This is a Criminal Revision preferred on behalf of Takri Moosa Khan under section 435/439 Cr.P.C. against the impugned judgment passed by learned Sessions Judge Kalat at Mastung whereby the order dated 7-9-1997 passed by Assistant Commissioner/M.F.C. Soorab has been up-held whereby petitioner was convicted and sentenced to undergo R.I. for two years and fine of Rs,10,000 under sections 427 and 420, P.P.C.
2. Briefly stated the facts of the case are that Muhammad Ibrahim (complainant) filed a complaint in the Court of Assistant Commissioner Soorab alleging therein that the petitioner sold his lands located in Mouza Rodini. An enquiry was conducted by Naib Tehsildar Soorab and subsequently after completion of trial the petitioner was convicted and sentenced to undergo R.I for two years and fine of Rs,10,000 by Assistant Commissioner M.F.0 Soorab. An appeal preferred before learned Sessions Judge Kalat at Mastung was rejected, hence this revision.
It is mainly contended by Mr. Salauddin Mengal, Advocate that both the Courts below have not appreciated the legal and factual position in its true perspective which resulted in serious mis- carriage of justice. It is next contended that initially the dispute pertains to lands and therefore, it should have been decided by Civil Court having competent jurisdiction but on the contrary criminal proceedings were initiated and petitioner was convicted without any lawful justification as no incriminating material whatsoever was available to infer that any offence has been committed under sections 420 and 427 P.P.C. It is next contended that initially the complainant being an influential person moved an application to the worthy Chief Minister and without completion of legal formalities District Magistrate handed over the land in dispute to the complainant who subsequently filed complaint in the Court of Assistant Commissioner Soorab and succeeded in getting the conviction of petitioner so that he could harass the petitioner and refrain him from taking any legal action against him. It is urged with vehemence that the judgment of learned Sessions Judge is neither speaking nor contains any reason and without discussing the evidence which has come on record the appeal filed by the petitioner has been dismissed which resulted in serious mis-carriage of justice. It is also pointed out that learned Sessions Judge even failed to formulate the points for determination and the record of the case was never perused thoroughly. It is further contended that the provisions as contained in sections 420 and 427 P.P.C. are not applicable in this case and as such the question of conviction does not arise. It is pointed out that petitioner is lawful owner of the land in question which can only be got vacated in accordance with law and the question of ownership can only be determined by a competent Court of law having civil jurisdiction to decide such controversies and the land in question cannot be handed over to the complainant by adopting unlawful tactics.
4. Raja M. Afsar, Advocate appeared on behalf of respondent No,2 and argued that no illegality or infirmity whatsoever has been committed by the learned trial court and each and every aspect of the matter was taken care of properly as such there is no justification for any interference. He conceded frankly that the judgment passed by learned Sessions Judge is not exhaustive one but supported the same on the ground that the matter was initially decided by the Court of A.C./M.F.C. and as such it was not obligatory for the learned Sessions Judge to reproduce and discuss the entire evidence in impugned judgment. It is also contended by Raja M. Afsar, Advocate that land in question was mutated in the name of complainant and as such it could not have been sold by the petitioner and thus he has committed offence under sections 420 and 427, P.P.c. and besides that petitioner failed to establish any illegality. Mr. Abdul Karim Khan Yousafzai appeared on behalf of State and followed the arguments of Raja ' M. Afsar, Advocate with further submission that conviction could have been awarded under section 447, P.P.C. and therefore, the case may be remanded for re-writing of judgment. He, however, admitted that the learned Sessions Judge has not appreciated the evidence which has come on record and the impugned judgment is not in accordance with provisions as contained in section 367 Cr.P.C.
