PLD 1952 Dacca 261 (PLP)

D. C. Roy for Petitioners. Nemo for the Crown. ISPAHANI, J.‑

This rule was issued calling upon the District Magistrate of Tippera to show cause why the order of conviction of the petitioners under section 447 of the Pakistan Penal Code and the sentence to pay a fine of Rs. 25 each, in default, to suffer rigorous imprisonment for ten days each passed by the Magistrate and upheld by the Sessions judge, should not be set aside. The prosecution case is that the complainant (P. W. 1,) was possessing the two disputed plots, namely, plot No. 103 of Mauja Lezi Koirapur, police station Daudkandi, in the district of Tippera which belonged to his agnatic relation Satisb who lived in Calcutta and plot No. 108 of the said Mauja belong ing to his other relations Girish, Upendra and Surendra who also lived at Brahmanbaria for the last 8 or 10 years. It was alleged that on the 7th Poush, 1357 B. S., corresponding to the 23rd December 1950, the petitioners dispossessed him from those lands by forcibly ploughing up the same. The defence contended that the disputed lands belonged to Girish Banka and Rohini and that the petitioners had pur chased the same from them for Rs. 700 in Chaitra, 1356 B. S, and had been in possession of the same since then. The learned Magistrate did not accept the defence version and convicted and sentenced the petitioners, as stated above. His finding is that the petitioners forcibly took possession of the disputed land and ploughed up the same. Mr. D. C. Roy, appearing for the petitioners has urged that there is no finding of the learned Magistrate that the petitioners committed criminal trespass with one of the intents mentioned in section 441 of the Pakistan Penal Code and consequently their convictions and sentences cannot be upheld. We have been referred to the case of Arjad Ali and another v. The Crown 3 D L R 13, which was decided by my learned brother and myself and wherein it was held "Every unlawful entry does not amount to criminal trespass. The essence of section 441, Pakistan Penal Code which defines criminal trespass is the intent with which the entry is made and in every case the intent must be either to commit an offence or to intimidate, insult or annoy any person in possession of such property. The section does not penalise unlawful entry with any other intent, such as mere intent to take possession. The Court must come to a clear finding that the entry was with one or more of the intents mentioned in section 441, Pakistan Penal Code. Failure to come to such finding amounts to a failure to decide a vital point in the case." The principles enunciated in the reported case apply to the facts of the present case and in the absence of any clear finding as regards the intent of the petitioners, we are unable tol uphold their convictions and sentences. The result, therefore, is that the rule is made absolute and we set aside the order of Mr. A. Khaleque, Magistrate, 1st Class, Commilla, dated the 28th May 1951, convicting the petitioners under section 447 of the Pakistan Penal Code and sentencing each of them to pay a fine of Rs. 25 in default to suffer rigorous imprisonment for ten days each. IBRAHIM, J.‑

I agree. We have already held in the case of Arjad Ali and another v. The Crown 3 D L R 13, that the essence of the section 441, Pakistan Penal Code is the inten with which the entry is made and it is that intent that dis tinguishes a criminal trespass from a civil trespass. Unless the dominant intent is to commit any offence or to intimidate, insult or annoy, the trespass does not amount td a criminal trespass. In Sinnasamy Selvanayagam v. The King 55 C W N 1, which was a case under section 427 of the Ceylon Penal Code which is in the same terms as section 441 of the Pakistan Penal Code, their Lordships of the Privy Council held that "Entry upon land, made under a bona fide claim of right, however, ill‑founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoy ance to the occupant. To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or‑to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent." It is not clear from the finding of the learned Magistrate in this case that the dominant intent with which the entry was made was either to insult, intimidate, annoy or to commit any offence. The result, therefore, is that the convictions and sentences cannot be upheld and must be set aside. A. H. Rule made absolute.