1991 P Cr (PLP)

3. Mr. Hamid Saeed Malik, the learned Assistant Advocate-General frankly conceded at the Bar that the impugned order of acquittal recorded by the learned Magistrate in the circumstances of the case was unexceptionable. Since learned counsel for the accused-respondent is not in attendance, therefore, I have perused the record of the case with the assistance of the learned Assistant Advocate General.

4. The first and foremost question which has to be determined in this case is whether Naik Amal Shah complainant (P.W.1) has been able to prove that he was in possession of the shop from which he is alleged to have been forcibly dispossessed by the accused-respondent by demolition. For this purpose he has, apart from himself, examined his own brother Darvesh (P.W.2). Upon his own admission in his cross-examination he was tenanting the disputed shop on behalf of the accused-respondent and that there was a dispute between the accused respondent and his nephews over the said shop. Nonetheless no independent evidence has been adduced by the complainant to substantiate his plea that he was in possession of the disputed shop, which is one of the essential ingredients of section 441 defining the offence of criminal trespass. Section 441, P.P.C. runs as under:-- "

441. Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult, or annoy any such' person, or with intent to commit an offence is said to commit "criminal trespass."

5. The definition reproduced above makes it absolutely clear that there are three essentials in it:-- (1) Entry into or upon property in the possession of another. (2) If such entry is lawful then unlawfully remaining upon such property. (3) Such entry or unlawful remaining must be with intent:-- (i) to commit an offence ; or (ii) to intimidate, insult or annoy the person in possession of the property.

6. The first and foremost ingredient of section 441, as stated earlier, is that the complainant is under a bounden duty to prove that he was in actual or constructive possession of the disputed shop. This ingredient, I am afraid, has not at all been adverted to by the prosecution.

7. After perusal of the record, I have formed the opinion that since the, complainant has not been able to prove his actual or even constructive possession of the disputed shop, therefore, no offence under section 447 or 448 P.P.C. has been made out. The learned trial Magistrate has thus applied his conscious mina to the relevant evidence and has considered the matter in accordance with the guiding principle laid down by the superior Courts. To my mind the judgment is neither perverse nor illegal. Even otherwise it is well-settled that once an accused person is acquitted then strong and exceptional grounds are required to interfere with the judgment of the trial Court, which I do not see in this case. There being no merit, this appeal is dismissed. N.H.Q./1146/P Appeal dismissed.