' Through this Constitutional petition, k he petitioners pray that the registration of case vide F.I.R.
No,89/95, dated 22-7-1995, under section 379, P.P.C. At Police Station Chung and investigation in pursuance thereof, be declared to be without lawful authority and of no legal effect.
2. As per F.I.R. Lodged by Muhammad Tanvir respondent No,2, it is alleged that he is the owner of Messey Furgoson Tractor bearing Registration No,LE08679 (1976 Model). The said tractor was parked on his land in village Katar Bund. On 21-7-1995, the complainant went to his land to have a round and a person named Amir present there informed him that the petitioners had taken the tractor and at present the said tractor is lying with Abdul Majid petitioner, hence by registering a case of theft the tractor may be recovered.
3. It is contended by the learned counsel that there is civil litigation going on between the parties with respect to the inheritance of Muhammad Akram, who died on 2-4-1988. He submitted that said Muhammad Akram died issueless and the petitioners being his collaterals inherited his movable and immovable properties. Elaborating the facts, he submitted that Muhammad Akram deceased divorced his wife Mst. Maqsoodan Begum by giving notice to her on 7-6-1968, through the Chairman, Union Committee Ward No,14, (now 242), Shalamar Town, Lahore and after taking legal arbitration proceedings the Talaq became effective, as is apparent from Annexures "B" and "C". Prior to the marriage with Muhammad Akram, Mst. Maqsoodan Begum was married to one Hassan Din. In order to substantiate this fact, the petitioners have placed on record, the electoral roll showing the names of Mst. Maqsoodan Begum and her children. After and before the death of Muhammad Akrarn, deceased, Mst. Maqsoodan beguin obtain6d different liational Identity eiid8 as under:- Briber death, c4Mtihanitad,Akrani,0112.4?1988
(1) Maqsooda Begurn (as divorcee). No,267-33-023421
(2) -do- No,267-86-023421
(3) Muhammad Akram (shown as issueless) No,78-30-040993
(4) Mira Tanvir Beg son of Hassan Din. No,267-57-023422 After the death of Muhammad Akram on 2-4-1988
(1) Maqsuda Begum (shown as wife No,271-88-252264 of Muhammad Akram) dated 13-11-1988
(2) Muhammad Tanvir (shown as son of No,267-88-0234222 Muhammad Akram and former holder of NIC No,267-60-023422 and date of birth as 1957)
(3) Shagufta Parveen (shown as daughter No,267-88-023420 of Muhammad Akram) dated 27-9- 1988.
' Even Mst. Maqsuda Begum and Shagufta showing themselves as the wife and daughter, respectively of Hassan Din, purchased land in their names and got . Attested Mutation Nos.3542 and 4602, respectively, by the Revenue Officer, which proves that Hassan Din was the former husband of Mst. Maqsuda Begum and father of Shagufta. Even Mst. Shagufta contracted marriage with one Sabir Ali Shah on 3-3-1970, the averments in the writ petition, as Muhammad Akram died issueless on 2-4-1988, the following persons inherited his property:--
(1) Mian Mahmood Ashraf.
(2) Mian Mamoon Ashraf.
(3) Mian Maroof Ashraf sons of Muhammad Ashraf, and
(4) Mian Mahboob Alam son of Mian Muhammad Bashir.
' Mian Mahboob Alam died later on and the share was inherited by his following legal heirs:--
(I) Parveen Mahboob, widow.
(2) Saqib Mahboob, son.
(3) Yawar Mahboob, son.
(4) Yasar Mahboob, son.
' Mst. Maqsuda Begum alongwith Mst. Shagufta in order to grab the property of Muhammad Akram deceased filed a suit in March, 1989 and obtained a temporary injunction on 20-7-1989 from Syed Maruf Ahmad Ali, Civil Judge, Lahore. It is stated that Muhammad Akram deceased owned a Messey Fargoson Tractor, which is the subject-matter of the F.I.R., hence after his death, the petitioners became the owners of that tractor. In order to defeat the claim of the petitioners, respondent No,2 submitted a forged transfer letter in the name of Muhammad Akram deceased on 8-7-1995, before the Registering Authority and got the aforesaid tractor transferred in his name showing himself as the son of Muhammad Akram.
