P L D 1963 (W (PLP)

5. The complainant has challenged the order of the learned Sessions Judge, whereby he ordered the restoration of the property to the accused, on the ground that he had no jurisdiction to do so. It was urged by him that the appellate Court under section 532, Cr. P. C. could take action only if it were to convict a person and restore the possession to a complainant who had been dispossessed by a show of force. This may be so, and I do not feel there is any necessity to give my finding m respect of that aspect in this case. The action taken in the present case obviously was under section 423 (1) clause (d) of the Code of Criminal Procedure. This power did not originally vest in the Appellate Court, but by Act V of 1898 the power of making any amendment or any consequential or incidental order, that may be just or proper, was given to the appellate Court. These powers are, very wide and, in my opinion, authorise the Court to interfere in a case like the present one. The appellate Court, while setting aside the conviction, could set aside the Magistrate's order under section 522, Cr. P. C. at the time of the disposal of the appeal.

6. The learned counsel for the petitioner, however, relied on a Single Bench decision of Allahabad High Court in Ram Prasad and others v. State (A I R 1958 All. 159) to contend that the appellate Court, while acquitting the accused, could not pass an order setting aside an order of the Magistrate passed under section 522, Cr. P. C. The gist of the argument was that the appellate Court could acquit the accused, but had no jurisdiction to restore the property to them which had been handed over to the complainant under section 522, Cr. P. C. The head‑note of this decision is mis leading. The facts of the case were that the Magistrate, sub sequent to the conviction of the accused, order under section 522 of the Code of Criminal Procedure the restoration of possession to the complainant. The possession was actually delivered to him. On appeal, the accused were acquitted by the Assistant Sessions Judge on the 19th September 1955. The acquitted persons applied on the 20th September 1955, to the learned Assistant Sessions Judge for the restoration of the property in dispute under section 522, Criminal Procedure Code. The application was rejected on the 17th October 1955. It was held:- (a) That the Appellate Court could not pass an order under section 522, Code of Criminal Procedure, in a case when it acquitted the accused‑appellants. (b) That the appellate Court could pass an order of restora tion of property to the accused persons against whom an order under section 522, Code of Criminal Procedure, had been pass ed by the trial Court, yet such an order under section 423 (1) (d), Code of Criminal Procedure, could be passed only when the appellate Court was seized of the appeal and not subsequent to its disposal. On a revision filed against the order of the Assistant Sessions Judge, it was held by the High Court:- "No exception can be taken to the views expressed by the learned Sessions Judge on both the points." It is, therefore, clear that even in Ram Prasad and others v. State, according to the learned Judge, that appellate Court could pass an order of restoration of property to the accused persons under section 423 (1) (d), Code of Criminal Procedure, when the appellate Court was seized of the appeal and not subsequent to its disposal. Since in the present case the order of restoration was passed in the judgment of the appellate Court, itself, the order is valid even according to the Allahabad decision relied upon by the learned counsel for the petitioner.

7. The learned counsel for the respondents relied on Kirpal Singh v. Laboo (5 P R (Cr.) 1895), Lal Chand v. Doshandi (A I R 1923 Lah. 15) and Raghu Nath v. Raghu Nath Sahai ((1929) 118 I C 392) and urged that the conviction in conse quence of which possession had been given to the complainant had been set aside and the First Appellate Court had no alternative but to hold that the possession of the house should be given back to the accused on the consideration that the conviction, which alone could sustain the order under section 522, Cr. P. C., had been set aside. It was particularly emphasized that in Lal Chand v. Doshandi, notwithstanding the fact that Chief Justice Sir Shadi Lal had observed that the equities of the case were entirely in favour of the complainant, still the possession was handed over to the accused after they were acquitted and the order of convic tion had been set aside. My attention was also drawn to Malkhan Singh v. Emperor (A I R 1945 All. 226) where Lal Chand v. Doshandi was cited with approval and followed by a learned Judge of the Allahabad High Court. The ratio decidendi in all these judgments is to the effect that it should follow as a logical consequence of the reversal of a conviction, by reason of which the convict was deprived of possession of property by means of a Court order, that such order should be reversed and the property restored to the acquitted persons.

