1. This application arises out of conviction and sentence of the petitioners under section 448 of the Pakistan Penal Code. The case against the petitioners was started upon a petition of com--plaint filed by one Nagendra Nath Roy alleging that on 7th Agrahayan 1372 B. S. Corresponding to 23-11-65 the petitioners being armed with deadly weapons entered into his homestead land and druesed him and members of his family from the but in his possession. The petitioners were duly summoned and a charge under section 448 of the Pakistan Penal Code was framed against them.
2. They pleaded not guilt), to the charge and their case was that petitioners Ruhul Amin and Mujibar Rahman were in possession of the properties of the complainant and his co--sharers in Pakistan by exchange with their properties in India and that a false case was started against them. Both the Courts below found upon evidences that the petitioners had entered into the but in possession of the complainant by taking resort to force and that so far as the complainant was concerned there was nothing to show that he had actually exchanged his property with the petitioners Ruhul Amin and Mujibar Rahman. Upon such findings the petitioners were convicted under section 448 of the Pakistan Penal Code by the trial Court which imposed a sentence of rigorous imprisonment for 3 months and a fine of Rs. 200 each, in default to rigorous imprisonment for 3 months each and further directed that the petitioners be evicted from the but under section 522 of the Criminal Procedure Code. On appeal the learned Assistant Sessions Judge of Faridpur confirmed the order of conviction but reduced the sentence to a fine of Rs. 110 each, in default to rigorous imprisonment for 15 days each and maintained the order of eviction passed under section 522 of the Criminal Procedure Code. Thereafter, the petitioners obtained this Rule.
3. Mr. Kazi Abdul Wahab, learned Advocate appearing on be--half of the petitioners contended that the charge as framed in this case under section 448 of the Pakistan Penal Code was bad in law, inasmuch as it did not mention that the petitioners entered the disputed but with any of the intents specified in section 441 of the Pakistan Penal Code and the conviction and sentence passed under section 448 based upon such charge cannot be sustained. In support of his contention he referred to a decision of this Court in the case of Abdul Gafur and others v. The State (20 D L R 428). On the other hand, Mr. S. S. Halder, learned Advocate appear--ing on behalf of the opposite-party contended that since both the Courts below found that the petitioners had entered into the dwel-- ling but of the complainant with force, an intent to annoy the complainant can be inferred there from and accordingly the con--viction of the petitioners cannot be said to be bad in law. In this connection he referred to a decision of our Supreme Court in the case of Jane Alam v. The State (PLD1965SC 640 In the instant case in the charge under section 448 of the Pakistan Penal Code, it was stated that the accused persons had entered into the dwelling but of the complainant "with intention to forcibly possess the said but and to live there". Both the Courts below upon discussion of evidences came to a concurrent finding that the petitioners had forcibly entered into the dwelling but of the complainant. The trial Court did not record any finding regarding the intent of the accused but the appellate, Court held that this entry was "with the intent of occupying it by force as alleged by the prosecution". It is true that neither the charge specified any of the intents contemplated under sec- -tion 441 of the Pakistan Penal Code to constitute an offence of Criminal trespass nor did the Courts below, on the facts proved, took pains to record a finding regarding the criminal intention of the accused. The question that arises is, does the omission vitiate the conviction of the petitioners under section 448 of the Pakistan Penal Code? In the case of Jane Alam v. The State our Supreme Court observed that there can be no direct proof of the intent which is a matter of inference from the nature of the act committed and the circumstances in which it is committed and their Lordships upheld an order of conviction and sentence passed under section 447 of the Pakistan Penal Code from the fact of entry of the accused on the land belonging to another from which an inference could be drawn that the inten--tion of the accused was to annoy the complainant.
4. Applying the principle laid down by the Supreme Court, an inference can be drawn, in this case, that the intention of the petitioners in taking forcible possession of the dwelling but was to annoy the com-- plainant, who was found by both the Courts below to have beenin possession of the said dwelling hut. Hence I have no hesitation in accepting the contention raised by Mr. S. S. Haider that the conviction of the petitioners under section 448 of b Pakistani Penal Code cannot be said to be bad in law.
5. Mr. Abdul Wahab argued that there is nothing in the decision of the Supreme Court to support a charge which does not specify any of the ingredients of the offence of criminal trespass, as in the present case, and consequently the principle laid down by the Supreme Court cannot be applied to this case, I cannot accept this contention -; for it appears that what our Supreme Court pointed out is that if from the facts and circum--stances of a case, an inference regarding the intent as specified in section 441 of the Pakistan Penal Code can be drawn, then conviction for the offence of criminal trespass can be sustained. Hence although the charge, in this case, was not happily worded it, by itself, does not vitiate the conviction of the petitioners. In view of the decision of our Supreme Court in the case of Jane Alum v: The State, the decision of this Court in the case of Abdul Gafur and others v. The State is of no assistance to the petitioners, It seems, however, that the decision of the Supreme Court was not placed before the Hon'ble Judge of this Court who decided the case of Abdul Gafur and others v. The State.
6. Mr. Abdul Wahab next contended that in this case the petitioners had a bona fide claim of right in the disputed but by virtue of exchange of their own properties in India with thosr of the complainant and his co-sharers in Pakistan. Both the Courts below found no basis for the contention that the complainant had exchanged the disputed but with some of the petitioners. This being a question of fact I cannot enter into it at this stage.1y It may be stated that the petitioners could not produce any docu--ment in support of their case of exchange with the complainant. On behalf of the petitioners my attention was invited to the evidence to the effect that the accused persons had been in occupa--tion, from before the date of occurence, of the huts of Sripati and Nalini two of the co-sharers of the complainant in the homestead land in question, and it was contended that this supported the defence case regarding exchange with the complainant also. I do not think an inference as suggested on behalf of the petitioners can be drawn upon the evidences on record. It may. Be that the petitioners or some of them by exchange with other co- sharers of the complainant were in possession of their properties but there is nothing to show that the complainant also parted with possession of his property. In the circumstances I see no merit in this petition which must fail.
7. The Rule is accordingly discharged and the order of stay of realisation of fine and of the operation of the order of eviction under section 522 of the Criminal Procedure Code, is vacated.