1968 SCMR 286 (PLP)

S. A. RAHMAN, J.-The respondent Alauddin Chowdhury, was convicted under sections 180 and 448 of the Pakistan Penal Code and sentenced to suffer rigorous imprisonment for 15 days and to pay a fine of Rs. 800 or in default to suffer rigorous imprisonment for 4 months further for the former offence and to pay a fine of Rs. 200 or in default to suffer rigorous imprisonment for one month, for the latter offence, by a Magistrate First Class, Patuakhali. Out of the fine, if realised, it was directed that the complainant Aminuddin Chowdhury should get Rs. 500 as compensation. On appeal, the learned Sessions Judge, Bakerganj set aside the convictions and sentences and acquitted the accused of all charges. The High Court declined to interfere with the order of the appellate Court in revision. The appellant Aminuddin Chowdhury obtained special leave to appeal from this Court, as it was contended on his behalf that the approach of the appellate Court was erroneous in this case. The complaint of the appellant that he and his family had been forcibly ousted from posses sion of a house jointly occupied by him and the accused and that in addition two trunks, containing valuable property of the appellant, were removed by the accused. The learned Sessions Judge commented on the fact that the trial Magistrate had omitted to say with what intent the respondent had committed the alleged trespass and this vitiated his judgment, so far as the charge under section 448, P. P. C. was concerned. As a further consequence of this, it was held, that the charge under section 380, P. P. C. would also fail. There was no discussion of the relevant evidence in the appellate judgment. We have now been taken through the evidence on record by Mr. Muhammad Fazlul Karim, on behalf of the appellant. Mr. T. H. Khan appears for the State and supports the appeal.The respondent accused is present in person, but is un-represented. The defence of the respondent was that the property in question belonged solely to him and that a false case had been brought in order to put pressure on him not to eject the appellant from a shop of the respondent which he had taken on rent from him. The prosecution story was sought to be supported in the trial Court by the testimony of six witnesses. The first witness was Aminuddin Chowdhury himself. He deposed that he was away to Dacca on the day of occurrence? that his son, Mursheduddin Chowdhury (P. W. 2), had conveyed to him an eye-witness account of the affair and that he then came to Patuakhali, verified facts from the other witnesses and then lodged a complaint in the Court, It may be noted however, that the occurrence is alleged to have taken place on the 30th June 1963 whereas the complaint was submitted to the Court on the 13th August 1963. This considerable delay in approaching the Court remains unexplained on the record. Moreover, Aminuddin Chowdhury's version was that Alauddin, the accused who is his younger brother, had erected this house and that it stood in his name alone, but that he was allowed to reside on the ground floor while Alauddin occupied the first floor. He admitted at the same time that there were two doors in the verandah of the ground floor, that a shop of the accused adjoined the hut to the north and that sometimes the accused used to go to his shop through these doors. The version of the father is contradicted by the statement of the son to the effect that on one side of the ground floor every day they used to take their meals, the other side being in the occupation of the accused who had their utensils and meatsafe there. Neither the father nor the son gave details of the articles in the trunks which were said to have been carried away by the accused and his men, after Murshed-ud-Din was barred entrance to the house by the erection of a fence and under threat of being attacked by a dao. Mursheduddin denied that he and his father used to take their meals daily with Badsha Mia, P. W. 4. another tenant of the accused in respect of a shop. He alleged that they took their meals in a hotel. This does not appear to be consistent with their allegation that they were occupying the ground floor of the premises in question with their family. The complainant's wife was said to have died, but he had daughters from her and there is nothing in the evidence to show where the daughers were at the relevant time. The third witness'for the prosecution was Moslemuddin, a Mukhtar who practised at Patuakhali. He stated that the accused 41auddin closed the passage from the tailoring shop of P. W. 1 on his house, by erecting as tin fencing despite the protest of Mursheduddin. He saw the accused taking away one trunk from the dwelling hut which, according to P. W. 2, belonged to them. He further told him that another trunk had- been similarly taken away by the accused. In cross-examination of this witness, it was elucidated that his wife is named Nur Jahan Begum. He denied that there was any dispute'--between his wife and the accused in respect of the construction of the D. M. T. shop, now occupied as tenant by P. W. 1. It appears from the statement of D. W. 5, Abdul Wajid, head clerk of the Municipal Officer, Patuakhali, however, that when the accused applied for permission to erect a hut, Nur Jahan Begum, wife of Moslem Mukhtar had objected to it. Moslemuddin Ahmad therefore, does not appear to be a disinterested witness. Badsha Mia (P. W. 4), claims to bean eye-witness or the occurrence as he went to the spot on hearing an alarm. He saw accused Alauddin and others, removing a trunk from the dwelling hut and was told that another trunk had been removed earlier, He further testified that the accused did not allow P. W. 2 to go to the hut and barred his entrance with a fencing. It transpires from his cross-examination that this witness had very strained relations with the accused. He is his tenant in a shop but had not paid him rent for the last three years. He admitted that the accused wanted to eject him from the shop and there were proceedings under section 107 of the Code of Criminal Procedure started between the parties. It is not possible to place reliance on the testimony of this witness in the circumstances. P. W. 5, Rustum Pandit, said he was a neighbour of the parties and that be was informed by P. W. 2, about noon time, of the occurrence. He was not himself an eye-witness. The sixth witness, Abdul Jabbar appears to be an associate of Moslemuddin Mukhtar, as be admitted in his own cross-examination. The two had been involved together in some litigation with a Fishery Officer. He further acknowledge that he wanted to hire a hut from Alauddin, but he refused to give it to him. This evidence is not at all impressive and considering the inordinate delay that intervened between the alleged incident and the complaint in Court, it would be difficult to hold on the basis of this evidence, that the appellant and his family occupied the ground floor of the hut in question at the relevant time. The principal support for the prosecution version was, however, said to be the fact that in 1961 there had been criminal litigation between the complainant and the accused which was compromised and the accused had promised to live with his brother, in the same, but, peacefully thereafter. That is, however past history and it does not necessarily follow that the promise given in 1961 still held good till 1963. In his defence the accuse-drespondent examined Mujibur Rahman, the Chairman of the Patuakhali Town Committee who stated that the hut in question had been 'constructed by Alauddin alone and that he resided with his family in it. it is interesting in this connection to observe that on the complainant's own admission, Alauddin had been in this town for the last 25 or 26 years, but that he himself had gone to that place some 4 years back. Mujibur Rahman appears to be an independent and disinterested witness in the case. His testimony is further corroborated by the statement of D. W. 2, Kanchan Mia, who made it clear that the complainant resided only in a shop, known as D. M. T. Shop, as a tenant of the accused. Colour is lent to this statement by the admission of r, W. 2, Mursheduddin, that on the night preceding the occurrence, he had slept in this shop. To the same effect was the statement of D, W. 3, Abdul Kadar, and D. W. 4, Moniruddin Mirdha. After a review of this evidence on record, we are not satisfied that the story of the complainant and his family occupying the ground floor of the premises in dispute, was correct, In all Probability, as the learned Sessions Judge has remarked, there was a dispute about sharing of the property between the brothers and this dispute has been attempted to be settled by bringing this complaint, . No good ground has been made out for interference with the order of acquittal in this case and the appeal is dismissed. Appeal dismissed.