P (PLP)

"Convicts will be bailed out at Rs. 500 with one surety. The order under section 522, Criminal Procedure Code, will stand until legally upset." On the 16th October, 1946 an application was moved before she Sessions judge for an order that possession of the house be restored to Abdul Ghani and Ahmad Din, from whom it had been taken and, delivered to Imam Din in compliance with the Magistrate's order mentioned above. This application was dis posed of by the learned Sessions judge by order dated the 8th November, 1946, reading as under:‑ "It is perfectly obvious that even if the order of the Magis trate regarding the delivery of possession of the house be treated c' as one within the orbit of provisions of section 522 of the Criminal Procedure Code, the order is by itself not appealable. As the appeal is coming up for hearing on the 18th November, and as possession of the house has already been delivered to Imam Din, the present petition which is incompetent, needs no consideration. I accordingly reject this petition." Subsequently, on the 15th January, 1947, the learned Sessions Judge accepted the appeal preferred by Abdul Ghani and Ahmad Din and acquitted them. The petition in this Court was instituted on the 2nd May, 1947, by Abdul Ghani, and the prayer is that possession of the property should be ordered to be restored to the petitioner on the simple ground that he has been acquitted of the charge of illegally having taken possession of it. Mr. Muhammad Amin for the petitioner has cited certain authorities in support of his case. The earliest is a Full Bench decision of the Punjab Chief Court published as "Kirpal Singh v. Labhu" 5 Pl. 12. (Cr.) 1895 (F. B.). There the facts were that the petitioners had been convicted under section 448, Indian Penal Code, for taking illegal possession of a dharamsala, and an order restoring possession of the dharamsala to the complainant had been made by a Magistrate. Both the order of conviction and the order directing restoration of possession were reversed in the High Court as improper and illegal. The petitioners then applied to a Magistrate for restoration of possession to them, and their application was rejected on the ground that there was no provision in the Criminal Procedure Code under which such action could be taken. The Full Bench held that a Criminal Court has power to restore possession to a party dispossessed by its order under section 522, Criminal Procedure Code, when that order has been set aside as illegal by superior authority. The decision in that case was not precisely the same as arises here, but certain observa tions made by the Full Bench are relevant: These are to the effect that on general principles, it should follow as a logical consequence of the reversal of a conviction, by reason of which the convict was deprived of possession of property by means of a Court order, that such order should be reversed and the pro perty restored to the acquitted person. The view was expressed that a person who gains possession of property in consequence of an order which is liable to be set aside by superior authority takes possession subject to the decision of such authority, and if the original order is annulled, the party dispossessed should be restored to possession. The Full Bench went further and opined that the Magistrate's order for dispossession in the case before them was to be regarded as a conditional one, and the property itself to be in the custody of the Court till the order was con firmed or became final. If the order were not confirmed, the parties would be relegated to the previous position "and the Court is bound to exercise its powers to restore them to that condition." Here, the position is that the Magistrate's order granting posses sion to Imam Din has not been reversed, but at the same time the mode in which the learned Sessions judge disposed of the application by Abdul Ghani and Ahmad Din to be placed in possession cannot be regarded as satisfactory, and it is not untitled that if the learned Sessions judge had delayed the decision of the petition until he had decided the appeal, he might have come to a different conclusion. Power to make an order restoring possession would at that‑time have been available to him under section 423 (1) (d), Criminal Procedure Code. The next case cited is "Lal Chand v. Dasondhi" 1923 A.I.R. (Lah.) 15, which was a revision petition by the complainant seeking reversal‑of an order of a Sessions judge acquitting the accused and at the same time setting aside an order for possession under section 522, which had been made in the complainant's favour. In dismissing the petition, the learned Single Judge who decided the case referred to Kirpal Singh v. Labhu 5 P. R. (Cr.) 1895 (F. B), (cited above), as laying down that "where a conviction is set aside the order under section 522 resulting therefrom must also be set aside'", and concluded by saying that the order under section 522 in the case arose from and depended entirely upon the existence of the conviction" and that once it was held that no offence had been" committed "the consequence arising from the Commission of the offence must automatically cease to be." The same view was expressed in the case "Raghu Nath v. Raghu nath Sahai " (1929) 118 I. C. 392, where