Discharge of accused at remand stage premature: LHC

Court terms step before completion of investigation contrary to procedure

LAHORE:

The Lahore High Court (LHC) has held that ordering the discharge of accused persons at the physical remand stage, before the completion of a full investigation, is premature and contrary to criminal procedure.

Justice Tariq Mehmood Bajwa of the Rawalpindi bench set aside a magistrate's order which had discharged two co-owners accused of cutting and stealing trees from jointly held property.

The dispute arose when the petitioner, owner of a sizable tract of land, lodged an FIR under Section 379 of the Pakistan Penal Code over the theft of standing trees.

Local police arrested the nominated suspects and sought their physical remand for further investigation. However, the duty magistrate discharged them after noting that both complainant and accused were co-sharers in the land - "as per settled principle of law, co-owner is owner of each and every inch of joint property" - and concluding that no offence could lie between joint owners.

Justice Bajwa found this approach legally flawed, observing that civil co-ownership rights do not bar criminal liability where one co-owner allegedly removes trees without the consent of the other co-owners in possession.

"The concept of possession under Section 378 PPC," he explained, "requires actual, physical control, not mere constructive ownership. If one co owner forcibly takes produce from the portion of land in which another holds physical, uninterrupted possession, it may amount to theft."

The judge further noted that the magistrate had failed to identify who actually held physical possession of the disputed land at the time of the alleged offence.

Evidence before the court - including an exhaustive revenue department report - demonstrated that the complainant party had occupied the land for decades, while the accused co-owner's share was limited and without active possession.

In such circumstances, the court ruled, investigation should have been allowed to proceed.