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Criminal Revision Application No. 350 of 1960, decided on 24th November 1961.

, S. 439‑Revision against acquittal by private party Powers of High Court‑Retrial should not invariably be ordered unless acquittal ‑based on technical grounds‑Retrial, amounting to direction to convict accused‑Not to be ordered in revision against acquittal.

Logendranath Jha v. Polai Lal A I R 1951 S C 316 and Muzafar and another v. The State P L D 1961 Lah. 561 rel.

D. Stephens v. Noisbolla A I R 1951 S C 196 ref.

Z. T. Ahmad for Petitioner.

Saleem Haqqani and A. Kadir Sh. Assistant A: G. for Opponents.

Dates of hearing : 20th and 21st November 1961.

This is a revision application filed by Mrs. Ann Coleman against the judgment of the Additional Sessions Judge, Karachi acquitting Arif Ali Luqmani. Arif Ali Luqmani and Sikandar Ali were prosecuted on a direct complaint filed by Mrs. Ann Coleman in the Court of the Additional City Magis trate. The Additional City Magistrate tried the accused and convicted them under sections 453 and 380, P. P. C. and sentenced each of them to a fine of Rs. 1,000 and Rs. 500 and imprisonment till rising of the Court under both counts and directed them to suffer rigorous imprisonment for three months and two months in the event of default of payment of fine. Arif A. Lukmani had filed an appeal before the Sessions Court which was heard and disposed of by the Additional Sessions Judge. The Additional Sessions Judge by his judgment dated 7th July 1960, acquitted Arif A. Lukmani. Sikandar Ali had not filed an appeal. This revision application has consequently been brought in this Court against the order of acquittal.

2. The facts giving rise to this application are that Arif Ali Lukmani and Mrs. Ann Coleman had entered into a partnership as far back as 1946 to run a hotel under the name of Deluxe Hotel. The partnership was dissolved in the year 1955. Mrs. Ann Coleman during the subsistence of this partnership was occupy ing a room in the hotel for her residence. She had also taken up a non‑residential room on the first floor of the hotel in which she was running a hair dressing saloon. On account of the strained relations between Mrs. Ann Coleman and Arif A. Luqmani, Arif A. Luqmani closed the passage through which Mrs. Ann Coleman used to go to her saloon in order to prevent her access to the saloon. He had also given her notices to vacate the premises on, account of the non‑payment of the rent. He had also filed an application under the Control of Hotels Act which was dismiss ed. A case against Arif A. Luqmani had also been filed by Mrs. Ann Coleman but the same was also dismissed. Both the parties were proceeded against under section 107, Cr. P. C. also.

3. The allegation of Mrs. Ann Coleman in the complaint was that Arif A. Luqmani had broken open the lock of the saloon and removed all the articles belonging to her lying in the hotel. Mrs. Ann Coleman, before she filed a direct complaint, had taken the matter to the police, but the same had been dropped as it was said that evidence establishing the offences had not been brought before the police. On the direct complaint, process under section 354 P. P. C. had been issued. Charge against Arif A. Luqmani and Sikander Ali was framed under sections 454 and 380, P. P. C. They were ultimately convicted under sections 453 and 380, P. P. C. and sentenced as stated above.

4. The case of the respondent in the lower Court was that he was in possession of the duplicate key of the saloon and that he had opened up the saloon with a view to have the vacant possession of the room. His case also was that he had prepared an inventory of the goods removed from the saloon which he had kept with himself in safe custody.

5. The learned Additional Sessions Judge, while disposing of the appeal, formulated the following points for decision

(1) Whether the act of taking possession of the room by Arif A. Luqmani amounted to criminal trespass.

(2) Whether the goods of the complainant were removed from the premises dishonestly.

6. On point No. 1, the view of the learned Additional Sessions Judge was that the complainant was occupying the room used as a saloon as a guest and was therefore a licensee. His view further was that in the event of non‑payment of rent the respondent Arif A. Luqmani was justified in law to take possession of the room. On this view of the matter, the learned Additional Sessions Judge held that an offence of criminal trespass had not been committed.

7. On point No. 2, the learned Additional Sessions Judge, held that the dishonest intention for removal of the goods could not be attributed to Arif A. Luqmani as he was entitled in law to do so with a view to have the vacant possession of the room as well as to recover the arrears of rent.