' In the meantime, Mian Mahmood Ashraf and others filed a suit for declaration to the effect that as Mian Muhammad Akram died issueless, they are the owners in possession of the property of the deceased. Mr. Alamgir Khan, learned Civil Judge vide his judgment and decree, dated 22-12-1988, decreed the suit. Mst. Maqsuda Begum and Shagufta Parveen, filed an application under section 12(2), C.P.C. Which was dismissed by Mr. Abid Hussain Qureshi, Civil Judge, Lahore, vide his judgment, dated 15-1-1996. The aforesaid two ladies then challenged the judgment and decree, dated 22-12-1988 and order, dated 15-1-1996, through revision petition before the appellate Court, on the ground that the judgment and decree, dated 22-12-1988, have been procured with collusion and fraud and obtained a stay order. The said revision petition is still pending.
' It is submitted by the learned counsel for the petitioners that in view of the factual position stated above, the petitioners being the owners of the property of Mian Muhammad Akram, claimed the possession of the tractor as bona fide owners, hence they have not committed any offence of theft under section 379, P.P.C. As defined under section 378, P.P.C. Certain documents which have been referred to above prove that Muhammad Tanvir respondent No,2, Mst. Maqsuda Begum and Shagufta Parveen later on procured certain fictitious identity cards to show their relationship with Muhammad Akram deceased with the sole object to grab his movable property and also agricultural land measuring about 200 Kanals in Lahore District valuing about crore of rupees.
Learned counsel submitted that if the petitioners geliamely believing themselves as the owners of the tractor in question took its possession on the basis of decree of the Civil Court la}, virtue of inheritance they have not committed any offence under section 379, P.P.C. The bona fide of the petitioners is sufficient defence against their prosecution under section 379, P.P.C. If these things are proved, then the matter becomes a civil nature and the police has no jurisdiction to register the case and investigate the same and that the tractor which has been illegally seized by the police from the possession of the petitioners may be given to them. Learned counsel has placed reliance on 1981 PCr.LJ 1259, 1982 PCr.LJ 726, 1992 PCr.LJ 1455 and 1994 PCr.LJ 1876, in order to assail the registration of the case as well as the investigation being conducted by the police.
5. The learned counsel for respondent No,2 submitted that no doubt civil litigation is pending between the parties with respect to the inheritance of late Mian Muhammad Akram, who died on 2-4-1988, but the petitioners had no legal justification or right to take away the tractor from the land of the respondent, particularly in view of the order, dated 16-7-1995, passed by the learned A.D.C.(G)/Collector, Lahore, with respect to Mutation No,325, 'dated 10-8-1988 of Mauza Katar Bund, Tehsil and District Lahore. In view of the said mutation the respondent was owner in possession of the land, hence he could lodge the F.I.R., which discloses the commission of a cognizable offence and the police was legally competent to investigate the case. He further submitted that two children, namely, Imran Baig and Shaishta were born out of the wedlock of Mst. Maqsuda Begum with Hassan Din, whereas respondent No,2 and Mst. Shagufta Parveen are from the wedlock of Mst.
Maqsuda withMian Muhammad Akram deceased. This fact is proved from the statement of Mr. Irfan Saeed, Advocate, which he made in an appeal against the order, dated 17-11-1984 in ejectment proceedings titled Mian Muhammad Akram v. Irshadullah and others pending before the learned Additional District Judge, Lahore. This statement was made on 3-11-1994. The claim of the petitioners that Mian Muhammad Akram died issueless is belied by this fact that Mst. Maqsuda had two children, namely respondent No,2 and Mst. Shagufta. Even land stood mutated in their names by the Revenue Authority and the decree dated 22-12-1988 procedure from the Civil Court is not binding on the respondent and others, as they were not made party in that suit.
