P L D 1953 Peshawar 62 (PLP)

MUHAMMAD SHAFI, J.‑58 kanals 3 marlas of land out of 59 kanals 3 marlas bearing Khasra No. 659, situated near Rustam Village in the Mardan District, is noted in the revenue papers as shamilat‑deh in possession of the entire Muslim community. It is not denied that the Muslims and to be precise about it those living in Rustam used it as a graveyard. Since a few years a hamlet of Rustam, known as Hira Wand has come into existence. The people belonging to this hamlet have also been burying their dead in this graveyard. On 31st December 1950, at about 9.45 a.m., Muhammad Hassan (P. W. 2) Ghulam Muhammad and Rahim Gul of Hira Wand hamlet, lodged a report in Rustam Police Station to the effect that Sher Wali Khan had taken possession of this graveyard and had constructed a hedge around it in order to prevent the Hira Wand people to use this place as such. While this report was being recorded Sher Wali Khan also appeared in the Police Station and lodged a report, stating therein that the graveyard belonged to the people of Rustam, and that his family owned land around it, that Hira Wand people had no right in this graveyard, and that he was not going to allow them to bury their dead there. As a result of these counter‑reports security proceedings were taken by the Police against prominent persons on both sides. On the following day, I.e., 1st January 1951, Qias Gul of Hira Wand made a complaint that his minor son had died on the previous day, and that Sher Walt Khan, Sarfaz, Sher Zaman, Mir Muhammad and Amir Khan did not permit him to bury his body in the said graveyard. He alleged that these accused had committed an offence under section 297, P. P. C. The aforesaid persons were tried for an offence under section 297, P. P. C. One Wasi Khan, son of Mir Hashmat, was also tried along with them for the same offence. The learned trial Court convicted them and sentenced each to pay a fine of Rs. 50, or in default to suffer one month's rigorous imprisonment in each case. The convicted persons went up in revision to the Court of the Additional Sessions Judge, who by his order, dated 14th February 1953, has forwarded the case on to this Court with the recommen?dation that the conviction of the accused being bad in law be set aside. Under section 297, P. P. C., amongst other things whoever with the intention of wounding the feelings of any person, or with the knowledge that the feelings of any person are likely to be wounded commits any trespass in any place set apart as a deposit?ory for the remains of the dead or offers any indignity to any human corpse is liable to be punished with imprisonment of either description for a term which may extend to one year or with fine or with both. The question to be decided in this case is whether the accused had committed any trespass on any land set apart as a depository for the remains of the dead. The word "trespass" used in this section does not mean "Criminal trespass" as defined in section 441, P. P. C., because if that were the intention of the legislature, there is no earthly reason as to why should the words "criminal trespass" had not been used in this section instead of the word "trespass". The word trespass as it is commonly understood means to enter unlawfully upon the land of another. If that was the only meaning of the word trespass the accused in this case could not have been said to have committed the trespass, because the graveyard in dispute belongs to them just as such as it belongs to anybody else. There is, however, another meaning attached to the word trespass and that is to commit any offence or to do any act that injuries or annoys another. This word also means to violate any rule of rectitude to the injury of another. There is no reason why should the word trespass used in this section be not taken in a wide sense as so to include the dictionary meanings as given above. It, therefore, follows that if the accused did any act in regard to the graveyard in question that injured or annoyed another then they would certainly be guilty under section 297, P. P. C. The allegation is that they cut the shrubs from the graveyard and erected a hedge around it in order to prevent the people of Hira Wand hamlet to enter into the graveyard and bury their dead there. This fact was admitted by Sher Wali Khan in his report. The pro section produced Muhammad Hassan (P. W. 2), Muhammad Hussain (P. W. 3), and Mir Aftab Khan (P. W. 7) to prove the above fact, and I see no reason to disbelieve their testimonies. It is, thus, proved beyond a reasonable doubt that the accused did erect a hedge around the graveyard and cleared off the bushes, which act is a trespass within the meaning of the word used in C section 297, P. P. C. Apart from that, the prosecution case is that a son of Qias Gul (P. W. 3 ?) (P. W. 4) had died and the accused had prevented his dead body from being buried in this graveyard. This act of the accused if proved will certainly be an offence under section p 297, P. P. C. because it amounts to offering indignity to the human corpse. The fact that the accused committed this offence is proved by the evidence of the prosecution witnesses mentioned above as well as by that of Qias Gul P. W. I am, therefore, of the opinion that the offence has been fully brought home to the accused, and that the recommendation of the learned Additional Sessions Judge has no force. The revision petition is dismissed. Orders announced. A. H.??????????????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.