1. AJMAL MIAN, J.-This criminal acquittal appeal is directed against the judgment dated 29-3-1979 passed by the learned Civil Judge and F. C. M., Mirpurkbas, in Case No. 271/76 recording acquittal of respondent No. 2.
2. The brief facts leading to the filing of the above appeal are that on or about 10-4-1974, the present appellant filed a private complaint under section 448/380, P. P. C., alleging therein, that the complainant's father, Kirpaldas having obtained a plot on rent from Roopchand Chelaram had constructed a house thereon several years back. It was further alleged that the complainant's mother had fallen ill about 8 months back and, therefore, his father had taken her to Karachi for treatment (where the complainant was residing) after locking the above house containing all household articles, mentioned in para. 9 of the complaint, namely, Sewing Machine, 8 cots, household utensils and clothes. It was further alleged that complainant's father used to visit Mirpurkhas at intervals. 1t was also alleged that on 10-3-1974 the complainant's father came to Mirpurkhas, and was surprised to see that the accused was occupying the premises belonging to his father. (Here it may be observed that according to Mr. Allahdino Memon, learned counsel for the appellant, there is a typing mistake inasmuch as instead of 10th March, 1975 it has been typed as 10th March, 1974. This contention of Mr. Allahdino seems to be correct inasmuch as that the alleged agreement of purchase of the house relied upon by respondent No. 2 indicates that it was purchased some time in January 1975). It was further alleged that the complainant's father inquired from respondent No. 2, as to how he had trespassed into house and took over also the belongings to which respondent No. 2 replied that he had taken the premises from the complainant but he gave evasive reply as to the belongings. It was also alleged that after receiving the above reply, the appellant's father returned to Karachi and after narrating the above facts made inquiries from him. Thereupon, the complainant informed him that he had never permitted any body to occupy the house and that he even did not know the face of respondent No. 2. It was further alleged that the complainant thereafter sent an application to the S. H. O. On 12-3-1975 and also made a representation to S. P., but no action was taken and, therefore, he lodged the aforesaid private complaint. After lodging of the complaint, the learned trial Court made initial inquiry and, thereafter issued process to respondent No. 2. Thereafter, the learned Magistrate framed charge (Exh. 1) against respondent No. 2 under sec--tions 448/380, P. P. C.
3. The appellant filed a list of witnesses in which the following persons were cited as witnesses;
(1) Kirpaldas son of Gurnomal, Hindu, resident of Karachi.
(2) Mohammad Ramzan son of Khuda Bux, Milkman Khan Road; Mirpurkhas.
(3) Ramchand son of Topandas resident of Shahi Bazar, Mirpurkhas.
(4) Ramchand son of Bhola Ram resident of Old Numaeesh, Mirpurkhas.
4. On the other hand respondent No. 2 in his defence examined himself and also 3 witnesses, namely, Versi son of Gordandas, Devaram and Hero Mukhi. The statement of accused was recorded under section 342, Cr. P. C. The learned Magistrate through the judgment under appeal acquitted respondent No. 2 under section 245, Cr. P. C. And also ordered the cancellation of his bail bond. The appellant. Being aggrieved by the above judgment has filed the present acquittal appeal.
5. 2.. (a) Mr. Allahdino Memon, .Learned counsel for 'he appellant in support of the appeal has made the following submissions;
(i) That the learned trial Court committed illegality in holding that,, it was a case of civil trespass, if any, and not of a criminal trespass.
(ii) That the learned trial Court also erred in holding that the alleged delay in the lodging of the complaint was fatal to the complaint.
(iii) That the learned trial Court also erred in holding that the pro--secution has failed to prove the charge beyond reasonable doubt.
(b) On the other hand it has been urged by Mr. Hatif Khudai, learned counsel for respondent No. 2 (which arguments were adopted by Mr. Jalal Baloch, the learned counsel for the State), that the burden of proof of a criminal charge beyond reasonable doubt was on the prosecution, which it had failed to discharge and that the weaknesses in the testimony of defence witnesses or the discrepancies therein cannot prove the charge.
3. (a) Reverting to the first contention of Mr. Allahdino that the learned trial Court erred in holding that it was a civil trespass, if any, it may be observed that the learned trial Court has relied upon the cases of Badruddin v. The State and another 1977 P Cr. L J 89,and the case of Kazi Taj Mohammad v. The State PLD 1962 Kar. 330. It has been vehemently urged by the learned counsel for the appellant that the legal proposition enunciated in the above Lahore case is not the correct law as it is directly in conflict with the provision of section 441, P. P. C. And whereas the above Karachi case is quite distinguish--able from the facts of the instant case. In the above Lahore case it was held that in order to make out a case under section 448, P. P. C., there should be forcible taking of possession and .That if the possession of an immovable property is taken in the absence of the owner, it constitutes a civil trespass. Whereas in the above Karachi case, it was held that where a person by virtue of a general power of attorney executed in his favour by one of the partners of the firm and because of that had a right to enter into the shop and remained there, the mere fact that he had pushed an employee of the shop did not constitute a criminal trespass within the provision of section 441, P. P. C. It was further held that intention referred to in sections 441 and 448 is a question of fact depending on the facts of each case.
