' Haji Muhammad ice, his three sons, widow and two daughters-in-law faced a trial on charges of wrongful confinement and house trespass under section 342/448/34, P. P. C. Allegations are, in brief, that the accused respondents committed a criminal trespass and after putting Khair Din P.
W., private servant of the complainant, under illegal confinement forcibly occupied the Baithak of the house under the lawful possession of the complainant as a tenant on his back at 09.00 hours on 27-4.1979.
2. In support of the case the prosecution examined some 14 witnesses out of Muhammad Ibrahim Shauq the complainant, his private servant Khair Din, his earlier landlord Abdur Rehman and the I.
0. Are the material witnesses to affect the fate of the case. The learned. Magistrate 1st Class, Haripur, the trial Court dubbed the complainant, his private servant Khair Din and Abdur Rehman as interested witnesses and accordingly disbelieved them. One Mustafa and three others from the neighbourhood were mentioned as P. Ws. They were abandoned at the trial. The trial Court accordingly drew an adverse inference against the prosecution on this score. Ibrahim Shauq the complainant has not mentioned the fact of using the Baithak as Office and Khair Din P. W. As Chaukidar of the Office in the F. I. R. So, Abdur Rehman P. W. Has also not made a statement as above in his examination under section 161, Cr. P. C. While they made the statements to the effect at the trial. Hence the Court discredited their testimonies at the trial under the rule of improvements.
Khair Din P. W. Had allegedly not explained at the trial the manner of his release from the illegal confinement. There were pointed out some other discripancies in his evidence when before the police he had stated that he was sitting on a cot in front of the Baithak at the time of occurrence while at the trial he had stated to be present in the Baithak at the time of the occurrence. In view of the above the Court found that the prosecution had failed to prove its case by a quality and standard of evidence expected of it in a criminal trial. He had accordingly extended them the benefit of doubt and acquitted the accused respondents under section 245, Cr. P. C. By his judgment and order dated 23-12-1980.
3. Herein the dispute revolves around the fact if Baithak had been rented out to the complainant along the other rooms of House No, 869 and he had been in the actual possession of the `Baithak' wherefrom he had been forcibly dispossessed by the accused respondents on the day of occurrence or that the Baithak had never been rented out to him and its possession had throughout remained with the owners when ultimately the possession thereof has been delivered to Haji Muhammad Jee (accused), the successor-in-interest through a pre-emption decree.
4. There has been brought on file documentary evidence in copy of ejectment petition filed by Haji Muhammad Jee accused respondent as against. Muhammad Ibrahim Shauq the complainant in respect of House No, 869 or the house which was decreed to him in the pre-emption suit ; copy of plaint in a declaratory suit filed by Abdur Rehman etc. Against Haji Muhammad Jee (accused) and Muhammad Ibrahim Shauq (complainant) in respect of a house comprising 5 rooms and the disputed Baithak, containing a statement about the occupation of the house by Muhammad Ibrahim Shauq complainant as a tenant and in the suit a relief was prayed that the pre-emption decree with regard to the house obtained by Haji Muhammad Jee (accused) was void and inoperative, copy of the order of the Court in execution application titled Haji Muhammad Jee v.
Abdur Rehman etc. Including Muhammad Ibrahim Shauq the complainant vide `Dakhal Malkana' of the house was delivered ,to Haji Muhammad Jee the decree-holder (accused) on 4-3-1979, copies of the warrants of possession regarding the delivery of `Malkana Dakhal' of the house which were duly executed and a copy of the registered sale-deed in respect of the house comprising 5 rooms, a `Baithak and courtyard etc. Having been sold to Abdur Rehman etc. The above documentary evidence has not been taken into consideration by the trial Court in delivering the judgment. I refrain to discuss the evidence contained in the above documents in any detail lest it may prejudice the prosecution or the accused. The documents are, however, likely to materially affect the merits of the case. As such the exclusion of the material evidence from consideration by the trial Court shall justify the ,interference by this Court in the exercise of its revisional jurisdiction.
5. Mustafa etc. The prosecution witnesses from the neighbourhood were abandoned and accordingly an adverse inference was drawn against the prosecution. There has, however, been filed an application by the complainant that Ghulam Mustafa the prosecution witness was the neighbour of the accused. Who had already appeared as a witness in a criminal case against him and that he has been cited as a witness o the prosecution at the behest of the accused respondents and he was, therefore, to request the Court for his abandonment. The Court ordered his application to be placed on file. There was not made any reference to the said application in the judgment by the trial Court. In view of the application with the allegations therein the trial Court was not justified to draw an adverse inference against the prosecution for non-production of Ghulam Mustafa as a prosecution witness at the trial.
6. The trial Court was also found adversely disposed to the prosecution for non-mentioning of the fact in the F.
1. R. By the complainant that the disputed `Baithak' of the house was being used by him as office for the last 14 years and that Khair Din P. W. Was Chaukidar in the office although he had made a statement to the above effect at the trial. F. I. R. Is not a document to contain minutest details of the occurrence, not to speak of the details of the collateral facts that the disputed `Baithak' of the house was being used by the complainant as his office for sometime and that Khair pin p. W was a Chankidar in his office. It is rather duly mentioned in the R. That the complainant had left behind Khair Din Chaukidar to look after the house.
7. Trial Court has discredited Khair Din P. W. For having not explained his release from the illegal confinement although he had stated that he was first confined in the Baithak/house when the door was closed and chained from behind and that later on the door was opened and the complainant's articles were thrown out of the Baithak and the accused respondents placed their luggage in the Baithak. Without commenting upon the value of his statement the observations of the trial Court. Nonetheless, appear to be based on misreading of the evidence to the effect.
8. There have been arraigned accused in a number of seven i,e, in number of five or more who had allegedly assembled with a common object to commit criminal trespass or other offence. An offence committed b any member of such assembly in prosecution of the common object of that assembly has to incur him a vicarious liability under section 149, P. P. C. Thus, in the facts of the case the accused were to be charged 0 under section 342/448;149, P. P. C. And not under section 34, P. P. C. For a constructive liability on their part. It appears that the learned trial Court had not conducted the proceedings in a manner warranted under the law. Anyhow in view of the evidence on record, particularly with reference to the statement of Khair Din P. W. The only eye-witness who has simply mentioned unspecified number of unnamed women having also not identified them at the trial to have only accompanied the male accused at the time of occurrence without active participation, the learned counsel for the complainant and the complainant himself were to state a the the bar as not to press the case against the women accused and that being he position the number of the accused would. Be reduced to four, ,now t be covered by section 34, P. P. C.
9. In view of what has been stated above this Court has found improper appreciation of evidence on the part of the trial Court in disbelieving the testimony of the witnesses not on reasonable grounds but on mere speculation. It is not a case that the oral testimony of the witnesses was wholly unreliable. In the facts of the case the trial Court was to appreciate the evidence in a proper perspective and at the most t look for corroboration of the oral testimonies in material particulars b other reliable evidence.
19. As a result I would accept this revision petition, set aside the judgment and order of the Court of Magistrate 1st Class, Haripu dated 23-12-1980 and shall remand the case for retrial as against the male accused only. Mr. S. Asmat. Ali Shah, Magistrate 1st Class, must not continue the Presiding Officer of the Court at the time. The case shall be heard by his successor or any other Magistrate of the 1st Class to whom the case is entrusted for disposal by the District Magistrate Abbottabad. The Court would be at liberty to call for the original record of the documents placed on the or may call for other evidence deemed proper for disposal of the case in accordance with law.