8. On both the findings given by the learned Additional Sessions Judge considerable law has been quoted and my view in the matter is that in the findings given by the learned Additional Sessions Judge do not seem to be proper. It is admitted that Mrs. Ann Coleman was put in possession of the room which she was using as a saloon. Whether she was in arrears pf rent or not or whether she was occupying the room as a licensee or not it would not confer any legal right on Arif A. Luqmani to take forcible possession of the room. As regards the dishonest intention, the law on the subject makes it very clear that possession of goods could not be taken merely to make good the recovery that was to be made from Mrs. Ann Coleman.

9. The view expressed by the learned Additional Sessions Judge therefore appears to me to be erroneous. The difficulty in the present case however is that the matter has been brought before me in the High Court by way of a revision application against acquittal of Arif A. Luqmani. The Government have not filed an appeal under section 417, Cr. P. C. I have also gone through the whole evidence in the case. A view which has not been dwelt upon by the parties in the case and which can also be considered is whether Arif A. Luqmani was in joint possession of the premises with Mrs. Ann Coleman. The statement of Arif A. Luqmani before the lower Court was that he had been entrusted with the duplicate key and that he had opened the lock with that key. The learned Additional Sessions Judge has also referred in his judgment to the evidence of Lewys Kovach, P.W.5., and stated that the possession of the saloon had been taken by Arif A. Lukmani very much before the alleged incident. The question whether Arif A. Luqmani was in joint possession, as I have already said, was not considered in the matter at all. If the evidence on this point had been considered, probably the conclusion may have been the same to which the learned Additional Sessions Judge has arrived although it is difficult at the present juncture to say as to what the conclusion of the Court on this issue would have been.

10. I am dealing with this matter in a revision against acquittal and if the acquittal has to be set aside in this revision the result will be a retrial. The view of the Courts consistently has been that the order of retrial on a revision against acquittal should invariably not be made unless it is made on technical grounds as otherwise such an order would tantamount to a direction to the lower Court to convict the accused. This view has been expressed in Logendranath Jha v. Polai Lal (A I R 1951 S G 316). Their Lordships have held as under:‑

Though subsection (1) of section 439 authorizes the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by section 423, subsection (4) of section 439 specifically excludes the power to convert a finding of acquittal into one of conviction". This does not mean that in dealing with a revision petition by private party against an, order of acquittal, the High Court can, in the absence of any error on a point of law re‑appraise the evidence and reverse the findings of facts on which the acquittal is based, provided only it stops short of finding the accused guilty and passing sentence on him.

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We are of opinion that the learned Judge in the High Court exceeded his powers of revision in dealing with the case in the manner he did, and we set aside his order for retrial of the appellants and restore the order of acquittal passed by the Sessions Judge."

In another case D. Stephens v. Nosibolla (A I R 1951 S C 196), their Lordships have observed as under :‑

The revisional jurisdiction conferred on the High Court under section 439 is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record. An order in revision directing the retrial of a man for a third time for offences which could not be said to have been made out even prima facie, cannot be upheld.

11. The same view has been expressed by our High Court in the case of Muzafar and another v. The State (P L D 1961 Lah. 561). Mr. Justice Shabir Ahmad while dealing with this question has held as under

Where there is no appeal by the Provincial Government but only a revision by a private person, the acquittal cannot be set aside but a retrial can be ordered. The power of the High Court to order a retrial in a case in which an accused person has been acquitted is unlimited, because it is not circumscribed by any provision of the relevant law. However, when a person has been acquitted after the entire evidence against him has been considered by a Court of competent jurisdiction and after that if the High Court orders a retrial, the finding of the High Court would amount almost to one of conviction and in such cases the Court should refrain from ordering a retrial. But where the acquittal has been ordered on a technical ground, setting it aside does not amount virtually to a direction to convict which an order of retrial in a case in which the entire evidence has been considered by the trial Court does.

12. With this legal view on the subject and with the restrictions on the exercise of power by the High Court on revision against acquittal, I am of the view that the retrial in this case would mean a direction to convict the respondent. I am, there B fore, not inclined to order a retrial. I, therefore, reject the revision application.

S. Q./K. B. A. Application rejected.

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