P L D 1959 (W (PLP)

2. The facts of the case, which were not disputed before me, are as follows. Subedar Feroze Khan (P. W. 3) resident of village Bokan claimed to be the owner of a house in village Nathia Alam Sher which was in possession of Muhammad, brother of Ghulam Nabi petitioner. He filed a suit for possession of the said house against Muhammad in the Civil Court at Gujarkhan and obtained a decree. In the course of the execution of the decree, Ghulam Nabi petitioner resisted the delivery of possession to the decree‑holder and alleged that he held the property in his own right and was not bound by the decree passed against his brother Muhammad. Feroze Khan thereupon filed an application under Order XXI, rules 35 and 97 of the Code of Civil Procedure for the actual delivery of possession. Ghulam Nabi petitioner was summoned by the Court and he pleaded that he was not liable to be ousted from the house as it belonged to him. By his order dated the 10th of March 1958 (Ex. P. C.), the learned Civil Judge held that Ghulam Nabi was not entitled to occupy the house and was liable to be ejected in execution of the decree. Accordingly the warrant for possession (Ex. P. D.) was issued whereby the bailiff was directed to deliver actual possession ' of the house to Feroze Khan. On 12‑3-1958, Lal Khan Bailiff (P. W. 2) executed the said warrant for possession. He broke open the lock of the house and delivered its possession to Feroze Khan in the presence of the respectables of the village including ;Eigkam Dad Lambardar (P. W. 4). He made his report (Ex. P: 'D/1) on the warrant (Ex. P. D.). Feroze Khan, after occupying the house for some time, locked the house and delivered its key to his uncle Buta and went back to his own village. On the 24th of March 1958, Ghulam Nabi petitioner broke open the lock of the house and forcibly took possession of it. One Bagh Husain informed Feroze Khan that Ghulam Nabi petitioner along' with Muhammad and Mst. Resham Bibi had forcibly occupied the house. On the receipt of this information he went to village Nathia Alam Sher and found the lock of his house broken. He also found that Ghulam Nabi along with Muhammad and Mst. Resham Bibi had taken possession of the house. He asked them to relinquish the possession of the house and when they refused to do so he filed the complaint (Ex. P. E.) in Court on the 27th of March 1958. In support of the complaint a number of witnesses were examined. The petitioner denied the allegations of the comp lainant and, pleaded that he had entered the house on the 14th of March 958 and not on the 24th of March 1958 as alleged by the prosecution. He, however, admitted that he had filed an uzardari during the execution proceedings of the decree for possession passed in favour of Feroze Khan P. W. and that it was dismissed. He produced some witnesses in his defence. The learned Magistrate, after carefully reviewing the evidence on the record, accepted the prosecution case as true and convicted and sentenced the petitioner as mentioned above.

3. The learned counsellor the petitioner strenuously argued that at the time of the alleged occurrence. Subedar Feroze Khan complainant was not physically present in his house and therefore, the petitioner cannot be held liable under section 448 of the Pakistan Penal Code, because he had not entered into the house with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. The finding of the learned Magistrate is that he had entered into the house with the intention of annoying Subedar Feroze Khan. Therefore, the only question which requires determination in this revision petition is whether it has been established that the petitioner had the intention of annoying Feroze Khan at the time when he entered into the house in question. Intention which is a state of mind cannot ordinarily be proved as a fact; it can only be inferred from the facts and circumstances established in a particular case. There is no divining rod by which one may locate the intention. In the present case, there can be no manner of doubt that the petitioner's claim to remain in occupation of the house was reject ed by the Civil Court on 10th March 1958. The actual possession of the house was given by the bailiff to the complainant on 12th March 1958. Some days later the petitioner broke open the lock of the complainant's house and took possession of it. With what intention did he enter the house ? Did he enter the house in the exercise of a bona fide claim of his right. In view of the circum stances of the case this plea is not available to the petitioner. His claim having been rejected by the Civil Court in the course of the execution proceedings, he could not have taken the law in his own hands instead of seeking his remedy as provided for in rule 103 of Order XXI of the Code of Civil Procedure, which reads as follows :‑ "Any party not being a judgment‑debtor against whom an order is made under rule 98, rule 99 or rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject, to the result of such suit (if any), the order shall be, conclusive." It will thus be seen that the only remedy which was available to the petitioner was to bring a regular suit to establish his claim and until he had succeeded in that suit, the order passed by the Civil Judge on 10th March 1958 was final and conclusive. It therefore does not lie in the mouth of the petitioner that he had taken possession of the house in the exercise of a bona fide claim of his right.

4. What else could have been the intention) of the petitioner in breaking open the lock and taking possession of the house? The complainant had obtained actual physical possession of the house on 12th March 1958. And twelve days later, the petitioner whose claim to the occupation of the house had been negatived by the Civil Court, had broken open the lock, and taken possession of the house. Can it be said that he had no intention of causing annoyance to the complainant? A person is presumed to intend the inevitable and natural consequences of his act. If the matter were to be judged in accordance with the standard of a reasonable man there can be no two opinions about it, that such a trespass will be deemed to have been committed with the intention of disturbing the reasonable peace of the mind of the complainant Annoyance must be taken to mean annoyance that would generally and reasonably affect an ordinary person'.

