P L D 1962 (W (PLP)

2. Muhammad Saeed Shah was prosecuted for an offence under section 3(2, P. P. C., and was in jail at the time when the complaint against the applicant was filed. Saeed Shah executed a general power of attorney in favour of the applicant in respect of the Saeed Motor Stores.

3. The complainant had appointed one Qurban Ali as a salesman of the shop. It is the prosecution case that on 6th May 1959, the applicant went to, the shop of Seed Motor Stores and in the absence of the complainant he drove out Qurban All, brother of the complainant.

4. The main question for consideration is whether on the facts admitted by the prosecution the case for criminal trespass has been made out. After going through the record of this case I am of the view that no offence for criminal trespass has been made out. Before I proceed to deal with the prosecution evidence I think it useful to state as to what the law is in respect of the necessary intention under section 441 of the Penal Code. In this connection Mr. Muhammad Hayat Junejo has cited certain cases. The most useful case to my mind is that of the Privy Council: Sunnasamy Selvanayagam v. The King (62 Cr. L J 173). In this case some person was being prosecuted for criminal trespass under the Penal Code of Ceylon. The provisions of the Ceylon Penal Code and that of the Pakistan Penal Code appear on a perusal of the observations of their Lordships of the Privy Council to be the same. The relevant observation runs as under: "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 annoyance to the occupant. To establish criminal trespass J 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. The Privy Council case was followed in the case of Morotrao Ganpatrai Jadhav v. The State and another (A I R 1960 Bom. 481). Mr. Junejo also relied, in support of his contention that unless the requisite intention under section 441, Penal Code, is prima facie made out no charge for criminal trespass is maintainable, on the Full Bench case of S. Vullappa. and others v. B. Bheea Row (I L R 41 Mad. 156) and Emperor v. Madan Mandal and others (I L R 41 Cal. 662). It was observed in the last mentioned Calcutta case that "criminal trespass depends on the intention of the offender and not upon the nature of the act and when the man's intention is to save his family and property from imminent destruction it cannot be said that because he commits civil trespass on his neighbour's land and cuts a portion of the bund belonging to his neighbour which he ordinarily would not be justified in doing, he is guilty of any criminal offence." In the present case the prosecution evidence does not establish the requisite ingredients of section 441 of the Penal Code.

5. The prosecution examined the complainant Imdadali, Qurbanali, who was turned out from the shop, Muhammad Aslam and Jamil to prove the offence. The relevant portion of the statement of complainant Imdadali is as under: "On 9th I returned to Hyderabad and made enquiries from my brother Qurban Ali and he told me that the accused came to him at 9‑0‑10‑0 a.m. on 5th May 59 and showed him the power of attorney and said that Muhammad Saeed Shah had ordered him to take possession of the shop. At that time Arif Shah Advocate was with him. I told them that possession should be taken by them from me but they refused to give him anything in writing. Then he pushed him out of the shop." P. W. Qurban Ali stated as under: "On 6th May 1959 while I was in the shop., at 10 a.m. the accused and Saeed Arif Shah came to the shop. At that time Aslam and Jamil were sitting with me. The accused said that Muhammad Saeed Shah had met his attorney and he wanted to close the shop and hence we should close it. I told him that complainant was out and he should speak to hire. He said that I was servant and I should vacate. I told him that I should be given in writing. Then accused pushed me out." Muhammad Aslam stated as under; "He showed some papers to Qurban Ali P. W., saying that it was Power of Attorney to get out of the shop. Qurban said that he should give him in writing. The accused refused and pushed him out." P. W. Jamil stated as under: "He said that Saeed Muhammad Shah load asked him posses sion of the shop and he should go away. Then after a long talk he pushed off Qurban Ali outside the shop."

6. From a perusal of the statement of the prosecution witnesses it would appear that the accused had a power of attorney which he showed to Qurbanali. Qurbanali however insisted before leaving for something in writing. Qurbanali was admittedly only an employee of the shop. The deed of partnership is silent as to the power of Saeed Shah to dismiss an employee. The fact however remains that the applicant was armed with a general power of attorney and was authorised by Saeed Shah to take possession of the shop after dismissing Qurbanali. It cannot be said that the applicant had no power to enter the premises. It has not been urged before me that Saeed Shah could not enter the premises of the shop. The only question is whether Saeed Shah could dismiss the employee of the shop or not. In view of the fact that the entry of the applicant, being armed with a general power of attorney, in the shop would be a lawful one, he could also remain in the premises of the shop lawfully. The sleeping partner has every right in the absence of anything in the partnership deed to visit the shop and to look into the accounts. In these circumstances the fact that Qurbanali was dismissed and turned out of the shop could not lead one to the conclusion that there was any requisite intention as mentioned under section 441 of the Penal Code on the part of the applicant. The applicant had in view of the general power of attorney a right to enter the shop and to remain there. The only act can be attributed to the applicant is that he had pushed out Qurbanali from the shop. This act by no stretch of imagination can fall within the provisions of section 441 of the Penal Code.

7. Mr. Abbasi, the learned Advocate for the State, contended that this Court will not quash the proceedings unless the applicant is able to make out a case of injustice. I agree with this proposition. I have already observed that in the present case the prosecution bas failed to make out the ingredients of section 441 of the Penal Code. Under section 439 of the Criminal Procedure Code and also section 561‑A this Court has ample jurisdiction to interfere provided the case be a suitable one for interference. This Court will interfere where a person is being prosecuted on a charge which, on the evidence produced by the prosecution, does not exist. This would amount to harassment of an accused person and will be an abuse of the process of law. In this connec tion reliance may be placed on the case of Gokul Prasad and another v. Debi Prasad (A I R 1925 All. 311). Mr. Pribhdas for the complainant relied on the cases of Ram Nath and others v. The State (A I R 1953 All. 725) and Preman and others v. Emperor (31 Cr. L J 878) in support of his contention that the necessary intention of section 441, P. P. C., has been made out. The question of intention is a question of fact which will depend upon the circumstances of each case. No hard and fast rule can be laid down. The circumstances of the cases relied upon by the learned Advocate for the complainant are quite different than the one before me.

8. Before disposing of this application I may observe that though the trespass is said to have been committed on the 6th May 1959, the complaint was filed on the 9th. No reason whatsoever has been shown as to why the complainant took such a long time to file the complaint. Another fact that I would like to mention is that a civil suit was filed by the complainant on the 13th of May 1959 which Mr. Pribhdas stated has been decreed and a preliminary decree has been passed. I would, for the reasons given above, quash the proceedings pending before the learned Extra Joint Sub‑Judge and F. C. M. Hyderabad against the applicant under section 448 of the Penal Code in Case No. 81 of 1959 Imdadali v. Kazi Taj Muhammad. K. E. A. Proceedings quashed.