' With regard to the transfer letter, dated 8-7-1995, on the basis of we the tractor in question was transferred in the name of respondent No,2 on 13-7-1995, learned counsel submitted that he does not place reliance on this transfer letter, as his client has got the said tractor on the basis of inheritance from his father.
' Lastly, learned counsel placed reliance on 1995 SCM R 1016, to contend that criminal case got registered by respondent No,2 relating to the same subject-matter could not be quashed altogether but proceedings could be stayed till the decision of the civil dispute.
6. The sole point which needs determination in this case is whether the alleged removal of the tractor from the land of respondent No,2 by the petitioners would constitute an offence under section 378, P.P.C. Or not. If the answer is in the negative, then the police could not register the case and enter into investigation. Before embarking upon this discussion it will be useful to reproduce the definition of theft as contained in section 378, P.P.C. Which reads:-- "378. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking is said to commit theft."
' In order to constitute the offence of theft, the following factors are essential:--
(1) Dishonest intention to take property.
(2) The property must be movable.
(3) It should be taken out of the possession of another person.
(4) It 'should be taken without the consent of that person.
(5) There must be some removal of the property in order to accomplish the taking of it.
The most important ingredient of the offence is "dishonest intention to take the property". If the property is removed from the custody of other person under the bona fide claim/discute then it does not constitute the offence under section 379, P.P.C. There is plethora of case-law on this point.
In Ravishankar v. Savailal (1925) 28 Bom. LR 89, it was laid down that ' where property is removed in the assertion of a contested claim of right, however, ill-founded that claim may be, the removal thereof does not constitute theft". Similarly in another case, reported as AIR 1941 P. 369, it was laid down "where civil suits were pending regarding a field and the accused who was in possession of the field, removed the crops grown on it, it was held that he could not be said to have any dishonest intention when he removed the crops and was not guilty of theft".
' In the present case, the petitioners Were in possession of decree, dated 22-12-1988 of the Civil Court, according to, which they were declared entitled to inherit the property of Muhammad Akram who died issueless. The said decree was later on confirmed vide judgment, dated 15-1-1996 in a petition under section 12(2), C.P.C., filed by the respondent on the ground that the decree dated 22- 12-1988, was obtained by the petitioner with collusion and fraud. In the presence of these two judgments of the Civil Court coupled with other facts, the removal of tractor if at all was, it was under a bona fide claim; hence it does not constitute the offence under section 379, P.P.C.
If no offence is committed, then the police under section 154, Cr.P.C. Has no power to register the case, as the registration of the case depends upon the alleged commission of offence. The petitioners allegedly removed the tractor under a bona fide claim of right on the basis of decisions of the Civil Court, hence the police was neither competent to record the F.I.R. Nor to enter into investigation thereafter. It appears the police in this case has transgressed its jurisdiction while recording the F.I.R. And later on investigating the case. The ease-law relied upon by the learned counsel for the respondent i,e, 1995 SCM R 1016, is not applicable to the facts of this case and is distinguishable, because in the presence of the judgments of the Civil Court, the registration of F.I.R.
Was open to serious legal objection and thus void.
6. In view of the above discussion, this petition is accepted and registration of the F.I.R. As well as the investigation under this F.I.R. Is declared to be without lawful authority and of no legal effect.
' Due to complicated questions of facts and law, the parties are left to bear their own costs.
7. Vide order, dated 11-10-1995, with the consent of the parties, the tractor was garaged with Mian Muhammad Rafi, Ex-M.P.A., Bighbanpura, Lahore. The said Mian Muhammad Rafi is directed to hand over the tractor to the petitioners provided they furnish security bond in the sum of Rs,50,000 (fifty thousand only) to the satisfaction of the Deputy Registrar (Judi.) of this Court that in case the civil litigation culminates in favour of respondent No,2, then they will adjust this amount with respect to the mesne profits of the property and the tractor shall be handed over to him.