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Criminal Revision Application No. 144 of 1966, decided on 30th October 1967.

, S. 33-Evidence of witness examined In previous case-No evidence on record to establish that such witness was not traceable-Evidence of witness in previous case cannot, in circumstances, be brought on record of subsequent case.

Allah Dina v. The State P L D 1958 S C 290 and Chutto v. The State P L D 1958 Kar. 18 ref.

S. 439-Evidence in case found to have been believed by trial Court for cogent reasons given in judgment-Finding on questions of fact, not interfered with in Revision.

S. 522-Restoration oj possession of property----Evidence brought on record un-contro verted and leaving no room for doubt that force was used-Order passed under S. 522, held, valid.

Kader Mia v. Kader Ali P L D 1964 Dacca 150; Abdul Ghani v. Crown P L D 1950 Lah. 154 and Mahmood v. Akhtar Ali P L D 1951 Dacca 59 rel.

M. H. Junejo for Applicants.

Asif A. Zahidi for Respondents Nos. 1 and 2.

Manzoor Hussain for the State.

Dates of bearing : 23rd and 24th October 1967.

Twenty-seven applicants have filed this revision application against his judgment of Mr. Birjis Qadar, Additional City Magistrate, Karachi, dated the 27th of August 1966, under which he convicted the applicants under sections 147 and 447, P. P. C. and sentenced them each to pay fine of Rs. 10 under each count. He also ordered that they would suffer simple imprison ment for a week and three days respectively in default of payment of fine. The learned Magistrate also directed possession to be given over to Hussain Bhai Karimji, the complainant, under section 522, Cr. P. C. It arises out of the following facts.

2. The plot in dispute which is surrounded by a compound wall with a door in it admittedly belongs to Hussain Bhai Karimji. It was occupied by the applicants. The complainant filed a suit for ejectment in the year 1952 and prayed for Ismail Agarria and all persons claiming through him to be ejected and vacant possession of the premises to be given to him. This suit was decreed in the year 1960. Appeals filed against this judgment and decree were dismissed. The complainant then applied for execution of the decree pursuant to which he got the possession of the plot on 21st of March 1960, in the presence of the bailiff, the police and Mr. Muhammad Yousaf Khan, A. C. M. Karachi. The applicants are then said to have filed a suit for injunction on the 28th of March 1960 and obtained an order for interim injunc tion. They then occupied the plot forcibly on this date. The order of interim stay was then vacated. The suit filed by them was also dismissed. The appeals filed against this judgment were also dismissed.

3. The complainant thereafter filed a complaint on the 8th of May 1963 under section 147/447, P. P. C. The applicants were discharged by Mr. M. M. Jaffari, Additional City Magis trate, Karachi. A revision application was then filed on which further inquiry under section 436, Cr. P. C. was ordered by Mr. Mehdi Ali Siddiqi, the then Additional Sessions Judge, Karachi, The evidence thereafter was recorded and charge was framed. The applicants were then convicted. Since the sentence passed on the applicants was only fine of Rs. 10 on each count a revision application has been brought before this Court directly.

4. The applicants, when questioned, denied the allegations and stated that they were the regular tenants.

5. The learned counsel for the applicants has contended that the judgment of the learned Additional City Magistrate cannot be sustained firstly because he has relied upon the evidence of Sikandar, a Chowkidar of the complainant, who was not examined before him. According to him, this Chowkidar was examined in a suit filed by the applicants before the Court and also by the Additional City Magistrate Mr. M. M. Jaffari, but was not examined by the Additional City Magistrate who convicted the applicants. According to him, there is no evidence on record to establish that Sikandar was not traceable so that his evidence could be brought on record under section 33 of the Evidence Aci. He has placed reliance upon Allah Ditta v. The State (P L D 1958 S C 290) and Chutto v. The State (P L D 1958 Kar. 18). 1 agree with him and rule out of consideration the evidence of Sirandar which although it has not been specifically discussed by the learned Magistrate, as eet referred to at some places in his judgment. The learned counsel for the State also concedes the legal proposition. The question then will as to whether there is still evidence on record to bring home to the applicants the offences with which they have been charged. The evidence of Karimji clearly shows that he had seen Sikandar being beaten and thrown out of the premises on the 28th of March 1960 when the applicants were occupying the premises forcibly after they had been ejected by a Civil Court. The evidence of Karimji supported by the evidence of the complainant and other witnesses leaves no room for doubt that the applicants had committed trespass and were guilty of the offences with which they had been charged. This evidence has been believed by the learned Additional City Magistrate for cogent reasons given by him in the judgment. I therefore see no reason to upset the finding on the questions of fact in this revision application filed by the applicants.

6. The second question raised by the learned counsel for the applicants was that some of the applicants were not a party to the suit and therefore the decision in the suit could not be made applicable to them. The argument, in my opinion, is of no con sequence because it is an admitted position that all the persons residing in that plot were removed on the 21st of March 1960 by the Civil Court. A lot of evidence on this fact has been brought on record and the evidence so brought is absolutely unassailable. Whosoever, after having been ejected from the plot, occupied it by force would be guilty of offences with which he has beets charged.

7. The trial point raised by the learned counsel for the applicant is that there was no force used by the applicants and as such an offence under section 447, P. P. C. would not be made out. His contention also is that in the event of no force having been used, an order under section 522, Cr. P. C., could not be passed. I have already referred to the evidence of Karimji P. W. 3 who has clearly stated that force bad been used and he had bimself seen the applicants beating Sikander and .throwing him out of the premises. The argument, therefore, advanced by the learned counsel is of no consequence. He had raised these arguments by reference to some of the passages in the evidence of Sikandar recorded in the Civil Court and before the Additional City Magistrate, Mr. M. M. Jaffari. In my opinion, the learned counsel for the applicants cannot in law refer to the evidence of Sikandar as he himself bad raised an argument that his evidence had been illegally brought on record and could not be looked at. In the event of a conclusion having already been reached that the evidence of Sikandar brought on record under section 33 of the Evidence Act was inadmissible, no reference can be made to his evidence. In these circumstances, the evidence brought on record is un-controverted and leaves no room for doubt that force was used.

8. On this view of the matter, I see no ground for setting aside the order passed even under section 522, Cr. P. C. The fact that an order can be passed under section 522, Cr. P. C. in the circumstances in which it was passed in this case receives support from the cases of Kader Mia v. Kader Ali (P L D 1964 Dacca 150), Abdul Ghani v. Crown (P L D 1951 Dacca 59) and Mahmood v. Akhtar Ali (P L D 1951 Dacca 59).

9. In view of what I have said above, I see no merit in this revision application and hence dismiss it.

Petition dismissed.

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