for review was also dismissed on 27th March, 1980 against which decision, Civil Appeal No. 67/80 and Civil Revision No. 66/80 were filed in the Court of the Second Additional District Judge, Karachi. The petitioners allege that Captain Moinuddin Qureshi of Pakistan Army Headquarters, who was also A. S. M. L. A., East Karachi made an application to the Sub-Martial Law Administrator on or about 13th June, 1979 complaining that his uncle had died about 5 years earlier and since then he was looking after his aunt Mst. Kaniz Fatima and her children. He had purchased a plot for her in her name 2J years before the making of the com--plaint and that plot was No. A-218, Block T, Nazimabad North Karachi, it was further complained by him that after his posting at Karachi by transfer from Baluchistan he observed that since the last three months petitioner No. 1 raised a temporary construction on the aforesaid plot which he was claiming to have purchased, he therefore, sought help for getting the area of the plot vacated. It is further the case of the petitioners that the aforesaid application was marked to the S. H. O. North Nazimabad Police Station, Karachi who on 26th June, 1979 registered it as F. I. R. No. 167/1979. The charge-sheet was sent up to A. C. M. North Nazimabad, Karachi and on 15th May, 1980 the aforesaid Magistrate framed charge under section 447 read with section 34. P. P. C. Against the petitioners, after issuing process against them.
6. Petitioner No. I was released on bail while petitioner No. 2 was reported as absconding.
7. As already stated, petitioner No. I had filed an application under section 249-A, Cr. P. C. On 21st May, 1980 which was rejected by order of the learned Magistrate on 6th November, 1980 by a short order stating that there were still several prosecution witnesses to be examined and the application was premature.
8. I have heard Mr. Abdul Latif Channa, the learned counsel for the petitioners and Chaudbry Nazeer Ahmad for the State. It has been con--tended by Mr. Abdul Latif Channa that even according to the F. I. R. And the evidence of Captain. Moinuddin Qureshi it is apparent from the face of the record that the facts alleged do not constitute the offence under section 447. P. P. C. He has further contended that the utmost that can be said about the case is that there is a dispute over plot of land which is of a civil nature and in respect of which there was a subsisting interim order of the Civil Court with regard to possession. It is, therefore, further contended that the proceedings in the Criminal Court under section 447, P. 1': C. Acre an abuse of the process of the Court.
9. The two accused are alleged to have committed criminal trespass punishable under section 447, P.
10. P, C, 'Criminal trespass' has been defined to section 441, I'. P. C. 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."
11. It is, therefore, quite clear from the aforesaid definition that it is not a mere civil trespass by way of taking possession of property with out the consent of the person in possession which would amount to criminal trespass and that it is a condition precedent to constitute the offence of criminal trespass that it should be with intent to commit an A offence or to intimidate, insult or to annoy such person in possession of such property. Looking to the wording, mere constructive possession would not be sufficient as a person in absentia cannot be said to be intimidated, insulted or annoyed and such person had to be named by the prosecution in order to sustain the charge of criminal trespass.
12. A persual of the deposition of Capt. Moinuddin Qureshi and the F. I. R. Would show that he had come to know that somebody had encroached and occupied the plot in his absence. Even in the charge framed by learned Magistrate the allegation is that three months prior to the lodging of F. I.
13. R, trespass had been committed on the plot. There is neither the name of the person in possession nor specific mention as to the intention with which the alleged criminal trespass was committed.
