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Criminal Miscellaneous No. 562/Q of 1978 and Criminal Miscellaneous No. 780‑M of 1985, decided on 1^st June, 1986.

‑‑‑S. 447‑‑Civil Procedure Code (V of 1908), O. XXXIX, R. 2(3)‑‑Status quo, violation of‑‑Penalties, nature of‑‑Penalties involved under O.XXXIX, R. 2(3), Civil Procedure Code, held, was criminal in nature‑ Court should proceed as nearly as possible in same manner as criminal Court would proceed when taking action under said rule.

Halim's case P L D 1952 Lah. 77 rel.

‑‑‑S. 403(4)‑‑Penal Code (XLV of 1860), S. 447‑‑Civil Procedure Code (V of 1908), O. XXXIX, R. 2(3)‑‑Autre fois convict, plea of‑‑A person acquitted or convicted of any offence constituted by any Act, may, notwithstanding such acquittal or conviction, be subsequently charge with and tried for any other offence constituted by same acts which he might have committed if Court by which he was first tried was not competent to try offence with which he was subsequently charged‑‑Plea of autre fois convict, held, would not be applicable to such case.

‑‑‑S. 403(4)‑‑Word "may" in subsection (4) of S.403, Criminal Procedure Code, held, shows that power to prosecute was discretionary.

‑‑Ss. 403(4) & 561‑A‑‑Civil Procedure Code (V of 1908), O.XXXIX, R.2(3)‑‑Penal Code (XLV of 1860), S. 447‑‑Quashing of proceedings‑ Autre fois convict, plea of‑‑Accused dealt with under O.XXXIX, R.2(3), Civil Procedure Code, for their criminal trespass into land in possession of respondent for which status quo order was granted by civil Court‑ Accused were proceeded for violation of status quo order and punished with imprisonment by civil Court at instance of respondent‑‑Accused held, could not be dragged by respondent once again for action under S.447, Penal Code, and continuation of criminal proceedings against accused under S.447, Penal Code, would amount to abuse of process of Court‑‑Proceedings quashed.

Syed Samar Hussain for Petitioners.

Muhammad Nawaz for Respondents.

Amjad Hussain for the State.

This order will dispose of a quashment petition (Criminal Miscellaneous 562/Q of 1978) filed by Muhammad Khan and three others, petitioners, for the quashment of a criminal case pending against them under section 447, P.P.C. in the Court of Mr. Shaukat Javed Farooqi, M.I.C. Lahore, and a petition (Criminal Miscellaneous 780/M of 1985) filed by Agha Muhammad Khan, petitioner, against Muhammad Khan and others, respondents, for criminal action to be taken against them under section 476, Cr.P.C. for filing with the above‑said quashment petition an allotment order, dated 1‑2‑1953 (Annexure 'A' to the petition) which was a forged document and for attempting to use the said forged document in support of their case.

2. I will now first take up the quashment petition (Criminal Miscellaneous 562/Q of 1978). The case of Muhammad Khan and others, petitioners, in brief is that with regard to the violation of a status quo order passed by the Civil Judge on 19‑6‑1976, they were proceeded against criminally under Order XXXIX, Rule 2(3), C.P.C. and they were sentenced to six months' simple imprisonment each, that the illegal construction raised by them was demolished and that the possession of one disputed plot was restored to the opposite party. In view of the said conviction under Order XXXIX, Rule 2(3), C.P.C., the petitioners contended that in respect of the same matter, criminal proceedings cannot be taken against them for the second time under section 447, P.P.C. on the principle of autre fois convict.

3. As held by this Court in Hatim's case P L D 1952 Lah. 77, they penalties involved under Rule 2(3) of Order XXXIX of the Code of Civil Procedure are clearly of a criminal 'nature and that the Court should proceed as nearly as possible in the same manner as a criminal Court would proceed when taking action under the said rule. Thus, even assuming that Muhammad Khan and others, petitioners, were dealt with by the civil Court in proceedings of a criminal nature and they were sentenced to six months' simple imprisonment and that the illegal construction raised by them was demolished and the possession of one disputed plot, which the Civil Judge held to be with the petitioners, was delivered to the opposite party, the question still arises whether their trial under section 447 , P.P.C. is barred by section 403 , Cr.P.C. on the plea of autre fois convict. It is clear that under Rule 2(3) of Order XXXIX .of the Code, the petitioners could not have been convicted B in respect of any of the offences mentioned in the Pakistan Penal Code. Under subsection (4) of section 403 of the Code of Criminal Procedure, a person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with. which he was subsequently charged. The plea of autre foil convict, therefore, does not apply to this case. However, the word "may" in subsection (4) of section 403 clearly shows that the power to prosecute is discretionary. It, therefore, remains to be examined whether the petitioners should be permitted to be tried under section 447, P.P.C.

