P L D 1962 (W (PLP)

Faiz Muhammad Bhatti for A.‑G. for the State. Dates of hearing: 26th October 1961, 7th and 8th November 1961. On the dismissal of their appeal Abdul Qayyum and Abdul Rauf have challenged their conviction and sentence of imprison ment till the rising of the Court under section 453, Pakistan Penal Code.

2. The facts which led to this conviction are that a room in house No. A/1059 situated in Bhati Gate, Lahore, was occupied by Ramzan Ali Shah, who died on the 29th of December 1958. Muhammad Latif, who is uncle of the two petitioners, locked this room as he claimed that the room had been given on rent to Ramzan Ali Shah by him. After about sixteen or seventeen days the petitioners are alleged to have broke open the locks and taken possession of the room in question. On a private complaint by Muhammad Latif the petitioners were tried and convicted as mentioned above.

3. Ramzan Ali Shah died on the 29th of December 1958, the complaint was filed on the 3rd of June 1959. No witnesses were mentioned in the complaint. The statement of the complainant Muhammad Latif was recorded on the 24th of June 1959, under section 200, Criminal Procedure Code, but no witnesses were men tioned even in his statement. The complainant examined Abdul Aziz and Ghulam Muhammad as his witnesses under section 202, Criminal Procedure Code, on the 9th of July 1959. Thus the names of the prosecution witnesses appeared almost about six or seven months after the occurrence, This point has been completely overlooked by the two Courts below. It is admitted that there is litigation pending between the parties for the partition of this and other property jointly owned by the father of the petitioners and the complainant. Muhammad Hafeez, the father of the petitioners was also a co‑accused, but he has been acquitted in this case. There is no doubt that Muhammad Hafeez has produced a rent deed executed by Ramzan Ali Shah in his favour about this room. Undoubtedly, the father of the petitioners is a co‑sharer in this house and if after the death of Ramzan Ali Shah he entered into the room along with his sons, the requisite intention for a criminal trespass would not be there. At the most it would be civil tres pass in the assertion of his joint right of possession as a co‑owner. There is no clear finding in the two judgments of the lower Courts as regards the requisite intention for an offence of criminal trespass. Mere entry into or upon property in the possession of another, does not amount to criminal trespass unless it is with an intent to commit an offence or to intimidate insult or annoy any person in possession of such property. The fact that an accused should know that the entry would cause annoyance to the man in posses sion, is not enough to hold the act to be a criminal trespass. The evidence of the two eye‑witnesses deserves, to be rejected on the sole ground that their names appeared after a period oil six months.

4. In view of all the circumstances, I consider that an offence under section 453, P. P. C., is not made out against the petitioners. They are consequently acquitted. S. B. Petition accepted.