5. The question which now remains to be determined is whether the actual presence of the complainant at the time of the alleged trespass was necessary to constitute the offence of criminal trespass? The objection seems to be based on the view, that if the person to be annoyed is not present on the premises, then the offender cannot be saddled with the intention of annoying such a person. Section 441, P. P. C. requires that the trespasser should enter into or upon property in the possession of another, with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. The offence of house tres pass means criminal trespass as defined in section 441, P. P. C., in respect of a house. The first condition therefore is that the pro perty upon which trespass is committed must be in the possession of another. Does it mean that the person in possession must be physically present on the premises at the time of the alleged tres pass ? The language used in the section does not warrant such a conclusion and I see no justification for placing such a narrow and limited construction upon it. It will not be in consonance with the intention of the framers of the Penal Code. If the inten tion had been to lay down that the person in possession of the property should be physically present on the premises, then it could have been said so expressly. To accede to the contention of the learned counsel for the petitioner would be to read into section 441, P. P. C. limitations which are not to be found there. It does not stand to reason at all that the framers of the Penal Code did not intend to protect the interests of the owners of the lands who are not expected to be present at all times upon their lands. Did they intend to lay down that trespassers upon lands in the absence of their owners would not be liable for this offence, and‑the only remedy open to the owners would be to file a civil suit. And even if they succeeded in ejecting such a trespasser, through a civil Court, they would be exposed to the same risk the next day, because the owners of lands cannot be expected to be, present on their lands day in and day out. The same reasoning applies with equal force in the case of houses and shops from which the owners are expected to be absent now and then. If the contentions of the learned counsel for the petitioner were to be accepted, no owner of a house, shop or land will be safe from such trespassers. Almost similar words are used in the definition of `theft' given in section 378, P. P. C. One of the factors which is essential to constitute theft, is the taking of the movable property out of the possession of another. Stephen in Article 401 of the Digest of Criminal Law (Seventh Edition) says : "A movable thing is said to be in the posses sion of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need". In the absence of any definition of the word `possession' in the Penal Code, the definition of `possession' given by Stephen in respect of moveable property can be usefully employed with regard to possession of immovable property. I am, therefore, inclined to hold that by the use of the words `property in the possession of another', what is really meant is that the person concerned should be so situated with respect to it that he has the power to deal with it as owner to the exclusion of all others. These words do not mean that the person in possession of the property must be physically present on the premises at the time of the trespass.

6. The argument that in the absence of the person concerned, the offender cannot intend to annoy the person in possession of the property is equally devoid of force. The essence of the offence of criminal trespass is the intention with which the trespass is com mitted. As soon as trespass is committed upon property in the possession of another with one of the intents specified in the section, the offence of criminal trespass is complete, irrespective of the fact whether in fact any offence is committed or any person in possession of such property is intimidated, insulted or annoyed. It is the intention of the trespasser which is material for determin ing the guilt and not the consequences of the trespass.

7. In support of his contention, however, the learned counsel for the petitioner placed reliance on Satish Chandra v. The King (A I R 1949 Cal. 107), in which certain rulings of the Madras and Allahabad High Courts have been referred and it has been held by the learned Judge that mere constructive possession is not sufficient. The facts of that case are clearly distinguishable inasmuch as the learned Judge has held that the house in respect of which the offence was said to have been committed was deserted and there was really no one in posses sion of it.

8. The contrary view has been expressed in the case of Ghulam Ahmad and another v. Emperor (A I R 1938 Lah. 848) where Bhide, J. repelled the contention raised on behalf of the petitioners in that case, that as they had taken possession of the house in the absence of the complainant, they had no such intention as was necessary for an offence under section 448, I. P, C. While dealing wish this conten tion the learned Judge observed as follows :‑ "The petitioners must have known that their conduct was bound to annoy the complainant who was admittedly in posses sion and legally they must be presumed to have the intention to `annoy' at any rate". To the same effect is the case of Baldeo Prashad and others v. Emperor (A I R 1934 Oudh 281). Similarly in Bishu Mukherjee v. Haji Zaheer Khan (P L D 1955 Dacca 79) it has been held by T. H. Ellis the then Acting Chief Justice of the Dacca High Court that a trespasser who forces an entrance into the house in the temporary absence of the complainant from the house commits an offence under section 448, P. P. C. He has observed as follows:‑ "It would indeed be a dangerous precedent if it were held that in the temporary absence of an owner who takes his wife for medical attendance at the time of pregnancy a trespasser who has forced an entrance into house has not committed any criminal offence. That force was used is clearly proved by the fact that the premises was kept under, lock and key and the locks were broken open". In Subhana v. State (A I R 1954 All. 193) after reviewing the earlier decisions it has been held that the essence of the offence (441, I. P. C.) is the intent in committing the offence and not the presence or absence of the person against whom that intent is held and that intention to annoy may be there in spite of the fact that the person against whom that intention is held may not be actually present at the time of the entry. From the above analysis of the case‑law on the subject it clearly emerges that the actual presence of the person concerned on the premises is not essential to constitute an offence under section 441 or 442, P. P. C.

9. In the light of what has been stated above, I am of the view, that the petitioner had the requisite intention of causing annoyance to the complainant at the time when he broke open the lock of the complainant's house and took possession of it. The absence of the complainant from the premises at the time of the alleged trespass has no bearing in determining the question whether an offence has been made out under section 448, P. P. C.

10. For the aforesaid reasons, I am satisfied that the petitioner has been rightly convicted under section 448, P. P. C. The sentence in the circumstances of the case errs on the side of leniency. I accordingly dismiss this petition. K. B. A./A. H. Petition dismissed.