QAISAR AHMAD HAMIDI, J.- Both these revision applications have arisen out of same Judgments, hence for the sake of convenience they are being disposed of by a consolidated Judgment.
2. The prosecution story lay within a very narrow compass. The house hearing No.3-C-3/4, Nazimabad, Karachi, belongs to Mst Solat perveen, sister of complainant Nafees Alam. A portion of this house was rented out to one Wali Khan, who had accommodated applicant Pasham Gul in the said portion. After the death of Wali Khan this portion was occupied by applicant Pasham Gul and his family members, who did not pay rent to Mst. Solat perveen for a considerable long time and consequently the landlady filed an application against Wali Khan and Posham Gul under section 15 of the Sind Rented Premises Ordinance, 1979, seeking their eviction on the grounds of default in payment of rent and personal requirement. Applicant Posham Gul resisted his eviction by disputing the tenancy. According to the case set up by him he was residing in this house in his own rights as a tenant of one Amin-ul-Haque. The Rent case No. 365 of 1980 was heard by XI\th Rent Controller, Karachi, who allowed the application filed by Mst. Solat Perveen directed premises within a period of 30 days from the date of order, viz, 1.2.1983. Applicant Posham Gul did not vacate the demised premises and consequently a writ of possession was issued and in execution thereof on 8.7.1986 Saleem Shahzad, the Bailiff of the court delivered vacant possession of the said house to complainant Nafecs Alam, attorney of Mst. Solat Perveen, with the help of police party. The house was locked by complainant Nafees Alam who went to fetch his goods. However, on return he found applicants Mst. Sultana, Falak Naz, Posham Gul (Cr. Revision No. 61 of 1991), and Mst. Musarrat (Cr.
Revision No.55 of 1991) breaking open the lock of the said house who took forcible possession thereof within the sight of complainant Nafees Alam. The complainant then rushed to Nazimabad P.S, where his FIR was registered on 9.7.1986 at 12-5 A.M. Shah Nawaz A.S.I took up the investigation.
He proceeded to the scene of the incident and found the applicants in possession of the house in question. After usual investigation all the four applicants were challaned. Applicant Posham Gul who had absconded soon after the incident surrended subsequently. The case proceeded before A.C.M. No.1\ (Central) Karachi, who examined complainant Nafees Alam (P.W-1), Saleem Shahzad (P.W-2), Imran Aziz (P.W-3),Jabir Hussain A.S.I (P.W-4), and Shah Nawaz A.S.I (P.W-5). The applicants met the charge with sr denial. Applicant Posham Gul examined himself on oath. The applicants also examined Munawwar Hussain (D.W-1), and Abdul Haque (D.W- 2) in defence. On the assessm ent of evidence available on record the learned A.C.M. Found the applicants guilty for the offence under section 453 P.P.C, and sentenced each of them to suffer R.I for one year for the following reasons :- In view of the above facts and circumstances, I am of the opinion that prosecution has proved its case from all the corner beyond any reasonable doubt against all the accused persons. The P.Ws have no enmity against the accused, even no question is made from the accused regarding enmity. In my opinion the accused have taken the law in their own hands and did not respect the court order regarding their ejectment after due process of law. Due to this the complainant party is suffering since 1980 and accused are enjoying the illegal possession over a house No.111, C-3/4 Nazimabad, Karachi without any lawful right. As such accused persons do not deserve any leniency. Therefore, I convict and sentence all the accused to undergo R.I for one year U.S.453 PPC.
It is further ordered that possession of the house No. III,C-3/4 Nazimabad be restored to complainant Nafees Alam as provided by section 522 Cr.P.C."
3. This Judgment dated 21.11.1990 was challenged by the applicants in appeal filed before Sessions Judge (Central) Karachi, (Crl. Appeal No. I6 of 1990). Applicant Pasham Gul also assailed the order passed under section 522 Cr.P.C, through Cr. Revision No.40 of 1990. Both these appeal and revision were, however, dismissed by learned, Sessions Judge vide Judgment dated 13.8.1991, who maintained the conviction awarded to the applicants.It is in these circumstances that the present revision applications have been filed.