the facts were that after the conviction of the accused persons for trespass, the Magistrate on application by the complainant granted possession of the house to‑him by order under section 522, and the com plainant accordingly took possession. Subsequently, the appellate Court remitted the case to the Magistrate for re‑trial, and eventu ally the accused were acquitted. Any application was then made by the accused for restoration of possession to them on the simple ground that the conviction in consequence of which the complainant obtained possession of the property had been set aside. While observing that the equities of the case are entirely in favour of the complainant" Sir Shadi Lal, Chief justice, citing is Kirpai Singh v. Lahhu" 5 P. R. (Cr.) 1895 (F. B.) and "Lal Chand v. Dasondhi " 1923 A. I. R. (Lah.) 15 (cited above) con cluded that he had "no alternative but to hold that the possession of the house should be given back to the accused" upon the consideration that "the conviction which alone could sustain the order under "section 522 has been set aside." This case has been cited with approval and followed by a learned judge of the Allahabad High Court in "Malkhan Singh v. Emperor" 1945 A. I. R. (All.) 2216. Learned counsel for the respondent Imam Din has not been able to cite any authority to the contrary effect, but he urges that the views expressed in the Lahore cases cited above need to be reconsidered since they have the effect of putting fetters upon the complete discretion conferred by section 439, Criminal Procedure Code, which are unwarranted, and may lead in certain circum stances to the making of a palpably unjust order. He points out that in the present case, his clients are undisputed owners of the property, and having obtained a decree on that basis for possession, they have put that decree into execution and taken possession in a formal way. It is not open to them to rely on that decree any further for regaining possession. The grounds upon which the evidence of the bailiff Feroze Beg supported by the statements of three witnesses who had attested the warrant, has been dis believed by the Sessions judge are characterized as unsound. Attention was invited to the clear conflict between the stand taken by the accused persons and that taken by Abdul Ghani's brother Abdul Hakim, and it was pointed out that the latter's version is not supported by any credible evidence, the documentary evidence in support being inconclusive, and moreover, that if, in fact, Imam Din had accepted Abdul Hakim as a tenant of the house, there would be no point in his denying it as he could eject Abdul Hakim by due process of law. It was suggested to Imam Din and denied by him that he had tried to raise the rent on the other hand, Abdul Hakim had not said a word about any rent fixed by the deed which he allegedly wrote out nor did he positively affirm that any demand for higher rent was made from him. The entire version of Abdul Hakim had been set up on the basis of the description " kiraya‑dar " which he had applied to himself in signing the bailiff's report on the warrant, Ex. P. D. In fact, Abdul Hakim was a tenant under Abdul Ghani and he used this description for himself because he was afraid that his own belong ings might be attached along with those of Abdul Ghani. The accused persons had been acquitted on inadequate grounds. The plea that Abdul Hakim had attorned to the complainant conceded the latter's possession, but it was entirely unsupported by natural' evidence and its acceptance could only provide further embarrass ment to the complainant in regaining possession. The complainant had consequently been driven to institute a suit against the accused persons for a permanent injunction to restrain them from depriving the plaintiff of the possession which had been granted to him by the Magistrate, and this suit had now been decreed. (A certified copy of the judgment has been placed on the record). If regard were had to all the circumstances of the case, it would appear that to restore possession to Abdul Ghani would be tantamount to perpet rating an injustice. I have given careful consideration to the arguments addressed by the learned counsel for the parties in this case. With great respect to the weighty pronouncements of learned Judges in the cases cited on behalf of the petitioner, I feel that, for follow their views would, in the circumstances berg prevent not be an act is the furtherance of justice; but would lead to further litigation which in my view would be obviated if full weight were, given to the words in its discretion used in section 439, Criminal Procedure Code in stating the extent of the High Court's reversionary power. There are no words of qualification, such as might be understood to limit the discretion thus conferred. Certainly, the discretion vested in the Court is not to be regarded as arbitrary, but in the words of section 22, Specific Relief Act; 1879, "sound and reasonable, guided by judicial principles". The language employed in " Lal Chand v. Dasoridhi "(1) 1923 A. I. R. (Lah.) 15, and Raghunath v. Ragunath Sahai " (1929) 118 I. C. 392 (cited above), which is of a compulsive character, has the effect of fettering the discretion vested in the High Court so that .upon proof of a