5. I have carefully examined the respective contentions as adduced on behalf of parties in the light of record of the case and relevant provisions of law. I have also perused with care and caution judgment of A.C/M.F.C. Soorab dated 10-9-1997 and judgment of learned Sessions Judge Kalat at Mastung dated 6-10-1997. The evidence as led by the parties has been thrashed out. The statement of Muhammad Ibrahim (complainant) revolves around the fact that the land in question was mutated in his name and he also obtained loan from Agriculture Bank. The statement of Abdul Samad (P.W.1) had stated that one piece of land was purchased from petitioner and a house was built wherein he is residing but expressed his ignorance as to whether Muhammad Ibrahim was the owner of the land in question. Muhammad Alam (P.W.2) has deposed that he purchased a piece of land from petitioner and showed his willingness to vacate the land subject to re-payment of the amount paid for it. Syed Jamal Shah (Naib Tehsildar) has conducted investigation and got recorded the statements of complainant, petitioner and witnesses. The Revenue Record was also called which showed that the land in question was mutated in name of Muhammad Ibrahim. The statement of petitioner was also got recorded which is indicative of the fact that he was owner of the land in question and complainant namely Muhammad Ibrahim was having no concern whatsoever with it. He also deposed that land in dispute remained in his possession for the last so many years which was given to him by Sardar Moosa Khan son of Sardar Muhammad Akram. A careful scrutiny of the evidence would show that a dispute exists in between the parties regarding the land in dispute and mutation itself cannot be considered as a sole proof of ownership. In this regard, 1 am fortified by the dictum laid down in 1993 MLD 763. A careful scrutiny of the record would show that Assistant Commissioner/M.F.C. failed to frame &proper charge and manner of deception was never stated and on this score alone the entire proceedings are null and void. In this regard PLD 1957 S.C. 257 can be referred. I have not been persuaded to agree with Mr. Abdul Karim Khan Yousafzai that conviction could have been awarded under section 447 Cr.P.C. It is well settled by now that "To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or, at any rate, constituted no more than a subsidiary intent. (1951) A.0 83). The existence of bona fide claim of right is not irrefutable evidence of the absence of a criminal intent. (1881) 1 Weir 520. See
(188) 7 Cal. 26; (1906) 11 C.W.N. 467, 5 Cr. L.J. 278.). But where the accused acts on a belief of his own right, he cannot be held guilty of criminal trespass. (1907) 7 C.L.J. 238, 7 Cr.L.J. 312, 15 Cr.L.J. 725, (1915)
AIR (C) 236; (1916) 43 Cal. 1143; 19 Cr. L.J. 704, (1918) AIR (A) 365; (1936) 38 Cr.L.J. 759 (1937) AIR (R)
132.). It should be found distinctly whether the entry of the accused upon the land was in the exercise of a bona fide claim of right, or with one of the intents requisite to constitute a trespass criminal within the meaning of this section. If the accused entertained the belief in good faith that he was entitled to the possession of the land, his entry and continuance on it would constitute a trespass, on the land for which he would, if he failed to prove his title, be answerable in a civil suit, but would not be liable to a criminal charge. If, on the other hand, the circumstances are such that he could not have entertained such a belief in good faith, it would be a fair inference that he intended the annoyance which his action must have caused to the complainant, and the conviction would be proper" (1923) 24 Cr.L.J. 929, (1923) AIR (R) 157; (1938) 40 PLR 757, 40 Cr.LJ 180, (1938) AIR (L) 848).
In the case of Sumasamy Selvanayagam v. The King. (52 Cr.L.J. 73) which case has been referred to by this Court in a number of reported cases under sections 441 and 448, P.P.C. the Privy Council held that- "To establish criminal trespass, the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent".
In this every case their Lordships of the Privy Council also stated that- "Entry upon land, made under a bona fide claim of it, however ill-founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant".
On the touchstone of the criteria as laid down in the abovementioned cases it can be said with certainty that no trespass has been committed and as such the question of conviction under section 447 P.P.C. as suggested by State counsel cannot be awarded. It appears that controversy was that of a civil nature which has been converted into criminal proceedings without examining the crux of the matter by learned Trial Court which resulted in grave mis-carriage of justice on the one hand and petitioner suffered agony of protracted trial on the other and in such view of the matter re-writing of judgment or remand of the case would not serve any useful purpose. It was held in case titled Arjad All and another v. The Crown-3 D.L.R. 13 as follows:- "Every unlawful entry does not amount to criminal trespass. The essence of section 441, Pakistan Penal Code which defines criminal trespass is the intent with which the entry is made and in every case the intent must be either to commit an offence or to intimidate, insult or annoy person in possession of such property. The section does not penalise unlawful entry with any other intent, such as mere intent to take possession. The Court must come to a clear finding that the entry with one or more of the intents mentioned in section 441, Pakistan Penal Code. Failure to come to such finding amounts to a failure to decide a vital point in the case". (PLD 1952 Dacca. 261)".
I have observed with grave concern that learned Sessions Judge has acted quite arbitrary as before passing the impugned judgment, he did not care to have gone through the record of the case with such prudence as his judicial office demanded of him. He has simply toed the line so ill- foundedly drawn by the Assistant Commissioner/M.F.C. The judgment passed by the learned Sessions Judge is violative of the provisions as contained in section 367 Cr.P.C. It is well settled by now that "normally minor omissions and commissions were curable and could be ignored on finding deficiency by appellate Court, but on account of failure to specify points of determination, absence of decisions about contentions raised in the matter and total lack of reasonings clearly constituted a material defect of judgment which could not be conveniently overlooked". (PLD 1987 Quetta 174 + 1986 P.Cr.LJ 2535). In appeal it is bounden duty of appellate Court to examine the entire record with care and caution, thrash out the evidence and peruse the relevant provisions of law to see whether it can be made applicable or otherwise. The learned Sessions Judge has reproduced the provisions as contained in sections 420 and 427, P.P.C. but did not bother to mention as to how the provisions as contained in Section 420 P.P.C. and section 427 P.P.C. can be made applicable to this case in view of its peculiar history. In so far as the sale of land is concerned that was certainly made under the bona fide impression and the essential ingredient of an offence which is commonly known as mens rea is lacking in this case and as such the question of conviction does not arise. In this regard I am fortified by the dictum laid down in SCMR 1982-786.
The upshot of the above discussion would be that the judgment dated 6-10-1997 passed by learned Sessions Judge Kalat at Mastung and order dated 10-9-1997 passed by Assistant Commissioner/M.F.C. Soorab respectively are hereby set aside and the revision is accepted.
These are the reasons for my short order dated 12-1-1998.