' Muhammad Usman son of Muhammad Hayat respondent was tried for the charge under section 448, P.P.C. by the learned Magistrate Ist Class, Gujrat who vide judgment, dated 28-1-1988 convicted him and awarded the sentence of imprisonment till rising of Court with a fine of Rs.1,000 and in default of payment of fine to undergo three months' S.I. His conviction and sentence was set aside by the learned Additional Sessions Judge, Gujrat in appeal vide judgment, dated 20-4-1989 and he was acquitted.
2. Muhammad Aslam Baig son of Mirza Nawab Baig has filed this revision petition challenging the acquittal of Usman respondent.
3. The brief facts of the case as per complaint Exh.PA. lodged by the petitioner on the basis of which the case was registered are that he and his younger brother Muazam Baig jointly owned one ancestral house each in Barri Gali near Bus Adda Jalalpur Jattan which was in occupation of Mst.
Fatima, a widow, as tenant. The younger brother of the petitioner died on 22-2-1979 and his legal heirs became entitled to half of the share in the joint property. Usman respondent got residential house adjacent to the ancestral house belonging to the complainant and his deceased brother.
After the death of Mst. Fatima, Usman respondent broke the common wall between the two houses and by installing the door unauthorisedly occupied the house belonging to the complainant party.
A Punchayat was convened where Usman respondent claimed that he purchased half portion of the house in question but could not produce any document in this behalf. A case for unauthorisedly taking over possession and installing the door after breaking the common wall was registered vide FIR alt. P.S./1. The prosecution, to establish the charge, examined Fazal Elahi P.W.1, Aslam Baig P.W.2, Allah Ditta P.W.3, Arshad Baig P.W.4 and Asif Baig P.W.5 who categorically supported the contents of the complaint. Zafar, Moharrir Head Constable P.W.6 recorded the F.I.R.
4. The accused-respondent denied the charge and pleaded innocence and produced Abdul Hameed, Bashir Ahmad and Rafi D.Ws. and also himself appeared as his own witness.
5. I have heard the learned counsel for the parties and perused the record carefully. The sole question for determination is whether from the contents of the complaint Exh.PA. and facts and circumstances of the case, the offence of criminal trespass is made out or not. Admittedly, the respondent occupied the house in question after the death of Mst. Fatima and in absence of the petitioner and other family members at the time when the house was either vacant or abondened.
It is clear from the prosecution evidence itself that the respondent occupied the premises without use of force, rather he claims to have purchased the same from Asif Baig, nephew of the complainant. The facts, therefore, suggest that there was dispute between the parties with regard to the possession and ownership of the house, The prosecution has to establish the factum of force or dominant intent to enter into the premises and to commit the offence or to insult, intimidate or annoy the occupants but in the A case in hand there was no occupant of the house at the relevant time and, therefore, essential ingredients for criminal trespass are not found in the case in hand.
The evidence produced by the prosecution simply reveals about the matter of installation of door and occupation of house by the respondent.
6. Keeping in view the facts and circumstances of the case, I find no exception to the conclusion arrived at by the learned Additional Sessions Judge. This revision petition having no substance fails and is dismissed accordingly.