P L D 1974 Karachi 369 (PLP)

In the statement under section 342, Cr. P. C. the petitioner set up a case that the rooms of the complainant were separate from his but and that his but was constructed on a plot which belonged to him. He denied having broken open the lock that had been applied by the complainant at the time of the latter leaving for Punjab. He examined three defence witnesses namely, Sajjad Hussain, Dilan Khan and Jiwan Khan. These three witnesses have given evidence that the petitioner had been living in the house in question for the last 10‑12 years. The learned Magistrate had inspected the premises in question for the purpose of understanding the evidence and he prepared an inspection memo. and a sketch of the site. It appears that the two plots namely, F‑100 and F‑101 were bounded by a compound wall having a single door. It further appeared to the learned Magistrate that a new wall had been set up dividing the two plots and in one out of those two plots the kutcha but had been constructed by the petitioner.

4. On such state of evidence the Courts below came to the conclusion that the petitioner had trespassed on the plot of the complainant and it was the complainant who was in possession of both the plots. However, while the trial Court came to the conclusion that the facts constituted WORD MISSED so as to make out an offence under section 448, P. P. C. the WORD MISSED sessions Judge came to the conclusion that the offence fell under section 447, P. P. C. for the reason that the petitioner had only trespassed on the open plot.

5. Mr. Kadir Bux Bhutto the learned Advocate for the petitioner has challenged the judgments of the Courts below on two grounds. The first ground that had been taken by him was that the trial of the petitioner was without jurisdiction for the reason of the provisions contained in section 3 of the Conciliation Courts Ordinance No. XLIV of 1961. Additionally it was contended by the learned Advocate that the evidence did not disclose that the entry on the plot was accompanied by the requisite intention of causing annoyance or insult for the commission of the offence, which are the necessary ingredients for any trespass.

6. Section 3 of the Conciliation Courts Ordinance reads as follows:‑ "

3. Cases referable to conciliation.‑(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), or in the Code of Civil Procedure, 1908 (Act V of 1908)‑ (a) all cases falling under Part I of the Schedule shall, save as otherwise provided, hereinafter be referred to conciliation under this Ordinance, and no civil or criminal Court shall have jurisdiction to try any such case;". It would appear that what is barred is the trial of a case which falls under Part I of the Schedule appended to this Ordinance. Part I of this Schedule bars the trial of an offence under section 447, P. P. C. but not an offence ‑under section 448, P. P. C. In the present case the complaint was filed under section 448, P. P. C., cognizance was taken under section 448, P. P. C. and even conviction was recorded under section 448, P. P. C. This conviction of course has been altered to one under section 447, P. P. C. On such state of facts the learned Advocate has argued that in fact the offence fell under section 447, P. P. C. as has been held by the learned Additional Sessions Judge, and for that reason the trial Court should not have proceeded in this case in an ordinary Court. In my view this argument is completely misconceived. What section 3(1)(a) bars is the trial of an offence under section 447, P. P. C. Trials begin when the proceedings are instituted and are pending in the Court of the Magistrate. That trial was not for a offence under section 447, P. P. C. but for an offence under section 448, P. P. C., and for that reason it is amply clear that the trial could not be said to be barred by the provisions of the Conciliation Courts Ordinance. It has of course ultimately turned out that the offence of which the petitioner ha been found guilty by the Additional Sessions Judge was triable exclusive by the Conciliation Court. The question however is whether the trial was bad on account of lack of jurisdiction? The legality and validity of the trial has to be determined in relation to the offence for which the accused is tried and not by reference to the offence of which he has been convicted. Innumerable cases could be found where persons had been tried for more serious offence but ultimately convicted under such sections of law which are exclusively triable by the Conciliation Courts. Under these circum stances it cannot be said that the trial itself was illegal. I have no doubt in my mind that the trial of the accused by the Magistrate was valid because the Magistrate had, rightly or wrongly taken cognizance under section 448, P. P. C. It was open of course to the petitioner to have sought proper redress at the time when the trial was pending and perhaps such other remedy might have been available to him but at the present time the trial has concluded and the trial was for an offence under section WORD MISSED offence which the Magistrate could try. The learned Advocate has relied on a judgment of Inamullah Khan, C. J. as he then was) in the case of Muhammad Iqbal and others v. Fazal‑ur- Rehrnan (P L D 1967 Lah. 65). In that case the facts were that the complainant filed a complaint under section 379/406, P. P. C. While the complaint was pending an application was made before the High Court under section 561‑A, Cr. P. C. for quashment of the proceedings. The grounds in support of the prayer were that on a bare reading of the complaint no offence of theft was indicated and an offence under section 406, P. P. C. in cases where the value of the property that had been misappropriated did not exceed Rs. 100, was triable by the Conciliation Court. The learned Chief Justice in that case came to the conclusion that offence under section 379, P. P. C. was not indicated by the complaint itself and the other offence under section 406, P. P. C. for the reason of the value of the property not exceeding hundred rupees was triable by the Conciliation Court. To that extent there can be no disagreement with that judgment because the trial had not yet started, and the learned Chief Justice came to the conclusion that the offences in regard to which the accused were being prosecuted were not triable by the Magistrate under the Code of Criminal Procedure. The position here is different because the trial had indeed proceeded under section 448, P. P. C. and the accused had been charged and convicted under section 448, P. P. C. This case therefore, is of no assistance to the petitioner. The learned Advocate for the petitioner has next relied on the case of Manzur Hossain v. The State (P L D 1970 S C 51). The facts of this case were entirely different because what had happened was that the complainant had filed a complaint before the Magistrate alleging the commission of offences under section 341, P. P. C. The Magistrate did not examine the complainant on oath and took cognizance of the case and after reading out the substance of the accusation, to which the accused pleaded guilty, convicted them under section 341, P. P. C. Section 341, P. P. C. is a scheduled offence under the Conciliation Courts Ordinance. In that case the position is very clear that the complainant itself being under section 341, P. P. C., cognizance having been taken under section 341, P. P. C. and conviction having been ordered under section 341, P. P. C. the Court acted illegally and without jurisdic tion. It would thus appear that both the cases on which the learned Advocate for the petitioner has relied are of no assistance in his case and are clearly distinguishable. I am myself of the view that what section 3 of the Conciliation Courts Ordinance bars is a trial, and if the actual trial was for an offence which was not an offence scheduled under the Conciliation Courts Ordinance, the trial would not be vitiated. I may also refer to some cases from the Dacca High Court in this context. In the case of Shafi Muhammad v. Mid (P L D 1967 Dacca 375), a similar situation arose. The accused was tried under section 325, P. P. C. but convicted under section 323, P. P. C. which offence is triable by Conciliation Court. It was held that the provisions of section 3(1)(a) of the Ordinance were not attracted. In this case the Magistrate had framed a charge under section 323, P. P. C. In another case from Dacca High Court viz. Samad Ali v. Ejazuddin (1970 P Cr. L J 9), the facts were that complaint was filed under section 324, P. P. C. but on evidence the case was found to fall under section 323, P. P. C. and the learned Judges holding that the venue was to be determined on the question of initial jurisdiction to deal with the case refused interference. Both these cases were decided by Division Bench of that High Court. I therefore, see no illegality in the present case. On the other hand even if such an argument as has been advanced by the learned Advocate for the petitioner is to be accepted the relief that can be available to him would only be in the nature of afresh trial before the Conciliation Court. Such a relief would not advance the ends of justice at all.