single fact, namely the acquittal of a person charged with an offence attended by criminal force or intimidation, .an order made under section 522 restoring to the complainant possession of any property of which the accused person was alleged to have gained possession by criminal force or intimidation, must necessarily be set aside, notwithstanding that the grounds for the acquittal may be patently unsound, and that every claim of right might be available to support the complaint. My own view is that while it is correct to say that an order under section 522 Criminal Procedure, can only follow upon a conviction, an order in revision setting it aside need not necessarily follow up an acquittal, but in dealing with an application for restoration on the revision side the High Court, after taking into consideration all the surrounding circumstances, may make such order as may be just and equitable. An important circumstance would be that the complainant, following the acquittal, had taken steps to have his possession confirmed by a Civil Court. With the law in its present state on the basis of the authori ties cited above, I have no alternative but to follow them; and it is because consider that the law as so settled requires to be reconsidered, that I direct that this case may be placed before my Lord the Chief justice, for reference to a larger, Bench. CORNELIUS, J.‑The petitioner is one Abdul Ghani, who had been prosecuted on the complaint of one Imam Din under sections 453 and 455, Indian Penal Code, for the offence of criminal trespass into a house, situated in Sialkot City, which is beyond' question the property of Mahboob Ilahi, son of Imam Din: Throughout the lengthy proceedings which have taken place in respect of this house, which include a civil suit as well, no ground has been set up on behalf of Abdul Ghani which would furnish him with Any present claim of title to the house. In the criminal case mentioned above there was another person accused along with Abdul Ghani namely Ahmad Din, and the allegation was that after Abdul‑Ghani had been dispossessed by means of a warrant issued in‑favour of Mahboob Ilahi by a Civil Court in execution of a decree obtained by Mahboob Ilahi against Abdul Ghani and others, the two accused persons forced open, the lock and took possession of the house after making preparations for causing hurt and upon these allegations they were convicted by a Magistrate on the 10th September, 1946, and the Magistrate also made an order under, section 522, Criminal, Procedure Code, directing that possession of the house be, made over to Imam' Din. It is also clear that following this conviction, the order for delivery of Possession to Imam Din was duly carried out. Abdul, Ghani and Ahmad Din successfully appealed from their conviction, and, were acquitted but an application which they had filed shortly after instituting their appal, for restoration of possession of the house to them was dismissed the learned Sessions judge on a date prior to the disposal of the appeal, it being the view of the learned Sessions judge that the petition Was incompetent because no appeal lay from an order made under section 522, Criminal Proce dure Code. After his acquittal Abdul Ghani instituted the present petition in this Court for an order that possession of the property should be restored to him, on the simple ground of his acquittal on that charge of having taken possession of it unlawfully. The application was "resisted on behalf of Mahboob Ilahi, and the case was argued before me sitting singly at great length. Reliance was placed on the petitioner's behalf upon certain authorities, which were represented as being of binding effect, and as providing that in the circumstances existing in this case this Court sitting in revision had no alternative but to restore possession to the acquitted person from whom it bad been taken away by an order under section 522, Criminal Procedure Code. Being of the opinion that such a view had the effect of placing a restriction upon the exercise of the High Court's reversionary powers under section 439, Criminal Procedure Code, which the words of that section did not justify, and further, holding the opinion that in the present case, justice did not require that the title‑holder should be dispossessed upon motion by one who had no legal title of any kind, I moved for the reference of this case to a larger Bench in order that the conclusions reached in the earlier reported decisions should be reconsidered. The case has accordingly been heard by a Division Bench. At the outset it is necessary to state what the legal provisions are which bear upon the point under examination. The order of the Magistrate whereby possession was delivered to Imam Din was made under section 522, Criminal Procedure Code. This section provides that when a Court which convicts a person of an offence, of which a principal element is the use or show of criminal force or criminal intimidation, the Court may at the same time restore to any person possession of any immovable property, of which it appears to the Court that such a person has been dispossessed on account of the use or show of force or criminal intimidation afore said. The section further provides that an order to this effect by a Court shall