2025 P Cr. L J 492
[Balochistan]
Before Muhammad Ejaz Swati ACJ, and Muhammad Aamir Nawaz Rana, J
MEHMOOD KHAN ACHAKZAI ---Petitioner
Versus
The STATE and another ---Respondents
C.P. No. 655 of 2024, decided on 19th July, 2024.
Criminal Procedure Code (V of 1898) ---
----S. 561- A---Penal Code (XLV of 1860), Ss. 447, 448 & 34---Constitution of Pakistan,
Art. 199---Criminal trespass, house -trespass, common intention---Quashing of FIR ---
Scope ---Petitioner sought quashing of FIR lodged against him on the grounds that the
complainant registered FIR against the petitioner with the allegation that the property of
complainant had been possessed by petitioner's family members without mentioning the name of said family members ---Possession of the said property had been retrieved by the
State ---First Information Report was lodged after an unexplained delay of five years ---
Admittedly, the property in question was a residential plot, and did not come within the definition of house, as such, question of house trespass defined in S.442, P.P.C and
punishable under S.448, P.P.C did not arise ---Section 447 describes that whoever enters
into or upon property in the possession of another with intent to commit an offence ---
Said provision states that anyone who enteres or remains on an another person's property with the intent to commit an offence, intimidates insults or annoys the person in possession of that property---Under S. 441, P.P.C the main aim or object or dominant intention of entry should be either to commit an offence or to intimidate, insult or annoy the person in possession of the property---Under Art. 203 of the Constitution it was the responsibility of the High Court to supervise all subordinate courts and to take appropriate measure for preventing maladministration of justice and abuse of the process of law in appropriate cases, where the case is of no evidence and very registration of case is proved to be mala fide or the case is purely of civil nature or when there is unexceptional delay--- If the continuation of trial proceedings would be an exercise of
futility, wastage of time and abuse of process of Court, then it would be in the interest of justice to quash its proceedings, unless the accused person had first availed his remedy under S.249- A, or 265 -K Cr.P.C.---In the instant case neither any allegation within the
meaning of S.447, P.P.C had been levelled against the petitioner nor element of intimidation, annoyance or insulting any person in possession of the property in question was alleged in the FIR or in supporting evidence ---Thus, no case under S.447, P.P.C was
prima facie made out against the petitioner, therefore, the proceeding initiated on the basis of the FIR were declared to have been made without lawful authority having no legal effect ---Constitution petition was allowed accordingly.
Olga Tellis's case AIR 1986 SC 180; Malik Muhammad Zameer v. Shamim Akhtar
and 3 others 2006 PCr.LJ 539; Abdul Razzaq v. SHO and others 2008 PCr.LJ 812; Kazi Taj Muhammad v. The State and another PLD 1962 Karachi 330; Sughra Bibi v. The State PLD 2018 SC 595; State through Secretary Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 and FIA through Director General, FIA and others v. Syed Hamid Ali Shah and others PLD 2023 SC 265 rel.
Kamran Murtaza, Habibullah Nasar, Naimatullah Achakzai and Rehmatullah along
with Mehmood Khan Achakzai for Petitioner.
Noor Jahan Kahoor, APG and Saifullah Sanjrani, A.A.G. for the State.
Date of hearing: 15th July, 2024.
JUDGMENT
MUHAMMAD EJAZ SWATI, J .---Through this Constitution Petition, the petitioner
has prayed for Quashment of FIR No.43/2024 dated 11- 03-2024 (the FIR) registered with
Police Station Gwalmandi, District Quetta, under Sections 447, 448/34 Pakistan Penal Code
(P.P.C.).
2. According to the FIR, complainant Muhammad Jan, averred that a residential plot
measuring 48610 Square feet situated at Quarry Road Quetta, (plot in question) was illegally occupied by some family members of the petitioner regarding which Director Land Record and Establishment Officer on 09- 10-2019 requested the Board of Revenue to retrieve the
possession of the plot and handover the same to the Settlement Officer. In this regard, a team comprising of Assistant Commissioner Saddar and Tehsildar City was constituted under the supervision of Deputy Commissioner, Quetta, who on 03- 03-2024, allegedly retrieve the
possession from unnamed person.
3. On submission of interim Challan, an application under Section 249 -A read with
Section 190 Cr.P.C filed by the petitioner was dismissed by the learned Judicial Magistrate -
IX /MFC, Quetta, vide impugned order dated 10 - 05-2024.
4. The learned counsel for the petitioner contended that the petitioner is leading a
political party i.e. "Pashtunkhwa Milli Awami Party" and presently he is sitting member of the National Assembly and also leading the opposition alliance i.e. "Tehreek Tahafuz Ayin-e-Pakistan". That petitioner has no concern with the property in question rather Civil
Litigation i.e. Appeal No.34 of 2021 is pending before the Court between the State and
another private person, but the respondent due to mala fide intention and ulterior motive
alleged that the property in question has been possessed by the family member of the
petitioner without mentioning the name of said family member. That alleged letter to the
Board of Revenue was written on 09- 10-2019, whereas, FIR was lodged on 11- 03-2024 after
unexplained delay of almost 5 years, while the occurrence is alleged to have taken place on
03-03-2024. That contents of FIR and letter/report of Deputy Commissioner, Quetta dated
06-05-2024 reflects that the land in question was recovered and possession was taken by the
Assistant Commissioner Saddar, Quetta, on 03- 03-2024 from unnamed person before 8 days,
the FIR was registered. That from the contents of FIR no cognizable offence under Sections
447 and 448 P.P.C. is made out, therefore, the proceedings initiated on the basis of the FIR are liable to be quashed.
