' Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of F.I.R. No.267 of 2003, dated 21-9-2003 registered under section 379, P.P.C. At Police Station Sadar Mailsi, District Vehari on the written application of Tehsildar/AC-I, Mailsi.
2. The brief allegation in the F.I.R. Is that Muhammad Aslam petitioner and one Looney Khan were tenants under Haq Nawaz over the land situated in Mauza Shahpur Sani, who through his general attorney Haji Noor Muhammad moved an application before the Tehsildar for giving him the share of produce through appointment of Local Commission, whereupon interim stay was granted but in spite of that they had taken away the crop without giving share to the owner. Hence, the instant case was registered.
3. Learned counsel for the petitioner contends that if the petitioner had violated the order of the Court, he could be proceeded under the Contempt of Court Act, but provisions of section 378, P.P.C. - are not attracted to the facts of the present case as the petitioner admittedly was in possession of the said land as tenant and had sown the crop (wheat) which is alleged to have been stolen by him. Relies upon 1998 PCr.LJ 732, 2000 M LD 762 and 2000 M LD 793, to contend that the F.I.R. Is liable to be quashed, as continuation of the same will be abuse of process of law.
4 On the other hand, learned Assistant Advocate-General opposes this petition on the ground that in the presence of stay order issued by the Revenue Officer the petitioner had dishonestly removed the crop in order to deprive the original owner Haq Nawaz from his due share and even if offence under section 379, P.P.C. Is not made out, the provisions of section 424, P.P.C. Are fully attracted to the present, hence the F.I.R. Cannot be quashed.
5. I have heard the learned counsel for the parties and also perused the record. With the concurrence of learned counsel for the parties, the instant writ petition is decided as Pacca case and police record is also available.
6. It is an admitted fact that the petitioner alongwith Looney Khan was tenant under Haq Nawaz and the alleged stolen wheat was sown by them and that crop was allegedly removed by them without paying the due share to the landlord Haq Nawaz. Admittedly the petitioner was in possession of the said property wherefrom he had allegedly taken away the crop. Hence, the ingredients of section 378, P.P.C. Are not applicable to the facts and circumstances of the present case and it cannot be said that the petitioner is guilty of offence under section 379, P.P.C. Similar question came up for hearing before this Court in case titled "Muhammad Shafi and another v.
Station House Officer and 3 others" 2000 M LD 762 and this Court held as under:-- ...The tenants if takes or lifts the produce without payment of share or 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 Batai 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."
' The cases reported as 1998 PCr.LJ 732, PLD 1968 Dacca 678 and PLD 1958 Dacca 564 were referred wherein same dictum was laid down. This Court after detailed discussion had quashed the F.I.R. On the ground that the accused were the cultivators as tenants of the land, therefore, no offence was made out from the contents of the F.I.R.
7. In the present case, a bare perusal of the F.I.R. Clearly shows that there was a dispute over share of produce between the landlord and the tenants and the recourse under the Punjab Tenancy Act, 1887 was to file a suit before the Assistant Collector for recovery of the same or its price, but not by filing criminal proceedings. In this view of the matter, it is immaterial that section 424, P.P.C. Is attracted even if section 379, P.P.C. Is not made out, as has been pointed out by the learned A.A.-G.
8. For the foregoing reasons, it is held that further process consequent to impugned F.I.R. Will be abuse of process of law, which cannot be allowed to continue. It has been proved that dispute was of civil nature, which has been converted into criminal liability. Even if the petitioner or co-accused had violated any injunctive order issued by the Revenue Officer/complainant, they could be proceeded against under the relevant provisions of Contempt of Court Act, 1976 but it was no ground for initiation of criminal proceedings against them for the offence under section 379, P.P.C.
Hence, the instant writ petition is accepted and F.I.R. No.267 of 2003, dated 21-9-2003 registered under section 379, P.P.C. At Police Station Sadar Mailsi, District Vehari is hereby quashed. No order as to costs.
F.I.R. Quashed.