P L D 1958 Dacca 564 (PLP)

3. The petitioners have now come up in revision before this Court. The first ground urged is that the decisions of. the Courts below are vitiated by a misreading of the evidence. It is pointed out to us that admittedly in the present case petitioner No. 1 had obtained an ex parte order under section 144 of the Code of Criminal Procedure on the 12th December 1955, restraining the complainant and others from entering upon the disputed land. This order was duly served on the complainant on the 14th December 1955. On the following day, however, on the 15th December 1955, it appears that the Magistrate who made the order under section 144 was moved and he at the instance of the complainant passed an ex parte order vacating the previous order on the same day, that is to say, on the 15th December 1955. The evidence of P. W. 1 is that this order vacating the order under section 144 of the Code of Criminal Procedure was duly com municated to the local police, station as also a copy thereof was sent to the village Chowkidar, P. W.

3. None of the prosecution witnesses disclosed at what particular point of time on the 15th December 1955, the order was so communicated and at what particular point of time a copy of the order alleged to have been sent to the village Chowkidar was actually received by him. In the petition of complaint, however, in the present case, it is alleged that the cutting of the paddy and taking thereof took place in the morning of the 15th December 1955. The exact time was again not given. This statement was also supported by the complainant in his initial examination on oath. Nevertheless, on this evidence, the trial Court came to the finding that P. W. 3 Fakir Muhammad Chowkidar, on the request of another witness P. W. 1, asked the accused Ishaque and others not to cut and take away the paddy "as the order under section 144 of the Criminal Procedure Code was vacated". The learned Sessions Judge also, hearing the arguments advanced on behalf of the accused, observed "On this account it was contended that paddy must have been cut and removed before the injunction order had been vacated. From the circumstances of the case, it, however, appears that the accused party took some time to cut and remove the paddy and that in any event they got the infor mation while they were still removing the paddy from the disputed lands that the injunction order had been vacated. As soon as, therefore, the injunction order was vacated, the complainant must be taken to have been relegated into his former position". The learned Advocate appearing in support of this Rule charac terised these findings of both the Courts below as pure conjecture and assumption and not based upon a proper reading of the evidence. Hence, we have ourselves perused the evidence on record. It appears that the complainant, P. W. 1, in his evidence, only stated as follows : "In the morning of the day of occurrence, I filed a petition to S. D. O. He vacated the injunction order and sent infor mation to thana. One copy of the order was sent to the village Chowkidar Fakir Muhammad. He asked the accused not to cut the paddy. Yet they cut the paddy and took away the same to the house of accused Ishaque". The said Fakir Muhammad Chowkidar, P. W. 3, however, nowhere in his statement states that he received any copy of the order vacating the order under ' section 144 of the Code of Criminal Procedure, or that he in pursuance of that order went to the disputed land and asked the accused not to cut and take the paddy away. Although he says that "In the last part of Agrahayan last, one day Soleman told me that Ishaq and others went to cut his paddy and, requested me to intervene and help him. I went near the disputed land and saw from a distance of almost half a mile that the accused were carrying cut paddy from a paddy land in water and putting in 9 carts on dry land. I asked accused Ishaq and others not to take away the paddy as the order under section 144, Cr. P. C., was vacated. Yet he took away tile paddy to his house. I do not know the disputed land". In cross‑examination, he also stated that he did not know who grew the paddy.

4. It will thus be observed that P. W. 3 did not say that he had received the copy of the order vacating the order under section 144 of the Code of Criminal Procedure. His statement that the order under section 144 of the Criminal Procedure Code had been vacated, could, therefore, only have been upon the basis of what Soleman, who requested him to intervene in the matter, told him. It seems to us highly improbable that if the order under section 144 of the Criminal Procedure Code took two days to serve on the complainant, the order vacating that order, which was moved for in the morning of the 15th December 1955, almost contemporaneously with the time at which the alleged cutting away of the paddy or taking away of the same took place, could have been passed by the Court, sent to the village Chowkidar and received by him on the same day: It is significant also that none of the witnesses stated as to how far the Court of the Sub‑divisional Officer was from the disputed land. In these circumstances, the finding of the learned Sessions Judge in appeal that the cutting of the paddy must have taken some time and in the meantime the order must have been com municated and duly served on these persons seems to us to be pure , speculation. Indeed, as we have already stated, when P. W. 3 went to the land he found that the paddy was being taken away in carts. It does not also appear to us that in the facts of the prosecution case, if the accused had really surreptitiously obtained an order under section 144 of the Code of Criminal Procedure and, under the shield of that order, were cutting away and removing the paddy, they would be doing it leisurely to enable to complainant to go to the Court and obtain, an order vacating the said order under section 144 of the Code of Criminal Procedure and then serve a copy of it on the village Chowkidar. If they did cut and take away the paddy, they must have done so hurriedly.