5. The learned counsel appearing on behalf of the State and learned A.A.G. contended
that allegation of criminal trespass of the State land had been levelled against the petitioner and in this respect sufficient evidence is available on record, which is yet to be produced by the prosecution. That impugned order passed by the learned Judicial Magistrate is based on legal premises, which does not warrant any interference by this Court as the trial is at initial stage.
6. We have heard the parties learned counsel and perused the record. It is admitted
position that the property in question is a residential plot does not come within the definition of house, as such, question of house trespass defined in section 442 P.P.C. and punishable under section 448 P.P.C. does not arise. Section 441 P.P.C. defines criminal trespass and punishment is stipulated under section 447 are reproduced herein below: -
"Criminal trespass. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property,
Or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit an offence, is said to commit "criminal trespass".
Punishment for Criminal trespass. Whoever commits criminal trespass shall be punished with imprisonment of either description for a term which may extent to three months, or with fine which may extent to [one thousand five hundred rupees], or with both."
7. The above provision states that anyone who enters or remains on an another person's
property with the intent to commit an offence, intimidates insult or annoy the person in
possession of that property. Under Section 441, P.P.C. the main aim or object or dominant
intention of entry should be either to commit an offence or to intimidate, insult or annoy the person in possession of the property.
8. The intention under Section 441 P.P.C. is two types i.e. to commit or to intimidate or
annoy, therefore, intention is sin qua non and has to be gathered from the facts and circumstances of the given case. There is difference between criminal and civil trespass. In civil trespass by way of taking possession of the property without consent of the person in possession of the property and criminal trespass for which insult or annoyance to the person in possession of such property is condition precedence.
9. In Olga Tellis case (AIR 1986 SC 180) the Supreme Court has observed that there is
no doubt that the petitioners are usually using pavement and other public properties for an unauthorized purpose. But their intention or object in doing so is not to commit an offence or intimidate, insult or annoy any person which is the gist of the offence or "criminal trespass" under Section 441 of the Penal Code.
10. In the case of Malik Muhammad Zameer v. Shamim Akhtar and 3 others (2006
PCr.LJ 539), it was observed as under: -
"The prosecution in order to establish the offence of 'criminal trespass' must prove
that the real or dominant intent of the entry was to commit an offence or to insult,
intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent or at any rate constituted not more than a subsidiary intent. Entry upon land made under a bona fide claim, however, ill founded in law the claim may
be, does not become criminal merely because a foreseen consequence of the entry is
annoyance to the occupant. Reference in this context can be made to the cases of
Takri Moosa Khan v. State 1998 MLD 1838, Bhagwan Din v. Emperor AIR 1918 All. 365, Kakayan v. Lee Like AIR 936 Rang. 133 and Ghulam Ahmad v. Emperor AIR 1938 Lah. 848.)"
Reliance is also placed on cases titled Abdul Razzaq v. SHO and others (2008 PCr.LJ
812) and Kazi Taj Muhammad v. The State and another (PLD 1962 Karachi, 330).
11. In the case of Sughra Bibi v. The State (PLD 2018 SC 595), the Honorable Supreme
Court of Pakistan observed as under: -
"Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the investigating officer by any person until the investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules a suspect is not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue."
12. Under Article 203 of the Constitution of Islamic Republic of Pakistan, 1973 it is the
responsibility of the High Court to supervise all subordinate courts and to take appropriate measure for preventing maladministration of justice and abuse of the process of law in appropriate case, where the case of no evidence and very registration of case is proved to be mala fide or the case is purely civil nature or when there is unexceptional delay. In case titled State through Secretary Ministry of Interior v. Ashiq Ali Bhutto (1993 SCMR 523) and Miraj Khan v. Gul Ahmed and 3 others (2000 SCMR 122), the Honorable Supreme Court of Pakistan observed that "if the continuation of trial proceedings would be an exercise of futility, wastage of time and abuse of process of court, then it would be in the interest of
justice to quash proceeding, unless the accused person has first availed his remedy under
Section 249- A or 265- K, Cr.P.C." Reliance is also placed on case titled FIA through Director
General, FIA and others v. Syed Hamid Ali Shah and others (PLD 2023 SC 265), wherein the Honorable Supreme Court observed as under: -
"Article 199(1)(a)(ii) of the Constitution empowers the High Courts to judicially review
the acts done or proceedings taken by the persons performing functions in connection with the affairs of the Federation, a Province or a local authority and if find such acts or proceedings to have been done or taken without lawful authority, to declare them to be so and of no legal effect. The registration of an FIR and the doing of an investigation are the acts of officers of the police department (a provincial law enforcement agency) who perform functions in connection with the affairs of a Province and are thus amenable to the jurisdiction of the High Courts under Article 199(1)(a)(ii) of the Constitution. The High Courts can declare such acts of the police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make any appropriate incidental or consequential order to effectuate its decision, such as quashing the FIR and investigation proceeding"
13. In the instant case neither any allegation within the meaning of Section 447 P.P.C. has
been levelled against the petitioner nor element of intimidation, annoyance or insulting any person in possession of the property in question is alleged in the FIR or in supporting evidence, no case under Section 447, P.P.C. is prima facie made out against the petitioner, therefore, the proceeding initiated on the basis of the FIR are declared to have been made without lawful authority having no legal effect.
14. Thus, the above are the reasons of our short order dated 15- 07-2024, which reads as
under,
"For the reasons to be recorded latter on, Constitution Petition No.655 of 2024 is allowed and order dated 10.05.2024 passed by learned Judicial Magistrate -IX/MFC,
Quetta is set -aside. The proceedings initiated against the petitioner pursuant to the
FIR No.43 of 2024, dated 11.03.2024, registered with Police Station Gwalmandi, District Quetta, under Sections 447, 448/34 P.P.C. are quashed to the extent of the petitioner."
JK/119/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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