' Mushtaq Ahmad Qureshi, Advocate-petitioner has come up under section 561.A, Cr P.C. Seeking quashment of the proceedings pending against him in a case registered under section 448, P. P. C.
On 14-9-1979 at Police Station Mozang, on the ground that the petitioner was a tenant under respondent-complainant and that the criminal case was got registered with ulterior motive to get the petitioner evicted illegally and as such the proceedings are an . Abuse of the process of the Court.
2. Respondent-complainant's' case is that petitioner's 'brother was a tenant in a portion of the building comprising of 2 rooms and a bath room and that the petitioner used to work with his brother in one of the rooms but somewhere in July, 1979, petitioner broke open the lock of another room situated in the opposite direction of the aforesaid two rooms. A report to this effect was made to the police but the Investigating Officer did not register a case instead reported that the dispute was of a civil nature. Complainant then filed a writ petition and the local police was directed to act according to law. It was, thereafter, that the case was registered in August, 1979, which was investigated and sent up for trial.
3. Learned counsel for the petitioner contended that the premises in dispute were in fact let out to the petitioner in April, May, 1978, and the petitioner had been paying rent to complainant- respondent's daughter who is the real owner of the property. Petitioner has four receipts issued in his name.. It was argued that since the landlady wanted to enhance the rent, apprehending unlawful eviction, petitioner filed a suit for the issuance of a permanent injunction restraining the respondent from evicting him unlawfully. On 6.8-1979, temporary injunction was issued. On 10- 11.1979, the matter concluded on the statement of the respondent that the petitioner was not his tenant and that he would not dispossess him illegally. Learned counsel for the petitioner contended that by making the aforesaid statement before the civil Court, the landlady had accepted him as a tenant. To my mind, this interpretation does not follow from respondent's statement because he clearly asserted that the petitioner was in an unauthorized possession. It may also be mentioned at this stage that the respondent did not accept having issued the said four receipts about the room in dispute. According to him, these are a forged. Learned counsel for the petitioner submitted that in his statement under section 161, Cr. P. C. The complainant bad accepted petitioner and his brother as their tenants. Explaining this statement, it was contended that in fact the statement referred to other two rooms in which petitioner's brother was a tenant and the petitioner used to work with him in one of the rooms. Again there is a controversy with regard to the extract from the register of the Excise and Taxation Department, wherein petitioner is shown as a tenant but the respondent has denied the correctness of this entry and said that he has taken up the matter with the concerned Department. This is again controverted by the petitioner who said th4t the matter has not so far been taken up by the respondent before the Excise Department. Be that as it may, one fact has clearly emerged out of the submissions of both sides i. e. a finding with regard to the nature of petitioner's possession cannot be given by this Court in this petition because on mere statements and unproved controversial documents, it will not be proper to hold at this stage whether the petitioner is a tenant Or a trespasser. It is one of those cases in which without recording evidence a finding either way will be beyond the scope of the provision of section 561-A, Cr. P. C. Which does not contemplate a summary trial by the High Court. There is a controversy at every step and about every document which can only be resolved at the trial.
4. It was vehemently argued on behalf of the petitioner that being a civil trespass the matter could not be taken to a criminal Court for prosecution under section 448, P. P. C. Because taking of possession of property without consent of the person in possession in a peaceful manner did not amount to a criminal trespass. It was next contended that since the informant was not present at the time of the alleged trespass there was, therefore, no question of annoyance to any person as such the offence of trespass was not made out. In this regard, reliance was placed on Badrud Din v.
State (1). In the cited case which came up in revision before the High Court one Mst. Muhammad Bibi who was an owner in possession of a portion of her own house. In July, 1972, she shifted to a different locality to live with her brother after locking up the portion of the house which she bad occupied. In her absence the respondent in that case allegedly took over possession of that portion including the household effects which she had left behind. Feeling aggrieved, Ms:.
Muhammad Bibi made an application to the S. S. P., a case under section 448, P. P. C. Was registered. It was pending when Mst. Muhammad Bibi died. The respondent took up the plea that in 946 the house had been gifted to him by Mst. Muhammad Bibi and he had been in its possession since then. The respondent also brought a suit against her claiming ownership of the house and a stay order had been issued in favour of the respondent in that case which was pending when the matter came up before High Court in a revision petition filed by Radar Din brother of Mst.
Muhammad Bibi. Mst. Muhammad Bibi was also said to have executed a will in favour of her daughter Mst. Ghulam Fatima in respect of the whole house; whoever the accused in that case were discharged because the tenants who lived in a portion of the same house were not examined. Further, that a civil suit was pending and only the civil Court could finally determine whether the gift deed or the will was genuine and effective. It was also observed that the prosecution had failed to prove that the accused had forcibly taken possession of the disputed house. Consequently, the complaint was dismissed which Badar Din, her brother wanted to revive through a revision. It was dismissed with the observations that in so far as the offence punishable under section 448, P. P. C. Was concerned, it was necessary that either forcible possession should have been obtained or the intention should be to cause annoyance to any person. In the cited case, since the possession was allegedly taken in the absence of Mst. Muhammad Bibi and her tenants; so even if it be believed that the respondent took the possession without the permission of Mst. Muhammad Bibi, it would amount to a civil trespass, but not a criminal trespass. It could not be said that the intention was to annoy Mst. Muhammad Bibi because at the time the trespass is alleged to have been made, she was not present and was not living in the house. Taking of peaceful possession of immovable property, without the consent of the person in possession does not amount to a criminal trespass.
5. With due deference to these observations, I am of the view that the essence of the offence of criminal trespass is the intent in committing the offence and not the presence or absence of the person against whom that intent is held. Intention to annoy may be there in spite of the fact that the person against whom that intention is held may not be present at the time of entry. A person is presumed to intend the inevitable and natural consequences of his act. The objection seems to be based on the view, that if the person to be annoyed is not present on the premises, then the offender cannot be saddled with the intention of annoying such a person. Surely, in defining the offence of criminal trespass, the intention of Legislature cannot be taken to be that a person in possession of land, house or shop should be physically present all the time. In this context, it would be useful to compare the offence of trespass with that of theft. If the owner of the property is absent
(1) 1977 P Cr. 1, 89 from his house or land, the immovable property that is lying in his house or on his land would be in his possession wherever he may be. The concept c of possession of property has been further made clear in section 27 of the Pakistan Penal Code which reads as follows:- "When property is in the possession of a person's wife, clerk or servant, on account of that person, it is in that person's possession within the meaning of this Code."
This provision clearly indicates the intention of the framers of the Penal Code that it has taken care of every day situation of life and have made provisions for the protection of possession of movable or immovable property of everyone. In a situation other than the one mentioned in section 27 of the Penal Code if a person leaves behind no one in the house, locks it up and goes away for sometime, the movable property inside the house and premises itself in law would remain in his possession wherever he may be. Such property is different from abandoned property because the one which is D abandoned will cease to be in possession of a person. Obviously if something is voluntarily thrown away is ceased to remain in possession of that person. It would thus follow that there has to be a voluntary act to renounce possession, only then it will cease to be in possession of the person who abandons 'it. So long as property is in possession of a person, he will have all the protection against offence defined in the Penal Code affecting property. For the foregoing reasons, this petition is dismissed with the observations that the question of facts which are controversial and which cannot be disposed of without assessing evidence, shall be determined by the trial Court.
The record of the trial Court be sent back forthwith for further proceedings.