1. ' By this miscellaneous application, the applicants seek quashment of proceedings of Case No,45 of 1995 pending in the Court of Judicial Magistrate, Tando Muhammad Khan under section 406/34, P.P.C. Arising out of F.I.R. No,33 of 1995 registered against them at Bulri Shah Karim on 2-5-1995 at 23-45 hours lodged by the complainant Saleh Muhammad son of Jalal Jat. The F.I.R. Reads as under:-- "Report is that I am Zamindar. My land is situated in Deh Abdo Mehando. Abdullah son of Allah Dino Jat is the Hari of this land and there are other Haris also. Abdullah has been given 5-1/2 acres for harap and in its half portion, sugarcane has been cultivated and in other half portion wheat had been cultivated. Presently the wheat was ready which was collected at one place. On 3-5-1995, thrasher was to be installed. At about 8-00 p.m. Khuda Bux son of Ahmed Jat and Muhammad Khan son of Gul Muhammad Jat came to-me who informed that Abdullah son of Allah Dino Jat, (2)
2. Manthar son of Abdullah, (3) Uris son of Mohabat, (4) Vikio son of Ibrahim Jat, (5) Akbar son of Vikio Jat within their sight took away the entire harvested wheat in the bullock cart towards the house of Abdullah. Manthar son of Abdullah was armed with double-barrel gun. On our asking Abdullah told that there were dues against the Zamindar who was not paying the same, he was taking away the entire wheat. On this information I came to the land alongwith the above witnesses, where I saw that the wheat kept was not there. Then I went to the village of Hari Abdullah and saw that the wheat was lying in the heap adjacent to the house of Abdullah. I enquired from Abdullah who told that dues of last year's crop were against you, which you have not paid to him. Now I have taken away the crop, you do, whatever you want to do. Now I appear and report that Abdullah son of Allah Dino Jat with the help of Manthar son of Abdullah Jat, Uris son of Mohabat Jat, Vikio son of Ibrahim and Akbar son of Vikio Jat, with bad intention, committing breach of trust, have taken away the harvested wheat. I am the complainant. Justice be done."
3. ' The applicants-have been challaned in the Court of Judicial Magistrate, Tando Muhammad Khan to face trial under section 406/34, P.P.C.
4. ' The applicants moved application under section 249-A, Cr.P.C. In the trial Court on 24-7-1995, which has been rejected by the trial Court by the order, dated 16-8-1995.
5. ' The applicants have challenged the proceedings of the aforesaid case in this Court under section 561-A, Cr.P.C.
6. ' I have heard Mr. Syed Madad Ali Shah, learned counsel appearing for the applicants and Mr. Mukhtiar Ahmed Khanzada, learned counsel for the State. I have also gone through the contents of F.I.R., application under section 249-A, Cr.P.C. And the order passed by the learned trial Court rejecting the application. I have also gone through the record and proceedings of the case.
7. ' Mr. Syed Madad Ali Shah, learned counsel for the applicants has submitted that there being no allegations of entrustment of the alleged property to the applicants as required under section 405, P.P.C. No offence under section 406, P.P.C. Has been made out against them. The learned counsel submits that as per F.I.R. There is dispute over Zamindari share between the complainant and the applicant Abdullah, which could be decided only by the Tenancy Tribunal constituted under Sindh Tenancy Act, 1950 and the learned trial Court has no jurisdiction. The learned counsel has relied upon the provisions of section 28 of Sindh Tenancy Act, 1950. The learned counsel further argues that as per F.1.R. There being dispute between a landlord and Hari over taking away the produce, even no case of theft punishable under section 379, P.P.C. Will be made out against them. The learned counsel submits that on the material available on record and the allegations contained in the F.I.R. There will be no conviction of the applicants and continuation of proceedings against them will amount to abuse of process of law.
8. ' In support of his arguments, the learned counsel has relied upon the decisions reported in 1981 CLC 1303, 1991 SCM R 244, PLD 1968 Dacca 678 and 1997 PCr.LJ 1782.
9. ' The learned counsel for State has raised no objection and conceded to the quashment of proceedings on the grounds that section 406, P.P.C. Is not attracted to the facts of the case and that there is no possibility of the conviction of the applicants.
10. ' I have considered the respective submissions of the learned counsel for the parties. I have also considered the case-law cited at bar.
11. The admitted position as per F.I.R. Is that the complainant claims to be the landlord and applicant Abdullah to be his Hari. The dispute between the parties is over Zamindari share of the produce, which is covered by section 28 of Sindh Tenancy Act, 1950.
12. In the case of Hakim v. Karam Khan and others reported in 1981 CLC 1303, Mr. Justice Zafar Hussain Mirza (as his lordship then was) held in similar situation at page 1307: "The case of the respondent No,1 is that the appellant is his tenant (Hari) and has failed to give him the due share of the produce for the relevant period. Clearly, therefore, the dispute was of the nature contemplated under the Sindh Tenancy Act, 1950 and as such was outside the jurisdiction of the Civil Court. The Civil Court had, therefore, no jurisdiction to pass a preliminary decree for accounts". Considering the above position of law I am of the view that the dispute between parties over Zamindari share could have been resolved only by the Tenancy Tribunal and not by filing criminal proceedings against the applicants. Even the trial Court will have no jurisdiction and proceeding with the case by the trial Court will be exercised in futility.
13. ' Even on merits, there is no substance in the allegations as contained in the F.I.R. There is no entrustment of the alleged property, as such, ingredients of section 405, P.P.C. Are not attracted.
14. ' In the case of Abdul Rehman v. The State, reported in 1991 SCM R 244, it was held by Supreme Court that unless the entrustment is proved, the question of misappropriation did not arise, the accused cannot be convicted under section 406, P.P.C. On the presumptions.
15. ' The contentions of the learned counsel for applicants that the even on the allegations as made in the F.I.R. There will be no case of theft punishable under section 379, P.P.C. Has force.
16. ' In Fakahr-ul-Islam and others v. State PLD 1968 Dacca 678 (D.B.) it was held that persons already in occupation, cultivating and enjoying land, whether with or without title cannot be charged of offences under sections 447 and 379, P.P.C. For removing produce of such land. The proceedings in the reported case were ordered to be quashed.
17. ' In the recent case of Ghulam Hussain v. The State reported in 1997 PCr.LJ 1782, this Court held that "if the case against the applicant is allowed to go to the trial, the same cannot result in conviction; hence the ends of justice in such case require that such proceedings should be quashed". In the present case also, there will be no possibility of the conviction of the applicants, if the case is allowed to go to the trial.
18. Considering all aspects of the case, contents of F.I.R., and the case-law discussed above, I am of the view that there will be no possibility of the conviction of the applicants and that proceedings against them, if allowed to continue, the same will amount to abuse of process of the Court.
19. ' Upshot of the above discussion is that the Criminal Miscellaneous Application No,206 of 1995 is allowed and the proceedings pending against the applicants in the trial Court are hereby quashed.
20. They are on bail and their bail bonds stand discharged.