8. I was impressed by these decisions at the time of hearing and thought that on the basis of the law laid down in the autho rities cited I had no alternative but to follow them. I, however, later on noticed that the decisions cited by the learned counsel for the respondents had been considered in a later decision as Abdul, Ghani v. Crown (P L D 1950 Lah. 154). It seems that this authority had escaped the notice of both the learned counsel for the petitioner as well as the respondent, because it overruled both Lal Chand v. Doshandi and Raghu Nath v. Raghu Nath Sahai, and distinguished Kirpal Singh v. Laboo. 'The facts of this case were that the accused were convicted under sections 453 and 455, Indian Penal Code, for the offence of a criminal trespass into a houses and the Magistrate also made an order under section 522, Cr. P. C. directing that the possession of the house be made over to the complainant. The property in this case was undoubtedly the property of the complainant and the accused had set up no ground which could furnish them with any claim of title to the house. Following the conviction of the accused, the possession of the property was delivered to the complainant. The accused success fully appealed from their conviction and were acquitted. The accused earlier had filed an application for the restoration of possession of the house to them. This, however had been dismissed by the Sessions Judge on a date prior to the disposal of the appeal on the ground that the, petition was incompetent because no such appeal lay from an order under section 522, Cr. P. C. The accused, therefore, after their acquittal by the Sessions Judge filed a petition under section 439 before the High Court for an order that possession of the property should be restored to them. The case came up before Mr. Justice A. R. Cornelius (now the Chief Justice of Pakistan). There also reliance was placid on the authorities cited in this case by the learned counsel 'far the ‑respondents. His Lordship thought that the law laid‑down in those‑authorities required to be recon sidered and on 'his reference the `matter was considered by a Division Bench where it was laid down : "With regard to the two precedent cases cited above, I would observe, speaking with the greatest respect, that if these cases are understood to lay down that any logical considerations compel a Court to put back into possession of any immovable property a person who was convict ed of an offence involving use or show of criminal force or crimi nal intimidation in respect of such property, and who was deprived of its possession following such conviction, by an order under section 522, Cr. P. C., merely by reason of such person having been acquitted of the offence, then, to that extent, these decisions do not, in my opinion, lay down good law". Petition of the accused, who had been acquitted, was dismissed as their Lordships were clearly of the opinion that there was nothing which could sway in favour of exercising any discretion under section 439 of the Code of Criminal Procedure, so as to put the petitioner back into possession of the disputed house.

9. The aforesaid decision was given under section 439, Cr. P. C. and pertains to the exercise of revisional powers by the High Court, but on analysis I find that in principle there is no difference whether such power was exercised under section 439 or under section 423 (1) (d) of the Code of Criminal Procedure. The revisional Court can pass all such orders as may be validly passed .by appellate Court except that the High Court, while exercising its revisional jurisdiction, cannot alter a finding of acquittal into that of conviction.

10. In the light of the principle laid down in Abdul Ghani v. Crown, which I respectfully follow, I have examined the order of restoration passed by the learned Sessions Judge. In the present case, it has been held by him that "the complainant had never been in possession of the property in dispute". He was of the opinion that the disputed property belonged to Muhammad Aslam and the accused were in its possession as his tenants at the time of occurrence. The order of restoration, therefore, was perfectly justified under section 423 (1) (d) of the Code of Criminal Pro cedure, this being, in the circumstances of the ease, consequential and incidental to the order of acquittal. On the facts of the present case I find that the order of the learned Sessions Judge was perfectly in order and otherwise necessary in view of his clear finding that the complainant was not in possession of the property and had never been dispossessed.

11. The learned counsel for the petitioner also took an exception to the observation of the learned Sessions Judge to the remarks made by him in para. 27 of his judgment: Para. 27 of the judgment is reproduce below and the observations which are objected to by the petitioner are italics :‑ "For the afore‑stated reasons, I am of the view that the com plainant has failed to establish that the accused took forcible possession of the dera from him and set his sahal on fire. It seems to me that faced with a serious problem, viz., that their father was not prepared to own them and had deprived them of his property, the complainant, in all probability, in consultation with his brother Haq Nawaz and their cousin Saeed Ahmad (P. W. 10), thought of a plan to rope in the tenants of Muhammad Aslam his step‑brother, in order to establish that they were, in fact, the sons of Sardar Rahim Bakhsh and as such were in possession of his property and their paternity was being wrongly denied. I am not convinced that the complainant or his brother were at any time in possession of either the dera or the sahal in question. I am of the view that the aforesaid property remained in posses sion of Sardar Rahim Bakhsh till he sold his land, including the land on which the sahal and the dera were standing, to his son Muhammad Aslam and passed on their possession to him. It were his tenants Ahmad Bakhsh etc., who were in possession of the disputed property at the time of the occurrence. That being my view of the case, I allow the appeal and setting aside the convictions and sentences of the appellants, acquit them. They are on bail and shall stand discharged from their bail bonds."

12. He wanted me to expunge these remarks. It was objected to on behalf of the respondent on the ground that the petitioner did not seek the expunction of these remarks in his petition. It is correct that the body of the petition is conspicuous by an absence of reference to any such claim, but it is mentioned in the prayer clause that para. 27 of the judgment and other relevant portions be deleted from the body of the judgment as being besides the issues. Observations made in para. 27, in my opinion, are relevant to the case and the learned counsel for the petitioner has not been able to show as to how the italicised portions to which he has taken an exception are besides the issue. I have reproduced the whole paragraph only with a view to show that when we read these remarks as a whole and not detached from the rest of the paragraph, they are justified and cannot be open to any objection. I, therefore, dismiss the petition. K. B. A./A. H. Petition dismissed.