This is an application under section 561-A of the Code of' Criminal Procedure by Yaqub Khan and Muhammad Ismail who are being proceeded against under section 379 of the Pakistan Penal Code on the basis of a report made against them on the 11th of June 1968 by one Azizur Rehman alleging that on the 11th of May 1968 he had been appointed a superdar for the wheat crop of the land in dispute between the present petitioners, and the new allottee, who is also named Yaqub, and that in pursuance of this appointment the wheat produce was handed over to his custody, but it had been taken away on the night of the 10th and 11th of June 1968 by the to. Petitioners.
2. It appears that no immediate action was taken by the police officer concerned on this report and that the matter remained pending until the superdar Azizur Rehman filed another application on the 12th of November, 1968 alleging that the petitioners had similarly removed the cotton crop. After a preliminary examination of the allegations an order was made by the S. D. M., on the 13th of January, 1969, that the case may be registered and investigated.
3. The to petitioners filed to writ petitions in the High Court, namely, Nos. 698/R and 755/R of 1968, in both of which orders regarding maintenance of status quo were passed. In the first mentioned case this order was made on the 30th of July 1968, and in the second on the 8th of August 1968.
Since then the petitioners have been in possession of the land in dispute, and the matter is now once again before the Chief Settlement Commissioner or his delegate under sections 10 and 11 of the Displaced Persons (Land Settlement) Act, 1958 to determine the question whether the petitioner Yaqub had indeed acquired excess land or not.
4. It is submitted by Mr. Saeedur Rehman Farrukh, the learned counsel appearing for the petitioners, that the crops having been sown by the petitioners, they were entitled to harvest the same and there was no power vesting in the Field Qanungo to A hand over the produce of the land to a superdar without there being regular proceedings in this behalf before a Revenue Court or a Revenue Officer authorised to at under the Punjab Tenancy Act. It is further submitted that the mere fact that the land in dispute was allotted to another person, namely, Muhammad Yaqub on the 19th of January 1968 did not make him the owner of the corn which had been sown by the petitioners. It is further contended that, in and, case, after the High Court had passed interim orders regarding the maintenance of status quo on the 30th of July and the 8th of August, 1968, the standing crop could not but belong to the petitioners and therefore no question of the commission of the theft would arise in respect of those crop.
5. No one has put in appearance for State. However, petition ; contested on behalf of the respondents who are represented by Raja Abdur Razzaq. The learned counsel has not been able to show me the authority-under which the Field Qanungo had acted in taking over the produce and entrusting it to superdar. It is, however, submitted that the superdar was appointed by the Tehsildar concerned. That may be so, but the appointment even by the Tehsildar would not confer may right on the superdar to take over, the crop unless it be shown that the Tehsildar was acting under the relevant provisions of law. This does not appear to be the case. In these circumstances, the action of the superdur in notionally taking over the crop was without the sanction of law and could not operate to deprive the petitioners of their ownership of the produce. Such being the case, of theft would arise on their part. The proceedings, therefore, cannot be allowed to continue as they would clearly amount to an abuse of the process of the Court.
6. It was submitted by Mr. Abdur Razzaq on behalf of the respondents that the case has not yet been put in Court, but I find that on the authority of The King-Emperor v. Khawaja Nazir Ahmad (217 I C 1) this Court has the power, in a suitable case, to quash the proceedings even at the investigation stage. I would accordingly accept this petition and quash the, proceedings initiated against the petitioners under section 379 of the Pakistan Penal Code at the instance of the respondents.