This petition under section 561-A, Cr.P.C. is filed by the petitioners for the quashment of the proceedings pending in the Court of Ch. Muhammad Ilyas, learned Judicial Magistrate, Nankana Sahib, District Sheikhupura initiated upon F.I.R. No,333 of 1994 under section 440/447/148/149, P.P.C. in a case registered at Police Station Mangtanwla, District Shiekhupura at the report of Nosherwan son of Jalal i,e,, respondent No, 2.
2. It is contended in the petition that the petitioner namely Rehman is bona fide purchaser of the land in question since 30-11-1993 from Mst. Rani for a consideration of Rs,1,60,000 vide Mutation No,245 sanctioned in his favour on the same date. He was allegedly in possession of the aforesaid land but respondent No,2 threatened his possession, whereupon, a suit for declaration was instituted against one Mohabbat and the aforesaid Nosherwan on 24-11-1994. Respondent No,2 appeared in that suit on 4-12-1994 and tried to take forcible possession of the suit land on 6-12- 1994 for which the petitioner approached the police but his version was not recorded. Hence, the police with mala fide intention registered a case against him and others vide the impugned F.I.R. for an occurrence which purportedly had taken place on 23-11-1994. The F.I.R. was registered on 6- 12-1994. The petitioner, thereupon, moved a writ petition in the High Court in which an order was made that the counter-version of the petitioner be also recorded. Hence the counter-version was recorded but the petitioner having not been satisfied with the investigation conducted by the police, again moved the High Court for transfer of the investigation upon which the investigation was transferred to another Investigating Officer i,e, to the Deputy Superintendent of Police. The counter-version given by the petitioner was found false during the police investigation whereupon, he alongwith others was sent up for trial to the Court concerned.
3. In the F.I.R. filed by Nosherwan i,e, respondent No,2, it was alleged that on 23-11-1994 while the petitioner namely Rehman armed with Sota, his son Hadayet armed with 12 bore gun and another son namely Riaz armed with Sota whereas, Ashraf armed with hatchet came to his land on a tractor, driven by Wilayet son of Rehman. They ploughed the tractor over the wheat crop cultivated by the complainant in his land and destroyed the same and got its forcible possession. They also resorted to ineffective firing and threatened that if anybody tried to intervene, he shall be shot dead. The occurrence was seen by Mohabbat and Ameer Ali. Some efforts were made for compromise between the parties which allegedly delayed the filing of F.I.R.
4. It is contended by the learned counsel for the petitioners that according to revenue record, the petitioner is in possession of disputed land, being its bona fide purchaser for value. In this regard, reference was made to Mutation No,245 (Annexure "D"), copy of Registrar Girdawari for 24-10-1993 to 24-10-1994 (Annexure "E"), another extract from Khasra Girdawari from Kharif, 1993 to Rabi, 1995 (Annexure "F") and a petition moved by the petitioner before the Tehsildar for the verification of his possession over the land in question. That application alongwith orders of the Revenue Officer was placed on record as Annexure 'F-1'. A copy of the civil suit (Annexure "C") and written statement filed by the respondents was brought on record as Annexure "H" to show that respondent No,2 had appeared in the Court on 4-12-1994 and thereafter, tried to dispossess the petitioner on 6-12-1994.
5. In the light of above documents, it was contended that the registration of the case was mala fide and amounted to the abuse of legal process. It was further contended that the proceedings before the learned Magistrate were not good in the eye of law as those amounted to the abuse of process.
Reliance was placed on 1994 PCL LI 1603 (Lahore) and 1994 PCrLJ 67 (Karachi),
6. Learned counsel for respondent No,2 contended that the petitioner had already unsuccessfully availed the legal remedy under section 249-A, CLP,C, in the Court below and hence, he could not file a petition for quashment without exhausting the other remedy such as revision against the order, whereby, his petition under section 249-A, Cr,P,C. was dismissed. Secondly, it was contended that the authorities cited above have no analogy with the case in hand because in this case, the question of possession remains genuinely in dispute and the question of dispossession or trespass is to be determined at the trial after examining the evidence. The complaint case filed by the present petitioner namely Rehman is also pending adjudication and hence, there being two versions regarding the same occurrence, it cannot be readily said that the ease of respondent No,2 is ,based on mala fide or that it amounted to the abuse of process of Court, In this regard, it was contended that possession of the respondent/complainant was proved through, the evidence collected by the prosecution for which a list of witnesses had already been attached and without examining them, it cannot be said that the ease was false or mala fide.
7. Learned State Counsel submitted that the question of possession has to be determined though it is clear that one of the petitioners namely Rehman had purchased the land as mentioned in Mutation No,245, The identification of the land is yet to be made which would be possible only during the examination of the witnesses at the trial.
8. I have considered the foregoing submissions and find that there is a real controversy between the panics which needs judicial scrutiny at the trial, even reference to the documents produced by the petitioners such as copies of Khasra Girdawari (Annexures 'E' and 'F will show that Nosherwan son of Mal, a co-sharer was in cultivating possession of the land in Khasra No,20/9/10 on 24.10-1973.
The mutation of ownership in favour of Rehman wu admittedly sanctioned on 30-11-1993 which means that the transaction of sale took place after the aforesaid date i,e,, 24-10-1993, Hence without prejudicing the merits of the case or trial before the learned Court below, it is sufficient to observe that there is a genuine controversy regarding the possession the offence of trespass as alleged in the F.I.R., which can only be settled through a regular trial after examining, the evidence of the prosecution and also the evidence in defence, if any. It may also be pointed out that Rehman petitioner had brought a separate complaint containing his cross-version which is also awaiting trial and hence, it would be too early to say that the present case registered vide F.I.R. No,333 of 1994 was either misconceived or amounted to the abuse of process of Court.
9. The petition being meritless is dismissed.