7. The next point that has been raised by the learned Advocate for the petitioner is that there was no evidence to show that trespass was committed with an intention which is the necessary ingredient of criminal trespass under section 441, P. P. C. As it is the case of the complainant is that he had locked the house and had gone temporarily to Punjab and when he came he found that the lock had been broken and the petitioner had occupied a portion of the plot belonging to him. It is further the case of the com plainant that in spite of the petitioner being told to vacate the plot the latter not only refused to vacate but became furious and started a quarrel Initially it must be stated that even when the complainant had gone away to Punjab the house and the plot was in his possession and the evidence is undisputed that he had locked the house. Annoyance is a matter of inference and in this case we have clear and categorical evidence and finding of the trial Court that the petitioner on being asked to vacate became quarrelsome and furious. The learned Advocate for the petitioner has however relied on the case of Phani Bhusan Majumdar v. Majibullah and others (1968 P Cr. L J 625). In this case the accused were tried for an offence under section 448, P. P. C. but were acquitted on the grounds that the eye‑witnesses did not see the accused removing the things from the place where the trespass was committed and that the eye‑witnesses were inimical, and for various other reasons. Such acquittal was challenged before the Supreme Court and the appeal was dismissed. It appears that the learned Single Judge in the High Court had set aside the conviction for criminal trespass on the ground that the intention to intimidate or annoy could not be found because at the time of unlawful occupation the but was vacant. That makes all the difference. In the present case it could not be said that the house was vacant for the simple reason that the complainant had locked the house and continued to retain possession of the house. Taking a view that physical resistance must in all cases accompany the entry on property in order to constitute trespass will lead to dangerous results; because then it would appear that whenever a person locks his house and goes out, any other person can break open the house and make an entry without being criminally liable. That would be c putting an absurd interpretation on the meaning of trespass. In the present case the facts clearly show that the complainant continued to remain in possession of the premises in spite of his having gone to Punjab.

8. The argument of the learned Advocate proceeds on the assumption that if a person enters upon the property of another at a time when the latter is absent, no criminal offence would be committed; for the reason that there was no person available to be subjected to annoyance, intimidation or any other offence. This argument is completely fallacious because the criterion is the intention of an accused person and not the physical presence or absence of the person whose property is subjected to trespass. A person may enter with a view to annoy another, but for the absence of the person in occupation, the effect of intention to annoy may not be instantaneously manifest; nevertheless the intention to annoy under such circumstances can be reasonably inferred, more so in cases where the accused does not have any right to the property. There is considerable case‑law on the subject and reference may be made to the following reported decisions: (i) Ghulam Nabi v. State P L D 1959 Lah. 495. (ii) Ghulam Ahmed v. Emperor A I R 1938 Lah. 848. (iii) Bishu Makherji v. Haji Zaheer P L D 1955 Dacca

70. On consideration of the position I am of the view that mere absence of the person in possession of immovable property at the time of unlawful entry would not wear away the intention of the trespasser, as to provide him protection against criminal liability.

9. The other point that was raised before me by the learned Advocate for the petitioner was that the complaint was filed after a delay of 9 months. On that point the complainant has offered a satisfactory explanation and he has stated that he lodged a report with the police but no action was taken and thereafter he approached the Martial Law Authorities but even there he could get no redress. This would show that the delay is sufficiently explained. No other point was urged before me.

10. For all these reasons I see no substance in this revision application which is hereby dismissed. S. A. H. Application dismissed.