not prejudice any right or interest in respect of such immovable property which any person may be able to establish in a civil suit. The Criminal Procedure Code does not specifically provide for the reversal of a Court's order made under section 522 when the conviction in consequence of which such order is made is set aside. On that point, however, there is a decision by a Full Bench of the Punjab Chief Court, published as Kirpal Singh v. Labhu 5 P R (Cr.) 1895 (F B) where the facts were that an order of conviction by a Magistrate under section 448, Indian Penal Code, and a consequent order under section 522, Criminal Procedure Code, restoring possession of the immovable property in the case to the complainant were set aside by the Chief Court, but when the acquitted persons applied to the Magistrate for restoration of possession, their application was rejected on the ground that the Code contained no provision to authorise the action sought. It was held by the Full Bench that a Criminal Court has inherent power to restore possession of property to a party which was dispossessed by its order under section 522, Criminal Procedure Code, when that order is sat aside by a superior authority. In the absence of specific provision empowering a superior Court to set aside an order under section 522, Criminal Procedure Code, power to make such an order can only be derived from section 439 of the Code. This section provides that in respect of any case dealt with in a subordi nate Court, which has been called for by itself or has been reported for orders or which otherwise comes to its knowledge, the High Court may exercise any of the powers which it possesses under sections 423, 426, 427 and 428 of the Code as a Court of Appeal, and may also do what it cannot do as a Court of Appeal, namely, it may direct tender of pardon to a person who is supposed to have been concerned in or privy to any offence which is undergoing trial at the time, and in a case where a sentence has been imposed upon conviction, it may enhance the sentence. All these powers are ex pressly made exercisable by the High Court in its discretion. The underlined words are important, for they have the effect of altogether removing any obligation from the High Court to act in a particular Sections 423, 426, 427, 428 and 338 are all couch in permissive terms so as to provide that the Court may do one or more of a number of specified acts in relation to a case before it. It is, however, obvious that these words are not to be construed in these sections as words importing absolute discre tion, but on the other hand, they must be understood merely to confer a power, which must be exercised if the circumstances calling for such exercise are shown to exist. Thus, where section 423 provides that in an appeal from conviction, the Court may reverse the finding and sentence and acquit or discharge the accused, no one could be heard to contend for a moment that merely because no element of compulsion appears in the words employed, an Appellate Court could decline to set aside a conviction and sentence and acquit the accused even if it were established to its satisfaction that the accused was not proved beyond reasonable doubt to be guilty. To take another example, when section 423 empowers an Appellate Court to make any consequential or incidental order, that may be just or proper, it necessarily imposes an obligation upon a Court which is satisfied in the case before it that a certain consequential or incidental order is just or proper, to make such order. But any such compulsive effect or obligation is entirely removed in relation to the exercise of similar powers under section 439 of the Code by the addition of the words "in its discretion". It is thereby made perfectly plain that the High Court is entirely unfettered in its choice whether or not to exercise any power conferred upon it by section

439. It must be assumed that the intention of the Legislature was to confer upon the High Court complete and unqualified discretion whether or not to exercise one or more of a specified number of powers, in cases falling within section 439, Criminal Procedure Code. It is hardly necessary to emphasize how important it is for this Court to avoid laying down any rule which will have the effect of circumscribing the discretion so conferred upon this Court. No doubt, the Court may, in deciding cases falling within section 439, express its opinion with reference to particular circumstances arising in each case, regarding the weight to be attached to such circumstances in relation to the exercise of its discretion. Such cases would, however, be merely illustrative, and no one could be heard to contend that any such case could have the effect of limiting the circumstances which in relation to cases of any parti cular kind, would alone justify the exercise of the Court's discretion in a particular way, or, to take the converse case, the Court could not, in exercising its powers under section 439, without doing violence to the language and purpose of the Legislature, lay down that in a particular type of cases, where certain specified circum stances were established, the Court would have no option but to exercise its discretion in a particular way. This is not to say that in a given