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Criminal Miscellaneous No. 1436/Q of 1985, decided on 10th February, 1987.

‑‑‑S.447‑‑Criminal trespass, offence of‑‑Mere occupation of a house not occupied by any one else, held, did not constitute an offence under S. 447, P.P.C.

‑‑Ss. 561‑A & 249‑A‑‑Quashing of proceedings‑‑Quashing of criminal proceedings sought from High Court in exercise of its inherent jurisdiction under S.561‑A, without first availing opportunity under S.249 A, Cr.P.C.‑‑High Court, however, interfered in matter since complainants of criminal case happened to be police constables and found making efforts to obtain possession of house in dispute through criminal Court.

‑‑‑S. 561‑A‑‑Quashing of proceedings‑‑F.I.R. lodged with a clear gap of more than 8 months between occurrence and its registration and such delay not explained in any manner‑‑Case registered under ordinary offences falling under S.447/506, P.P.C. yet trial not concluded despite lapse of 2 years‑‑Civil suit between parties in respect of same property also pending decision‑‑Proceedings quashed, in circumstances.

Nawaz A. Jajja for Applicant.

M. Siddique Shaikh and A.A. Mohammadaly, A.A.‑G. for Respondents.

Date of hearing: 8th February, 1987.

This application under section 561‑A, Cr.P.C. seeks quashment of a case charge‑sheeted under section 506/448, P.P.C.

2. The complainants, Muhammad Munir and Abdul Qayyum, had filed F.I.R. on 26‑10‑1984 alleging that they had made a complaint to S.P., Liaquatabad that their Houses Nos. 155 and 156 were under unlawful occupation of Haji Toti Bashar and Saeed Ahmad and those should be vacated. The said application was sent to the concerned Police Station by the S.P. and the S.H.O. called both the parties and the accused Haji Toti Bashar and Saeed Ahmad were found to have unlawfully occupied and they were directed to hand over the houses to the complainant. However, next day they went to the accused Haji Toti Bashar and Saeed Ahmed, but they stated that they do not accept the decision of the S.H.O. and nor they will vacate the houses and stated the complainants that you may go to Martial Law. They also threatened the complainants that if you have love with your lives get out from there and abused the complainants and stated that they will kill the complainants and will not vacate their houses. Action from the police was sought. The police challaned the case under section 448/506, P.P.C.

3. The applicant's counsel had complained that they were being harassed by Munir and Abdul Qayyum, who were police constables and that Haji Toti Bashar had filed the civil suit and had obtained the stay from the Civil Court.

The counsel, further submitted that the S.D.M. concerned had illegally issued an order under section 445, Cr.P.C. and got the property sealed, but the applicant approached the High Court and the High Court quashed the order under section 445, Cr.P.C. on 13‑2‑1985 in Criminal Miscellaneous Q. No. 1173 of 1984 and eventually the possession was restored to the applicant.

4. The complainant had also asserted that none of the P.Ws. had really made any statement against the applicant, which could involve him in any case. This Court on 2‑10‑1986 had called upon the learned A.‑G. to show the police papers.

5. I have seen the statements made by Muhammad Munir and Abdul Qayyum under section 161 of Cr.P.C. and they do not appear to show the commission of any criminal offence except a statement to the effect that Toti Bashar and Saeed Ahmad had occupied the houses, which were made by Muhammad Munir and Abdul Qayyum. Mere occupation of a house, which is not occupied by anyone is hardly an offence under section 447, P.P.C. unless it is coupled with intention to commit offence or to intimidate any person which seem to be lacking in the statement of the complainants under section 161, Cr.P.C. Therefore, the proceedings were uncalled for.

6. Moreover, I find that the F.I.R. was filed on 26‑10‑1984 while the offence has taken place on 24‑2‑1984, which shows a clear gap of more than 8 months in filing the F.I.R. and the same is not explained in any manner. It, therefore, appears to me that the criminal proceedings are being used in order to pressurise the applicant to hand over the possession of the property to the complainant.

7. I would not have interfered in the matter without the application having first been moved under section 249‑A, Cr.P.C. but in the present case since the two complainants are police constables and there has been an illegal effort on their part to obtain the possession of the property through S.D.M. which order had been quashed by this Court and further on account of the pendency of civil suit in respect of the same matter as noted by the High Court in matter of section 145 of Cr.P.C. and fact that F.I.R. had been too belated and moreover, the case having been pending since December 1984 with the S.D.M. and the same having not been concluded in spite of lapse of two years in spite of the fact that it is in respect of ordinary offence, I have, therefore, deemed it appropriate to quash these proceedings under section 561‑A of Cr.P.C.

8. Mr. A.A. Mohammadaly, A.A.‑G. has supported the applicant in view of the civil suit pending between the parties. He has rightly done so.

9. The respondents and their counsel have been called absent.

10. This application is, therefore, allowed and the proceedings are quashed.

S.G.D./T‑5/K Proceedings quashed.

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