Nasimullah vs Ijaz Hussain

2012 Y L R 1886

[Peshawar]

Before Qaiser Rashid Khan, J

NASIMULLAH---Petitioner

Versus

IJAZ HUSSAIN---Respondent

Criminal Quashment Petition No.61 of 2011, decided on 12th December, 2011.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K & 561-A---Illegal Dis-possession Act (XI of 2005), S. 7(1)---Application for quashing of proceedings---Allegation against the accused (petitioner) was that he had forcibly dispossessed tenant of the complainant (respondent) from the disputed land and illegally occupied the same on basis of a fictitious back dated lease deed---Accused filed a civil suit on the basis of the said lease deed and same was decreed ex parte in his favour, whereagainst an application under S.12(2), C.P.C, filed by complainant was pending adjudication---On the basis of said ex parte decree of civil court, accused applied for his acquittal under S. 256-K Cr.P.C but same was dismissed by court below---Validity---Case record belied the stance of the accused because complainant was put in possession of the disputed land after filing an application under S. 7(1) of Illegal Dispossession Act, 2005, and the accused was evicted therefrom---Mere existence of an ex parte decree in favour of the accused, which too, had been challenged through an application under S.12(2), C.P.C would not entitle the accused to his outright acquittal in the criminal proceedings before the Trial Court, where his alleged guilt or otherwise would be determined after recording of pro and contra evidence---Accused had failed to show as to under what circumstances, the case of the prosecution had become redundant; that there were no chances of his conviction, and that in all probabilities he would be acquitted---Proceedings before Trial Court could not be pre-empted through the present quashment petition, therefore, same was dismissed.

Noor Gul Khan Marwat for Petitioner.

S. Abid Hussain Bukhari for the Respondent.

Sanaullah Shamim D.A.G. for the State.

Date of hearing: 12th December, 2011.

JUDGMENT

QAISER RASHID KHAN, J.---Through this petition filed under section 561-A, Cr.P.C, the petitioner, Nasimullah, seeks the quashment of order dated 28-4-2011 passed by the learned Additional Sessions Judge-IV, D.I. Khan, whereby his application under section 265-K Cr.P.C. in complaint Case No.9 of 2010 has been dismissed.

2.This case has a chequered history. Briefly stated facts of the case are that Ejaz Hussain respondent filed a complaint in the court of learned Sessions Judge, D.I.Khan since entrusted to the learned Additional Sessions Judge-IV against the petitioner Nasimullah under sections 3/4 of the Illegal Dispossession Act, 2005 on the allegations that he is owner of land located in Khata No.224, khatoni Nos.885 to 892, khasra No.114 measuring 370 kanals, mauza Baber, Tehsil Paroa, District D.I.Khan which was given on lease to Nazim Khan son of Sharbat Khan with effect from 12-4-2005 to 30-4-2009 and was further extended for one year. On 6-4-2010 when the said period came to end, the lessee Nazim Khan handed over possession of the disputed land to the complainant Ejaz Hussain who appointed a tenant namely Muhammad Ramzan for the same but on 20-4-2010, the petitioner Nasimullah along with others duly armed with fire arms entered, removed the tenant therefrom and took forcible possession of the 'kotajat' constructed therein. On 28-4-2010, the complainant thus submitted an application to the DPO D.I.Khan about the illegal act of the petitioner and the latter in order to save his skin produced a fictitious lease deed of a back date, dated 22-4-2009 showing himself to be the lessee of the disputed land. The said lease deed was sent to FSL Peshawar for verification and, in the meanwhile, the complainant also applied to the Incharge Treasury Branch D.I.Khan on 13-5-2010 for verification of the stamp paper used for the aforesaid lease deed dated 22-4-2009 bearing No.3716 who reported in the negative. Likewise, the report of FSL Peshawar dated 21-5-2010 was also received in negative and thus the petitioner was arrested by the local police but no legal action was taken against him in the shape of registration of a criminal case. The petitioner in turn filed a civil suit on the basis of aforesaid back dated lease deed dated 22-4-2009 which was decreed ex parte in his favour vide judgment and decree dated 27-1-2011 passed by the learned Civil Judge-IV, D.I.Khan, where-against an application under section 12(2), C.P.C. is pending adjudication being based on fraud etc.

3.During the pendency of the complaint, the learned Additional Sessions Judge-IV, D.I. Khan vide order dated 8-12-2010 handed over the possession of the disputed land to the complainant under section 7(1) of the Illegal Dispossession Act, 2005 which was challenged by the petitioner before this court through a writ petition but in vain vide order dated 14-12- 2010 against which C.P.L.A-1-P/ 2011 is pending adjudication before the august apex court.

4.On the basis of aforesaid decree of the civil court, the petitioner applied to the learned Additional Sessions Judge-IV, D.I. Khan for his acquittal under section 265-K, Cr.P.C. but could not succeed vide order impugned herein.

5.I have carefully gone through the entire record of the case and anxiously considered the arguments of the learned counsel for the parties including the learned Deputy Advocate-General representing the State.

6.The allegations against the petitioner are that he had forcibly dispossessed Muhammad Ramzan, tenant of the complainant from the disputed land and illegally occupied the same on 20- 4-2010, while on the other hand the plea of the petitioner is that he being lessee had lawfully taken its possession.

7.The record, however, belies the stance of the petitioner as the same is totally unfounded and baseless because vide order dated 8-12-2010, the respondent was put in possession of the disputed land and the petitioner was evicted therefrom while disposing off the application of the respondent under section 7(1) of the Illegal Dispossession Act, 2005. Mere existence of an ex parte decree in favour of the petitioner which too, has been challenged through an application under section 12(2), C.P.C. would not entitle the petitioner to his outright acquittal in the criminal proceedings before the learned trial court where his alleged guilt or otherwise would be determined after recording of pro and contra evidence.

8.The petitioner has failed to show that under what circumstances the case of the prosecution has become redundant and that there are no chances of conviction of the petitioner and that in all probabilities he would be acquitted. Courts of law do not go by probabilities and the same can even be the figment of imagination of an individual. The proceedings before the learned trial court cannot be pre-empted through the present quashment petition.

9.For the reasons stated above, I find no substance in this petition which is accordingly dismissed.

M.W.A./115/P Petition dismissed.