case, the circumstances which impelled the Court to act, in the exercise of its discretionary power, in a particular way, may in its view be so strong that to act otherwise would not be judi cially possible, and in such a case, the Court may express itself as being bound to act in such particular way, or as having no alter native except so to act. The employment of such language could not be construed as being of binding effect for all future cases; it would only serve to indicate, for the particular case, the marked preponderance of weight carried by the circumstances in favour of the course adopted. The words could not be construed so as to import into the application of section 439, anything which operates to bind the Court to act in any future case, in the same way, but in every such case arising later, it would still be the duty of the Court to apply its mind to every aspect of such case, and notwithstanding anything that has been said in the previous case to decide for itself whether or not the justice of the case requires that any power available to the Court should be exercised. It is axiomatic that, where an unqualified discretion falls to be exercised by a Court, no previous case can be of binding effect. Authorities to this effect contained in the Indian decisions could be cited in great number, but for the purpose of shortening the matter, I propose to cite only the classic example whereby in the highest Court in England, the authority and duty of a Court to exercise its discretion, where this is allowed to it without quali fication by the Legislature, unfettered by any previous decisions, was vindicated and a course of decisions which had tended to curtail such discretion was expressly departed from I refer to the published cases relating to the power conferred by the statute law relating to divorce which is now represented by section 4 of the Matrimonial Causes Act, 1937, and provides that "the Court shall not be bound to pronounce a decree of divorce and may dismiss the petition if it finds that the petitioner has during the marriage been guilty of adultery." A discussion of the subject sufficient for the present purposes is found in the speech of Viscount Simon, L. C., in the case Blunt v. Blunt, L. R. 1943 A. C. 517, and I cannot do better than to reproduce it as it stands. After citing the relevant part of section 4 of the Matrimonial Causes Act, 1937, which has been reproduced above, the learned Lord Chancellor proceeded to remark as under:‑ " Previously, the ecclesiastical Courts had maintained the rule that a party seeking relief must come with clean hands ***. For many years after 1857, the cases in which the Court exercised its discretion to grant a decree were strictly circumscribed. Lord Penzance in Morgan. v. Morgan, L R. (1869) I. P. and v. 644. 646 mentioned certain examples: cases like Joseph v Joseph and Wensele (1865) 34 L. J. (P. M. and A.) 96, where the respondent had induced the petitioner to believe that she was dead and the petitioner in this belief had married again; Coleman v. Coleman, L. R. 1866) I. P. and D. 81, in which the petitioner satisfied the Court that her husband had compelled her to live a life of prostitution; and possibly: cases in which an act of adultery of the husband had: been condoned by the wife and in no way conduced to her subsequent misconduct. This last would be following the rule that had prevailed in the ecclesiastical Courts. Lord Penzance added that there probably were other classes of cases which called for a favourable exercise of the Court's powers, but he deprecated a loose and unfettered discretion' exercised as a free option subordinated to no rules', and added that `the duty of reducing its exercise to method devolves upon the Court'. The scope within which the divorce Court has thought it right to exercise a favourable discretion has been greatly widened since Lord Penzance's pronouncement, and in contrast with his view it has for long been the practice to regard the discretion as `unfettered'. It is impossible to lay down strict rules for its exercise, and to attempt to do so would really be to restrict the liberty conferred by the language of the statute. I would adopt the view of the Court of Appeal, expressed a quarter of a century ago, that `where Parliament has invested the Court with a discretion which has to be exercised in an almost inexhaustible variety of delicate and difficult circumstances, and where Parliament has not thought fit to define or specify any cases or classes of cases fit for its application, this Court ought not to limit or restrict that discretion by laying down rules within which alone the discretion is to be exercised, or to place greater fetters upon the judge of the Divorce Division than the legislature has thought fit to impose': Wickins v Wickins, L. R. (1918) P. 265, 272, per Swinfen Eady M. R. The utmost that can be properly done is to indicate the chief consider ations which ought to be weighed in appropriate cases, as helping to arrive at a just conclusion". With slight alterations relating only to the difference of subject the observation of Swinfen Eady M. R. is applicable verbatim to section 439, Criminal Procedure Code. The Indian Legis lature has expressly given complete discretion to the High Court to