6. Mr. Allahdino in support of his above submission has referred to sec--tion 441, P. P. C., which reads as follows; "Section 441. Criminal trespass.-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".- It may be noticed that sub-para: (2) of above section lays down that even when a person originally enters upon an immovable property lawfully, but unlawfully remains there with intent thereby to intimidate or to annoy any such person or with intent to commit an offence, it will also constitute a criminal trespass. Reliance has been placed by the learned counsel for the appellant on the case of Nazir v. The State PLD 1974 Kar. 96, in which a contrary view was taken by a learned Single Judge of this Court, to what was found favour with the learned Single Judge of the Lahore High Court in the above Lahore case referred to hereinabove. It was held in the above Karachi case that it is the intention of an accused and not the physical presence or absence of the owner or occupier of the property would make an offence under section 448, P. P. C. It was further held that if an unauthorised occupant in spite of a request refuses to vacate, it will attract sub-para. (2) of section 441, P. P. C. And will constitute a criminal trespass. Further, reliance has been placed by the learned counsel for the appellant on the cases of Ibrahim and 3 others v. The State 1971SCMR25and the case of Nabi Shah v. The State NLR1980AC62In the above Supreme Court case while dismissing the petition for leave to appeal, it was observed that a criminal trespass is committed when an accused enters upon the complainant's land with intent to dispossess.
7. Whereas in the above Lahore case of 1980 a learned Judge held that entry without intention of committing an offence does not entail liability under section 452, but shall constitute criminal trespass under section 448.
8. The above-cited case supports the above contention of the learned counsel for the appellant. In our view, a criminal trespass can be committed even in the absence of an occupier of the premises in terms of proviso to A section 441, P. P. C. And, therefore, the contrary reasoning given by the learned Magistrate in the order under appeal is not sustained in law.
(b) With reference to the second contention of Mr. Allahdino, that the learned trial Court erred in holding that the complaint was not sustainable on account of the alleged delay, it has been urged by him that according to the complaint, the complainant's father discovered the alleged criminal trespass in March, 1975 and thereafter he made several attempts to get the case registered by sending an application to the S. H. O. Town Police Station on 12-3-1975 and also by making representation to the S. P., and since there was no response, he filed the aforesaid private complaint on 10-4-1975. It has been further contended by him that there was no delay in lodging of the complaint inasmuch as the delay, if any, was reasonably explained. Reliance has been placed on the aforecited case of Nazir v. The State in which a learned Single Judge of this .Court held that if the delay is sufficiently explained the complaint cannot be dismissed on that account. It may be observed that in the aforecited Karachi case there was delay of about 9 months, and the explanation given by the complainant was that he bad lodged report with the Police, but no action was taken. After that be approached the Martial Law Authorities, but there was no response to that as well and finally he filed the private complaint. The above explanation was accepted. The contention of Mr. Allahdino seems to be correct and in our view the learned Magistrate erred in holding that there was any delay in the filing of the complaint as the delay if any, was sufficiently explained.
(c) Referring to the last contention that the learned Magistrate has erred in holding that the prosecution has failed to prove the case beyond reason--able doubt, it may be observed that the learned counsel for the appellant Mr. Allahdino Memon has vehemently urged that once it was proved by the appellant that the house belonged to his father the burden of proof was shifted on respondent No. 2 to prove that he entered into the house lawfully. It was further urged by him that the alleged sale agreement relied upon by respondent No. 2 was not proved inasmuch as alleged witness D. W. Varsi though shown as witness to the agreement in his deposition had stated that he had not signed any agreement and that it was pot executed in his presence. On the other hand, it has been contended by Mr. Hatif Khudai., that in a criminal case the burden of proof squarely lays on the prosecution to prove the case beyond reasonable doubt -and the weaknesses or discrepancies in the testimony of defence witnesses cannot discharge the burden of proof for the prosecution. He - has further pointed out that the appellant has not examined any indepen--dent witness, particularly the neighbourers, but has examined himself, his father and his Bau Ramchand (the complainant's father's Meharaj). Furthermore, there are discrepancies in their statements, inasmuch as the appellant in his deposition stated that be, his father along with P. Ws. Ramcband and Ramchand Topandas contacted respondent No. 2, whereupon, they were told that they could do what ever they wanted to do. However, P. W. Ramchand in his cross-examination has made a categorical statement that he had gone only once to. The accused and that he was all alone.
9. Furthermore, he admitted the factum that he was Meharaj and that appellant's father used to pay him something being his follower. He also stated that the appellant was also his follower. The version given by the appellant's father that in February 1975 when he discovered that the house was occupied by respondent No. 2, on inquiry he was informed by respondent No. 2 that be had taken the same from the appellant and that after bearing this he came back to Karachi in order' to inquire from the appellant, as to whether in fact he had given the house to respondent No. 2 or not does not stand to reason and does not inspire confidence for the reason that admittedly the appellant's father was putting up with him at Karachi all the time. Similarly, the statement .Of P. W.
10. Ramchand (who was supposed to look after the house in the absence of the appellant's father) that when he saw the lock was opened, he made inquiry from respondent No. 2, who told him that the appellant had sold the house to him, but he did not make any inquiry from the neighbours or that he did not inform the appellant's father, also does not inspire confidence. In our view the neighbours or the residents of the Mohalla in question would have been the appropriate witnesses.
11. The appellant has not examined any independent witness.
12. It may be observed that we have deliberately refrained ourselves from adverting to the question, as to whether the agreement produced by respon--dent No. 2 is a forged document or is a genuine document, because it may be an issue in some civil litigation and any observation made by this Court may prejudice the case of either of the parties.
13. We are inclined to hold that on the basis of the evidence produced by the appellant in support of the private complaint, the learned trial Court could have taken the view that. The offences under section 448/380, P. P. C. Were not proved beyond reasonable doubt and, therefore, it cannot be urged that the judgment under appeal is perverse warranting interference by this Court in an acquittal appeal. We, therefore, dismiss the appeal, but leave the appellant to invoke the jurisdiction of civil Court if competently can be invoked.