4. The dispute between the parties was over three Killas (Khasras Nos, 5387, 5388 and 5389). The respondent claimed all three to be in his possession. The Civil Judge found that the petitioners had criminally trespassed into one of the three Killas (namely, 5389), which was originally in the possession of the respondent, that he had taken illegal possession thereof and had started constructing a wall thereon. The said criminal trespass being in violation of the status quo order issued by the Court on 19‑6‑1976, the Civil Judge, in proceedings under Rule 2(3) of Order XXXIX of the Code of Civil Procedure, sentenced the petitioners to six months simple imprisonment each and directed that the illegal construction raised by them be demolished and that possession of Kills. No. 5389 be restored to the respondent. The imposition of the punishment was clearly within the four‑walls of Rule 2(3) of Order XXXIX, whereas the remaining relief was under sections 144 and 151 of the Code. Whatever be the position, the petitioners have been criminally dealt with for their criminal trespass and they have been punished with imprisonment in respect thereof and the respondent has got back the disputed Killa, which, if proceedings under section 447, P.P.C. had succeeded, he would have been given under section 517 or 54 2 of the Code of Criminal Procedure. Since all the remedies lay in the civil jurisdiction and the same have been taken by the respondent, and, if I may say so, successfully and fully in all respects, the respondent cannot be permitted to drag the petitioners in criminal proceedings once again regarding the same matter. This case can be looked at from another perspective. Assuming the present case under section 447, P.P.C. had been registered against the petitioners, but no action had been taken by the respondent under Rule 2(3) of Order XXXIX of the Code of Civil Procedure, the petitioners could have successfully asked, for the quashment of the criminal proceedings on the ground that a remedy lay for their trespass and restitution in the civil jurisdiction under the said rule, which the respondent should avail of. For all these reasons, I would hold that the continuance of proceedings under section 447, P.P.C. against the petitioners would amount to nothing more than an abuse of the process of the Court and that the proceedings, therefore, deserve to be quashed under section 561‑A, Cr.P.C.

5. For the foregoing reasons, quashment petition (Criminal Miscellaneous 562‑Q of 1978) filed by Muhammad Khan and others, petitioners, is accepted and the criminal proceedings pending against them under section 447, P.P.C. in the Court of the Magistrate are quashed.

6. I wilt now take up the miscellaneous petition (Criminal Miscellaneous No. 780‑M/85) filed by Agha Muzammal Khan petitioner, against Muhammad Khan and others, respondents. Thus, petition is still in motion stage. It is the case of the petitioner in this petition that Muhammad Khan and others, respondents, whilst filing the quashment petition (Criminal Miscellaneous No. 562‑Q/78), also filed with the said petition a photo copy of an allotment order, dated 1‑2‑1953 purporting to be issued by the Deputy Rehabilitation Commissioner/Reh: Officer, Lahore, allotting the disputed plots to Saddarud Din and his wife Mst. Aisha Bibi, the predecessor‑in‑interest of the respondents, which document lodged with the petition and marked 'A', was forged. In respect of the plea of forgery, it is submitted that the said allotment order was never referred to by Mst. Aisha Bibi or heir husband, Saddarud Din, either in their suit instituted on 25‑11‑1976 against the petitioner and others, or in their written statement to the suit instituted on 17‑5‑1976 by the petitioner against Mst. Aisha Bibi and others, or in subsequent legal proceedings. In this connection para. 1 of the plaint in respect of the suit filed by Mgt. Aisha Bibi and others on 25‑11‑1976 and para: 4. of the order of the learned Single Judge of this Court in C.R. No. 109 of 1977 titled Aisha Bibi etc. v. Manzoor Ahmad etc. are referred. It is finally submitted that Muhammad Khan, respondent, had filed an application before the Vice‑Chairman, Vigilance Commission, Board of Revenue, Lahore, regarding cancellation of P.T.D. No. 371, dated 23‑10‑1962 obtained by one Muhammad Abdullah, a third person, in respect of the same disputed plot, in respect of which Rana Muhammad Rafiq, Settlement Commissioner (Lands), was appointed Inquiry Officer, who looked into the matter and reported that Muhammad Khan, respondent, and his mother Mst. Aisha Bibi had initially never claimed that they were allottees, transferees or P.T.D. holders of the disputed plot, that for the first time on 4‑7‑1976 Mat. Aisha Bibi had filed a miscellaneous application wherein she had requested that she was in possession of a plot, in respect of which she could not file her form in time and that she may be allowed to do so under the new scheme and that on and after 14‑4‑1979 she and her husband Saddarud bin had begun making various applications. Certified copy of the report of the said Settlement Commissioner (Lands)/Inquiry Officer has been filed with the petition.

7. It appears that a suit already filed on 26‑2‑1984 by Muhammad Khan, respondent, and others against Agha Muzammal Khan, petitioner, and others, regarding the disputed plots, is still pending, wherein a miscellaneous application, has already been filed for the amendment of the plaint to challenge the report of Rana Muhammad Rafiq, Settlement Commissioner (Lands)/Inquiry officer, dated 4‑6‑1983. If any order is passed on the present petition, it would influence the trial Judge in the determination of the matter before him. It is not in the interest of justice at this stage to deflect the mind of the 'trial Judge. I would, therefore, admit the petition, order notice to issue to the respondents, but would order that the present petition should be kept pending and adjourned sine die till the suit filed by Muhammad Khan, respondent, etc. against Agha Muzammal Khan, petitioner, and others, is finally decided. After the final decision in the suit, parties may move for the actual hearing in the case.

M.Y.H. Petition accepted.

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