act under this section in a certain number of specified ways, and such action may be required to be taken in "an almost inexhaustible variety of delicate and difficult circum stances" arising out of the entire field of human relationships in those aspects which attract the jurisdiction of the criminal Courts. I am fully persuaded that this Court is not entitled to lay down any rule, applicable to any class of case, which would have the effect of providing that the discretion conferred upon this Court by section 439 is to be exercised within such rule only, and were even possible for the Court to lay down any such rule, I am clearly of the opinion that it should not do so but should leave the discretion permitted by the section as free to be exercised by the Court, whenever the occasion arises, according to the justice of the case as the Legislature obviously intended it to be. Bearing these considerations in mind, I now proceed to examine the authorities upon which the petitioner's prayer is founded. There is first of all the Full Bench decision of the Punjab Chief Court to which reference has already been made. As has been seen, the decision in that case is not directly relevant to the present case, but the Full Bench made certain obser vations, which are undoubtedly useful to the petitioner. These are to the effect that on general principles, it should follow as a logical consequences of the reversal of a conviction, by reason of which the convict was deprived of possession of property by means of a Court order, that such order should be reversed and the property restored to the acquitted person; a person who gains possession of property in consequence of an order which is liable to be set aside by superior authority takes possession subject to the decision of such authority; in fact, a Magistrate's order for dispossession under section 522, Criminal Procedure Code, is to be regarded as a conditional one, and the property itself to be in the custody of the Court till the order was confirmed or became final. Finally, the Full Bench remarked that, if the order were not confirmed, the parties would be relegated to the previous position " and the Court is bound to exercise its powers to restore them to that condition". Decisions of the Punjab Chief Court are not of binding effect for this Court, but are entitled, like all decisions of superior Courts, to the utmost respect. The observations of the Punjab Chief Court reproduced above were, in the context of the matter which was before them for decision, obiter in their nature, and their effect, even were the decision binding upon this Court, would at the best be persuasive. Speaking with great respect, it seems to me that these observations, if they are to be understood to lay down a rule by which, if the specified cir cumstances were shown to exist, the Court was to regard itself as bound in any future case, cannot be regarded as laying down the law correctly They have, however, been relied upon in two later decisions by Single Judges of the Lahore High Court. In Lal Chand v. Dasotidhi 1523 A I R (Lah.) 15, which was a revision petition by a complainant seeking reversal of an appellate order of the Sessions judge acquitting the accused and at the game time setting aside an order for delivery of possession to the complainant which had been made under section 522, Criminal Procedure Code, by the trial Court, the learned judge referred to Kirpal Singh v. Labhu 5 P. R. (Cr.) 1895 (F. B) as laying down that " where a conviction is set aside the order under section 522 resulting therefrom must also be set aside" and went on to say that since the order under section 522 arose from and depended entirely upon the existence of the con viction, once it is held that no offence had been committed every consequence arising from the commission of the offence must automatically cease to be. Raghunath v. Raghu nath Sahai (1929) 118 I. C. 392, was a case where a Magistrate had convicted the accused persons and by order under section 522, Criminal Procedure Code, granted possession of the house into which the trespass had been committed to the complainant; on appeal, the case was remitted for re‑trial and eventually the accused were acquitted. They made an application to the High Court for restoration of possession to them on the simple ground that the conviction in consequence of which possession had been given to the complainant had been set aside and the learned Chief Justice Sir Shadi Lal, while observing that "the equities of the case are entirely in favour of the complainant" follow ing Kirpal Singh v. Labhu 5 P. R. (Cr.) 1895 (h. B.), and Lal Chand v. Dasondhi 1923 A. I. R. (Lah.) 15, held that he had no alternative but to hold that the possession of the house should be given back to the accused" upon the consideration that "the conviction which alone could sustain the order under section 522, has been set aside," That is the course of decisions upon this particular point as it appears from the published rulings of this Court and the question before this Bench is whether, in the case which is now before us for decision, these authorities should be followed. Both these decisions by learned Single Judges of this Court appear to take the view that in an application of' the present