' This revision application is directed against the order passed by the 3rd Additional Sessions Judge, Karachi dismissing the first revision application filed by the petitioner under section 438, Cr.
P. C. Declining to interfere in a case of direct complaint filed by one Aftab Hussain against the petitioner and others for offences under sections 448, 452, 324, 325/34, P. P. C. #TBS . #TBE
2. The facts leading to this petition in brief are that respondent Syed Wazir Abbas had married the daughter of complainant Syed Aftab Hussain and taken her to London. As there was disagreement between the spouses Syed Wazir Abbas divorced his wife. During the subsistence of the marriage Wazir Abbas had executed a power of attorney in favour of complainant Aftab Hussain-to get a lease of the plot in Pakistan and to construct the same on his behalf. Aftab Hussain, as claimed by him, raised the.Construction at a cost of Rs, 40,000 and this amount still remained to be paid to him by Syed Wazir Abbas. Aftab Hussain, therefore, continued to remain in. -possession of the plot and building constructed by him and as alleged by Aftab Hussain he carried on the business of a motor-repairing garrage under the name of Aftab Autos in the said house. Meanwhile Syed Wazir Abbas revoked the power of attorney and tried to get back possession of the house and plot with the help of his relations without settling the claims of Syed Aftab Hussain regarding the amount spent on the construction. On 29-1-1974 it is said, Syed Wazir Abbas and other respondents came into the house in occupation of Syed Aftab Hussain and tried to recover possession by force and inflicted blows on the head of the complainant and stabbed him with a knife. The matter was reported to the police who instituted proceedings under section 107, Cr. P. C. Against both the parties. Meanwhile Syed Wazir Abbas alongwith the other accused made a second attempt to obtain forcible possession of the house. The complainant accordingly filed a direct complaint in the Court of A. C. M. 11, Karachi who issued bailable warrants against all the accused for offence under section 448, P. P. C. One of the accused, namely, Mumtaz Hussain, brother of Syed Wazir Abbas then filed a revision application in the Court of Session, Karachi which was dismissed by the 3rd Additional Sessions Judge, on the ground that there was a prima facie case of attempt at forcible dispossession of the complainant from the house and the legal justification for such entry could only be appreciated by the trial Court after recording evidence. Feeling aggrieved by this order the petitioner has moved this second revision application in the High Court.
3. It has first been argued by Mr. Zia Qureshi on behalf of the petitioner that the second revision application is maintainable even after the amendment of section 439, Cr. P. C. Because this revision application is to he read with section 561-A, Cr. P. C. And the powers of quashment are with the High Court alone.
3. Mr. Zia Qureshi has then pointed out that Syed Aftab Hussain was only an attorney and holding possession on behalf of his principal. The moment the power of attorney was revoked the principal could enter upon the property even by force if necessary and no criminal offence had, therefore, been made out. The learned Advocate has referred to decisions of this Court reported in PLD 1962 Kar. 330 and PLD 1963 Kar. 180 to show that entry upon land made under bona fide claim of right, however, ill-founded in law, does not become criminal merely because annoyance is caused to the occupant. The learned Advocate has also referred to a decision reported in PLD 1964 SC 177 to show that intention to intimidate, insult or annoy could not be established where there was justification for entering upon the land.
4. It has on the other hand been pointed out by Mr. R. A. Qureshi on behalf of the State that according to the allegations in the complaint, complainant Aftab Hussain had raised the construction on the plot with his own money and was in occupation of the house for a period of eight years and was running the business of a motor garrage in the said premises; that the petitioner and others had admittedly tried to effect the entry by force and they had caused serious injuries to the complainant and his son ; that it was, therefore, for the trial Court to determine how far they were justified in the use of force for obtaining possession from the complainant Aftab Hussain.
' It is true that the complainant has made out a prima facie case for criminal trespass, For determining the question of liability for the criminal offence or the legal justification for such forcible entry it would become necessary to go into the entire evidence, the history and the antecedents of this case and to study the various documents, namely, power of attorney, the contract for construction of the house etc. All this cannot be done in the High Court in the course of this petition under section 439 read with section 561-A, Cr. P. C. The petitioner has a remedy to establish his bona fides in the trial Court where the case is pending. It is also doubtful whether the petitioner could file a second revision application after the first one was dismissed by the Court of Session on the plea that this revision application was to be read with section 561-A, Cr. P. C. There is thus no reason to interfere in this case pending before the Additional City Magistrate, Court No, XI, Karachi which may now be decided strictly on merits irrespective of any observations that might have been made in the course of this order.
5. The revision application is accordingly dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.