14. Thus there is no allegation or accusation which, if allowed to go to trial, is even remotely likely to end up in conviction. In the decision of the Dacca High Court in Abdul Ghafoor alias Kalia and 8 others v. The State (1968 P Cr. L J 972). Where the charge was under section 447, as in the present case, it was observed that a charge under that section should specifically state the intent with which the entry is made, whether intent is to commit an offence or to intimidate, insult or annoy the person in possession of the property, and that the name of that person should also be stated. It was further observed as under : - "Another noticeable fact is that the complainant claims to have been in constructive possession of the land and according to the prosecution case, the occurrence took place in his absence. This being so, it cannot be said by any stretch of imagination that the intent of the petitioners was to intimidate, insult or annoy the complainant nor is there- any material to indicate that the petitioners, intent was to commit an offence The trial Court has also given no finding as to the intent of the petitioner or that such a finding is essential. All that the Magistrate stated is that there is ample and sufficient evidence in support of the claim by the prosecution that complainant was in possession of the land and also that the accused persons trespassed upon the land and erected two buts on it. That is not sufficient for convicting the accused under section 447 without recording a finding as to `intent'." in Criminal Appeals Muhammad Ashraf v. Faiz Ali and 11 others and Zafar Ali and 5 others v. The State (PLD 1975 SC 556), the Supreme Court in the deci--sion reported inter alia observed that the expression "criminal trespass" was used in contradistinction with civil trespass, and that encroachment by deceased over a strip of land forming part of disputed field being in his settled possession was a civil trespass, and further that a person in peaceful possession can maintain his existing possession even by use of force, even though not having lawful right to possess. In the Lahore High Court decision in Badurddin v. The State and another (1977 P Cr. L J 89) it was inter alia observed that taking of peaceful possession of immovable property without the consent of the person in possession does not amount to a criminal trespass, and that so far as the offence punishable under section 448, P. P. C. Is concerned, it is necessary that either forcible possession should have been obtained or the intention should be to cause annoyance to any person. From the record it is obvious that the petitioners bad in possession documents about allotment, possession of the plot and even approval of Authorities sanctioning the plan for construction etc, which are of much earlier date than the ones submitted by the com--plainant in the case. It is also apparent that the dispute is one of civil nature as to possession of immoveable property. In Shah Muhammad v. Haq Nawaz and another (PLD 1970 SC 470) the ambit of jurisdiction of a Criminal Court even to attach property under section 145 (2) of the Criminal Procedure Code was considered and the following observations were made :- "The provisions of the Codes set out above have a material bearing on the question whether a Magistrate can, under section 145 of the Criminal Procedure Code, act in violation of a decree or the terms of an order passed by a Civil Court during the trial of a suit. It becomes apparent at once that the proceedings initiated under section 145, Cr. P. C. Are subordinate to a breach of peace arising out of a dispute concerning 'land' or `water'. These proceedings though concerning the subject-matter of dispute between the con--tending parties, do not concern themselves with the adjudication of their rights in the property. The resolution of the dispute lies exclusively in the realm of a Civil Court. The orders passed by a Magistrate for attachment of the subject-matter of dispute are therefore, of a transitory nature. That is why a Magistrate will not appoint a receiver if the property- in dispute is already in the possession of a Civil Court through a receiver appointed by it and the receiver appointed by a Magistrate must make over posses--sion to the receiver appointed by a Civil Court subsequently. Section 145 therefore, proceeds on the premises that the Magistrate will cease to deal with the possession of `land' or water' in dispute before him as soon as a civil Court is seized with the dispute and has passed a decree declaring the rights of the parties therein or has passed an order regulating possession of the subject---mater of the suit."
15. In the instant case, as already stated, there was a suit pending before a Civil Court in which on an application for interim injunction the order for maintenance of status quo had been passed. It was therefore, hardly a case in which the Criminal Court could even interfere with the possession in proceedings under section 145, Cr. P. C.
16. For the reasons already given, since the very. Ingredients of the offence for which the two petitioners are being tried have not bee made out even in the F. I. R. Or the deposition of the principal witness in the case, so useful purpose would be served if the proceedings are allowed to continue as the same would be an abuse of the process of the Court. The petition is, therefore allowed, and it is hereby ordered that the proceedings in the criminal case under section 447, P. P.
17. C. Pending in the Court of A. C. M. North Nazimabad, Karachi are hereby quashed. It is for the parties to have their dispute in respect of the property decided by the Civil Court which it appears is already seized of the matter.