' The petitioners through this petition seek the quashment of F.I.R. No,502 dated 22-10-1999, under section 379, P.P.C. Registered at Police Station Tibba Sultan, Tehsil Mailsi, District Vehari.
2. Briefly stated the facts of the case are that the afore-referred F.I.R. Was registered on the complaint of Tehsildar Mailsi, alleging therein that in mauza Barkhurdar, Tehsil Mailsi, District Vehari, a land belonging to Mst. Mahtab Begum daughter of Dr. Muhammad Aslam Khan, caste Pathan is situated and vide Roznamcha Waqiati No,28, one Ghulam Hussain, Lumbardar was appointed as Receiver of the land and the Receiver on 1-10-1999 filed an application before Tehsildar that Muhammad Shafi son of Munir Muhammad, caste Jat But, Muhammad Akram son of Ashiq Muhammad caste Jat But and Muhammad Siddique son of Munir Muhammad caste Jat But forcibly picked up the cotton crops from the land of Mst. Mahtab Begum which was in his custody.
3. Learned counsel for the petitioners contended that the petitioners are tenants of the land and the Tehsildar/District Collector vide order dated 22-9-1999 appointed Ghulam Hussain as Receiver of the land. The said order was challenged before the A.C./Collector,Sub-Division, Mailsi, who vide order dated 13-10-1999 suspended the order of the Tehsildar, appointing Receiver. He further contended that mala fidely on 22-10-1999 after the suspension of the order in appeal, the Tehsildar has got registered a case under section 379/411, P.P.C.
4. Learned Assistant Advocate-General has vehemently opposed the arguments of the learned counsel for the petitioners.
5. I have heard both sides and perused the record. Section 17 of the Punjab Tenancy Act, 1887 has provided the appointment of referee for division or appraisement:-- "If either the landlord or the tenant neglects to attend, either personally or by agent, at the proper time for making the division or appraisement of the produce, or if there is a dispute about the division or appraisement, a Revenue Officer may, on the application of either party, appoint such person as he thinks fit to be a referee to divide or appraise the produce."
' From the plane reading of the aforesaid provision of law, that a referee or receiver can only be appointed for the division or appraisement of the produce between landlord and tenant. The property is not given in his custody or possession.
6. A copy of the 'Roznamcha Wagtau Patwan' has been produced wherein the petitioners Muhammad Shad and Muhammad Akram have been entered as tenants of the land.
7. A 'tenant' means a person who holds land under another person and is or, but for a special contract, would be liable to pay rent for that land to that other person, and "tenancy" means a parcel of land held by a tenant or landlord under one lease or one set of conditions. The tenant is already occupant, cultivating and enjoying the land without title and a person who is occupant as cultivator of the land cannot be charged of an offence under sections 379,447.411 P.P.C. The definition of theft according to the provision of section 378 PPC is "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," and Section 379 P.P.C.
Has provided that "whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
8. The tenants if takes or lifts the produce without payment of share of Batai to the landlord would not commit any offence as his action does not fall within the ambit of provision of section 378 P.P.C.. It is a settled principle of law that if the tenant fails to pay the Batat of the crops to the landlord he will resort to the remedy by filing of a suit under the Punjab Tenancy Act. For the recovery of crops or its price, in the Court of Assistant Collector, 1st Grade, or the Collector, as the case may be, It has been observed in case of Abdullha and 4 others v. State (1998 Pak C.L J 732) that dispute between the parties over Zamindari share which could be decided only by the Tenancy Tribunal constituted under the Punjab Tenancy Act and not by filing of criminal proceedings In this case, Salch Muhammad son of Jalal got recorded an FIR which 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 Han of this land and there are other Hans 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 Bakhsh son of Ahmed Jai. And Muhammad Khan son of Gul Muhammad Jat came to me who informed that Abdullah son of Allah Dino Jat, (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 1 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 Abdulah. 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."
' This F.I.R. Was challenged through a criminal miscellaneous under section 561-A, Cr.P.C. And the Hon'ble Judge of the High Court was pleased to quash the proceedings.
9, In case of Fakharul Islam and another v. State (PLD 1968 Dacca 678), The Division Bench of the Dacca High Court observed 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 even though proceedings under section .145, Cr.P.C. Have been started against them.
10. In another case of Ishaq Mia and others v. Abdul Malek (PLD 1958 Dacca 564), a Division Bench of the Dacca High Court held that no charge would lie under section 379, P.P.C. For taking paddy out of the possession of the complainant when he was debarred from entering upon the disputed land and exercising any act of possession in respect thereof.
11. From the mere reading of the F.I.R. Corroborated by the Report Roznamcha Waqiati. It is clear that the petitioners are the cultivators as tenants of the land and, therefore, no offence against them is made out from the contents of the F.I.R., Learned Law Officer has not been able to controvert, that if the petitioners were not the tenants of the land, then, what was their status.
12. In the instant case, the relationship of landlord and tenant between petitioner and Mst. Mahtab Begum etc. Exists. The petitioners were in possession over the suit land, they had sown the crops and harvested the same and if they have taken without payment of the share of Batai to the landlord they committed no penal offence.
13 In view of the above discussion, this criminal miscellaneous petition is accepted and the F.I.R.
No,502 of 1999 dated 22-10-1999 registered at Police Station Tibba Sultan, Tehsil Mailsi, District Vehari, under section 379, P.P.C., is hereby quashed.