5. In these circumstances, in view of the 144 order res training the complainant having been admittedly made, it was, in our opinion, necessary for the Courts below to enquire, if during the pendency of that order under section 144 of the Code of Criminal Procedure, an offence under section 379 could have been committed: There' is a decision of this. Court directly on the point which, it appears, was also placed before the Courts below, namely, the case of Mofiz Ali and others v. Rajab. Ali (4 D L R 490) where this Court has held that no charge would lie under section 379, Pakistan Penal Code, for taking paddy out of the possession of the complainant when he was debarred from entering upon the disputed land and exercising any act of possession in respect thereof by an order under section 144 of the Criminal Procedure Code, served on him' before the date of occurrence. In the face of this authority, by which both the Courts below were bound, it was incumbent upon them to come to the definite finding that the point of time at which the paddy was cut and taken away was after the order vacating the injunction had been duly communicated to the parties concerned. An order under section 144 of the Code of Criminal Procedure is required under the Criminal Procedure Code to be served personally on the persons sought to be restrained and, therefore, an order vacating that order must also be served personally on the persons sought to be affected by it. The Courts have, however, come to no definite finding in this behalf but, nevertheless, exercised a considerable amount of ingenuity in trying to explain away and get out of the decision of this Court. We strongly deprecate such attempt. This was a direct authority on the point and should have been followed in the light of the facts of that case. The Court of Appeal below suggests that it is distinguishable, because, in that case both the complainant and the accused were restrained. This is no distinguishing feature. It was an authority to show that the property could not be said to have been , dishonestly taken away from the possession of the complainant if the com plainant was then restrained from entering upon the land. In the present case, the complainant was so restrained.

6. As regards the question as to whether the order vacating the order under section 144 had been served on the accused persons, we have already in detail referred to the relevant evidence on the record and to the manner in which the Courts below have dealt with this question. It cannot be said that there is any clear or definite finding by either of the Courts below that the order was duly communicated to the accused persons. In the absence of such finding, therefore, the, conviction under section 379 cannot by any means be maintained in the light of decision referred to earlier.

7. The learned Advocate appearing for the complainant, however, sought to urge that to so far as the order under section 144 of the Code of Criminal Procedure itself was obtained by fraud, the order was a nullity and could have been ignored by the Courts trying this case. We asked him to show us if there was any finding by the Court below that the said order under section 144 of the Criminal Procedure Code had been obtained by practising a fraud upon the Court. He has frankly confessed that there is no such finding. In these circumstances it is not necessary for us to deal with the question as to whether an order obtained through practising a fraud upon the Court is per se void and a nullity or is merely a voidable order which has to be set aside. The basis of the reasonings of the Courts below appears to be that the ex parte order under section 144 of the Code of Criminal Procedure could not bind the hands of a Criminal Court in subsequent proceedings and it can, notwith standing the order under section 144 of the Criminal Procedure Code, decide the question of possession. For this purpose, the Court below relied on two decisions : Kalipadda Roy v. Satish Chandra Hui and others (42 C L J 396) and Madoh Singh and others v. Emperor (43 C L J 637). In view of the ruling of this Court, however_, in the case referred to earlier, it was, in our opinion, not permissible to the Courts below to travel to other High Courts. The decisions of this Court must be preferred by the Courts subordinate to this Court to any decision of any other High Court if directly C in point and can only yield to the decisions of our own Federal Court or Supreme Court.

8. In these circumstances, it appears to us that the con viction of the petitioners either under section 379 of the Pakistan Penal Code or under section 147 of the said Code cannot be maintained. The prosecution has failed to prove, without proving that the order under section 144 of the Criminal Procedure Code was vacated and the order so vacated was communicated to the accused persons, that the accused persons dishonestly took away any paddy from the possession of the complainant, or that they formed any unlawful assembly.

9. In the result, therefore, this Rule is made absolute and the convictions and sentence of the petitioners are set aside. The complainant has his remedy in a Civil Court which, if he so minded, he should seek. The fines, if already paid, will now be refunded to the petitioners and their bail bonds discharged. CHAKRABORTI, J.‑I agree. A. M. C. Rule made absolute.