kind which clearly lies under section 439, Criminal Procedure Code, this Court is bound to act in a particular way where certain circumstances are present, namely, that an accused person has been convicted of an offence involving use or slow of criminal force or criminal intimation, the convicting Court has ordered delivery of possession of a certain property in respect of which the offence was committed to the party thereby dispossessed, and further that such conviction has been set aside; these authorities lay down on the footing of a logical proposi tion, that the Court should exercise its discretion in favour of the acquitted person and restore possession to him, notwithstand ing any circumstances that may exist in favour of the com plainant. The complete facts in these earlier cases are not ascertainable from the published judgments, and in the case of Lal Chand v. Dasondhi 1923 A. I. R. (Lah.) 15, there is no mention of the strength or weakness of the complainant's claim to possession. In Raghunath v. Raghunath Sahai (1929) 118 I. C. 392, however, it was said that the equities were in the complainant's‑favour. In the present case, as I have remarked at the outset of this judgment, the petitioner who is the acquitted person has no claim of right or title whatsoever, in respect of the property of which he seeks to be placed in possession and on the other hand, the complainant is undoubtedly the title‑holder in respect of the property, and as such entitled to possession thereof. It is true, that, while acquitting 'the petitioner and his co‑accused Ahmad Din, b he learned Session's judge came to the conclusion that the evidence regarding the ejectment of these persons by a Court officer in execution of Mahboob Ilahi's decree was unsatisfactory, but while this opinion was undoubtedly relevant to the question whether or not Abdul Ghani and Ahmad Din were guilty of the offence of trespass in respect of the house, even as a finding it cannot have effect of reversing all the proceedings which were formally taken on the civil side in execution of Mahboob Ilahi's decree. Moreover, on the very day that the learned Sessions judge accepted the appeal of Abdul Ghani and Ahmad Din and acquitted them, Mahboob Ilahi filed a suit (suit No. 536 of 1947 in the Court of Khan Ziaullah Khan, Additional Sub‑Judge, Ist Class, Sialkot) against these persons for a permanent injunction to restrain them from inter fering with his possession of the house in dispute, and for a declaration that he was the owner of the house. The suit was decided on the Ist December 1947, about seven months after the filing of the present petition in this Court, and a copy of the judgment has been placed on the record. The issues which arose in the case were whether the plaintiff was the owner of the suit house, whether, if he were the owner, he was not entitled to the relief claimed and whether the question of ownership was res judicata. At a later stage, however, the de fendants gave up the contest altogether and it was merely argued on their behalf that the plaintiff had no cause of action as every matter which had been placed in issues had already been decided by competent authority; it was also said that the de fendants had never threatened to deprive the plaintiff of posses sion of the property. The Court overruled the defendants con tentions and holding that the plaintiff had a cause of action, awarded him a decree declaring that he was owner and in possession of the property, and at the same time issuing a permanent injunction restraining the defendants from interfering with the plaintiff's possession. It does not appear that any appeal was taken before any Court in Sialkot against this decree and its existence constitutes an additional factor of which account must be taken in assessing the circumstance's of the case for the purpose of exercising the discretionary power which the petitioner has invoked. This presumably final decision of a Civil Court declaring the plaintiff to be the title‑holder and restraining the defendants (one of whom, is the petitioner) from interfering with the plaintiff's possession of the house serves to distinguish the present case from each of the precedent cases. Taking this circumstance into account along with all the other circumstances of the present case, I am clearly of the opinion that there is nothing which should sway in favour of exercising any discretion under section 439, Criminal Procedure Code, so as to put the petitioner back into possession of the disputed house. I would accordingly dismiss this petition, and with regard to the two precedent cases cited above, I would observe, speaking with the greatest respect; that if these cases are understood to lay down that any logical considerations compel a Court to put back into possession of any immovable property a person who was convicted of an offence involving use or show of criminal force or criminal intimidation in respect of such property, and who was deprived of its possession following such conviction, by and order under section 522, Criminal Pro cedure Code, merely by reason of such person having been acquitted of the offence then, to that extent these decisions do not, in my opinion, lay down good law. ABDUL RAHMAN J.‑

I concur. A.H. Petition dismissed.