P L D 1952 Dacca 30 (PLP)

AFZAL, J.‑

This application in revision is directed against the order of the learned First Additional Sessions Judge of Dacca, dated the 30th November, 1950. The petitioners have been con victed by Mr. M. A. Khaleque, Magistrate, 1st Class, Dacca, of having committed house trespass, under section 448 of the Pakis tan Penal Code and sentenced to pay a fine of Rs. 50, in default to undergo rigorous imprisonment for two months. The prosecution case is that on the 12th December, 1948, the petitioners forcibly broke open the locks of .the complainant's godown at 46, Mitford Road, which was formerly numbered as 217‑1, Mitford Road, P. S. Dacca, Kotwali, in Ward No. 7 of the Dacca Municipality. They trespassed into the said godown of the complainant and started a book binding shop in that godown. The petitioners took possession of the godown during the absence of the complainant from Dacca. On return of the complainant to Dacca, he came to know that the petitioners have wrongfully taken pos session of the godown in question. The case for the defence is that the disputed premises is among the Wakf properties of Nawab Shaista Khan and that the peti tioner Mirza Momtaz Ali Khan is the Mutwalli of the said Wakf Estate. The disputed premises was leased out to petitioner Ishaque Khalifa and that he was in legal possession of the said shop since February, 1948. It is not disputed that the occurrence took place during the complainant's absence from Dacca and that the premises in ques tion was abandoned at the time the petitioners occupied it and that it was on return of the complainant to Dacca that he came to know about the occurrence of trespass from the witnesses he has examined on his behalf. Mr. Huda who appears in support of this petition strenuously argues that the ingredients constituting the offence of trespass have not been brought home to the petitioners. He claims that there can be no criminal trespass unless "intent as specified in the section is preset." He refers to section 442 of the Pakistan Penal Code which defines house trespass. Section 442 of the Pakistan Penal Code runs as follows: "Whoever commits criminal trespass by entering into or remaining in any building, tent or vessels used as a human dwelling, or any building used as a place for worship, or as a place for the custody of property, is said to commit house trespass." He, therefore, contends that mere trespassing into the complainant's godown does not constitute an offence of house tres pass within the meaning of section 442 of the Pakistan Penal Code. The criminal intention and other ingredients specified in section 441 of the Code must be present in order to constitute the offence of house trespass. He argues that in this case at best the pro secution has proved that the petitioners took unlawful possession of the godown in question. This in itself, he contends, does not amount to criminal trespass or house trespass. I have gone through the record and I find that there is no evidence to show that the petitioners intended to commit the offence of house tres pass as the house at that time was abandoned and the property in dispute was claimed under a bona fide right as belonging to or in occupation of the petitioners. The facts proved in the case do not in my opinion, justify a conviction under section, 448 of the Pakis tan Penal Code. In the case of Satish Chandra Modak v. The King 53 C. W. N. 402, it was held that in order to constitute the offence of house trespass the accused must enter into 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 It was further held in that case that an unlawful act which does not amount to an offence is a matter which has to be investigated by a Civil Court and not by a Criminal Court. In this case Sen J. has very elaborately discussed the law of house trespass and the view that his Lordship has taken that criminal intent specified in section 441 of the Code if not established, the charge of house trespass must fail, I entirely agree with it. In a recent decision of the Chief Justice of the Calcutta High Court in the case of Nisamud din v. Jinnat Hussain 49 C. L. J.

120. It was held that though the intention teas to obtain possession contrary to law, there was no proof of an intention to commit an offence or to intimidate or annoy which proof was essential. Further it will be seen that in a case of this Court Madhu Sudhan Saha v. Jitendra Mohan Goswami 2 D. L. R.

17. Their Lordships while dealing with the charge under section 448 of the Pakistan Penal Code observed as follows "The charge set out to establish that the petitioner effected his entrance into the rooms, (a) to cause wrongful loss, and (b) to intimidation. With regard to the second point, there is no find ing at all by the Court below that the entrance was effected with the intention of causing any wrongful loss." Considering the facts of the present case in the light of the above mentioned decisions, I. am of opinion that in order to establish of the case I find that the prosecution has proved beyond reason able doubt that the complainant was in possession of the disput ed house at the time of the occurrence and that the accused com mitted house trespass in respect of the disputed house." Mr. Huda contends that there is no finding with regard to criminal intention of the petitioners and comments that the learned Magistrate has not taken into consideration the ingredients of the offence of criminal trespass as specified in sections 441 and 442 of the Pakistan Penal Code and has convicted the petitioners under section 448 of the Pakistan Penal Code on a wrong notion of the law. Such a finding, he contends, is not legal and he assails the conviction. In my opinion there is considerable force in. Mr. Huda's contention. I, therefore, hold that the criminal intent specified in section 441 of the Pakistan Penal Code not having been established in this case, the charge of the house trespass must fail. I set aside the order of conviction and sentence and acquit the petitioners. The fine, if paid, shall be refunded. The rule is accordingly made absolute. K. M. A. Revision accepted