Khan Muhammad vs Judicial Magistrate (Ilaqa), Pindi Gheb Ss — 2025 PCrLJ 1535 LAHORE-HIGH-COURT-LAHORE

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Khan Muhammad VS Judicial Magistrate (Ilaqa), Pindi Gheb Ss.167 & 169---Constitution of Pakistan, Art. 199---Quashment of order------Constitutional jurisdiction of the High Court---Release of accused when evidence deficient---Scope---Petitioner lodged FIR under S.379, P.P.C., against private respondents regarding theft of trees from the land of petitioner---Police arrested the accused persons and produced them before Area Magistrate for physical remand, which was not acceded to and Magistrate discharged the accused---Validity---Matter was to be investigated that who was in physical possession on the disputed portion of land---Co-sharer might have not been in physical possession of that joint property---If said co-sharer forcibly or dishonestly removed trees from any part of the joint property, on which he had no possession, without the consent of other co-sharers, was actually in physical possession and with criminal intent, he might be liable under S. 379, P.P.C---Thus, it was a misconception of law to assume that co-ownership precluded criminal liability---What mattered was the presence of dishonest intention (mens rea) and unauthorized removal of trees, both of which were alleged in the FIR---Discharge order at the physical remand stage without full investigation was pre-mature---Magistrate should not evaluate merits or civil rights of ownership or strange question of constructive possession during early criminal proceedings---Magistrate proceeded to discharge the accused merely on the assumption that being co-sharers, no offence under S.379, P.P.C., could be made out---Such approach was legally flawed and contrary to the settled principles of law---Existence of civil rights or co-ownership was not a valid ground for stifling a criminal investigation or prosecution---Criminal Court must allow investigation to take its course and must not prematurely terminate proceedings of investigation at the remand stage---Investigation should be allowed to continue unless there was clear evidence of mala fide---In the impugned order, not even a single word had been mentioned about the exhaustive report of revenue department, on the question of un-interrupted long physical possession of the warring party---Matter was at the stage of investigation, the observations were restricted only to the extent, in case of physical possession of the complainant, if the trees were stolen, offence under S.379 was prima facie attracted---However, the nominated accused committed offence or not was a question of investigation/prosecution---Petition was accepted, in circumstances.

Khan Muhammad vs Judicial Magistrate (Ilaqa), Pindi Gheb Ss — 2025 PCrLJ 1535 LAHORE-HIGH-COURT-LAHORE

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