4. I have heard the learned counsel for the parties and Mr.S.ZA. Qureshi, learned counsel for the State, who has supported the impugned Judgments.
5. The revisional Jurisdiction is to be invoked in a case of extraordinary nature, which cannot be taken as a substitute of second appeal. In Kewal Singh and others vs Emperor, reported in 37 Cr. U 1022, this distinction was made in the following words: - This is an application in revision and not an appeal and the main question which I have to consider is whether substantial Justice has been done. If this had been an appeal, the applicants. No doubt would have been entitled to demand an adjudication upon all questions of fact or law which they wished to raise. As this is not an appeal, the only question is whether this court should interfere in the interests of Justice."
6. Another Judgment on this point is the case of Emperor vs Jafar Khan and others, reported in 36 Cr. In 907, wherein it was observed: - "This is a matter which has come before me in exercise of revisional Jurisdiction and not as the result of an appeal. It is very important and would save much waste of the time of the Courts if it was thoroughly realised that there is a distinction between a revision and an appeal. In the latter the appellant is given a statutory right to demand an adjudication from the court either on a question of fact or a question of law or upon both. When a matter comes up in revisional jurisdiction the applicant has no rights whatsoever beyond the right of bringing his case to the notice of the court. It is for the court to interfere in exceptional cases where it seems that some real and substantial injustice has been done. That is the main point which the court has to consider. A revisional application is not to be regarded as in some sort a second appeal on a question of law."
7. In considering what has been urged upon by both sides in the prolonged arguments, I have constantly had before me the important principle that the court which has had before it witnesses in their own person has an advantage over that court which can study only the written record of what they have said and consequently the assessment of evidence made by the trial court cannot be brushed aside lightly. Ordinarily, the High court would not substitute its own appraisement of evidence for that of the trial court or the Appellate court so long as there is legal evidence to sustain conviction recorded against the accused, unless the finding is found to be perverse resulting into grave miscarriage, of justice.
8. In the present case the evidence. Which was before the Magistrate, if properly read and appreciated was capable of one and only one conclusion and that conclusion was that the applicants had taken law in their own hands by forcibly occupying the house, the possession of which was delivered to complainant Nafees Alam by the Bailiff of the court with the help of police in execution of writ of possession issued by the competent Rent contra-ller.
9. The term "house breaking" implies a forcible entry into a house. The perusal of the record shows that the disputed house belonged to Mst. Solat Perveen, who was successful in obtaining an order of eviction against applicant Posham Gul. On 8-7-1986 Nafees Alam got the possession of this house with the assistance of Saleem Shahzad, Bailiff (P.W-2), and Jabir Hussain A.S.I. (P.W-4) in presence of mashir Imran Aziz (P.W-3). This house was again found in possession of the applicants when Shah Nawaz A.S.I. (P.W-5) inspected the place of occurence after the registration of the case.
In such a situation the contention of learned counsel for applicants that it was at the most the case of "civil trespass" and not of "criminal trespass" is devoid of any force. The cases of Abdul Gafur alias Kalva and 8 others vs the. State, reported in 1968 P. Cr. In 972, Muhammad Ashraf vs Faiz Ali and 11 others, reported in PLD 1975 S.C 556, and Abdul Rashid and another vs the State, reported in 1983 P. Cr.LJ 42, are again distinguishable.
10. The conclusions arrived at by the Courts below cannot in any sense be said to be unreasonable far less perverse or distorted. The revision applications have got not merits and are accordingly dismissed. The applicants who are on bail shall surrender before the trial court forthwith for serving out the unexpired portion of sentence. In case they fail to appear before the said court it shall take necessary steps for remanding them to custody. As a necessary corollary to this finding the order passed under section 522 Cr.P.C, is also maintained. The possession of the house iii question will be restored to complainant Nafees Alam within one month.