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Criminal Miscellaneous No. 195 of 1980, decided on 23rd November. 1981.
------S. 561‑A‑Quashing of proceedings‑Record and documents produced not showing petitioners or respondents in possession of allotment order in respect of disputed property‑Question of alleg ed criminal trespass can be decided only on basis of ocular evidence yet to be produced‑Person looking after plot on behalf of respondent not yet examined‑Quashing of proceedings declined, in circumstances.
M. Shah for Petitioner No. 1.
Asad Ali Bilgrami for Respondents.
Date of hearing : 23rd November, 1981.
The Advocate for the applicant submitted that the F. I. R. does not disclose commission of offence of criminal trespass and as such the cognizance taken by the learned trial Court amounts to abuse of the process of the Court. The applicant has filed the copy of F. I. R. with the above application, which is at page 37 of the above application. Unfortunately this is not the entire copy of the F. I. R on the basis of which the proceedings in question were initiated before the trial Court. The learned Advocate for the respondent No. 1 has given me copy of the said very F. I. R. which is complete and clearly states that the respondent No. 1 was in possession of plot No. 1127, P. I.,B. Colony, Karachi, and in fact was staying therein till recently, when he shifted from there leaving one Rehmatullah Chowkidar, to look after the said plot and on 9th February, 1970, the said Chowkidar informed the respondent No. 1, that applicants have trespassed into the said plot and consequently the res pondents filed the F. I. R. in question. In view of this contention of the learned Advocate for the applicant, that F. I. R. does not disclose an offence of criminal trespass prima facie, has no force. In my opinion the copy of the F. I. R. produced by respondent No. 1 before me does prima facie make out a case of criminal trespass against the present applicants and as such a cognizance taken by the learned Magistrate did not amount to abuse of the process of the Court.
2. The learned Advocate for the applicant has admitted before me, that two P. Ws. have already been examined and only one P. W. Rehmatullah, Chowkidar remains to be examined before the trial Court, as far as the question of the respondent. No. 1 and alleged trespass committed by the present applicants. Besides this the learned Advocate for the respondents submitted that there will be few other wit nesses also.
3. The records and documents which are before me do not show either respondent No. 1 or any of the applicants being in possession of the allotment order from P. I. B. Colony, in respect of the quarter or the plot in question. In the absence of such documents, the question of alleged criminal trespass will have to be decided on the basis they ocular evidence, which will have to be produced and ultimately apprais ed by the trial Curt. Very important P. W. Rehmatullah, who is the person stated to be looking after on behalf of the respondent No. 1, the plot in question, has not yet been examined and in my opinion without his evidence, it is not possible to consider, whether applicants did commit criminal trespass in February, 1979 or they were in possession of this plot as alleged by them, since October, 1978. All these questions can only be decided after recording of evidence and as such this is not a fit case, where in the exercise of my power under section 561‑A, Cr. P. C., I should quash the proceedings and as such I dismiss the above applica tion. However, I direct the learned Magistrate to expedite the proceed ings and examine all the witnesses that may be produced by the pro secution as well as by the defence and dispose of the said matter within six months from today.
Application dismissed.
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