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Criminal Revision No. 776 of 1967, decided on 6th August 1968.

Ss. 439 & 522‑Revisional jurisdiction of High Court‑Restoration of possession of property to accused convicted and ejected under S. 522 after his acquittal on appeal‑High Court has jurisdiction to see correctness of such order.

The High Court has discretionary power in considering whether an accused person should be put back into possession of any property regarding which he had been convicted of an offence during which dispossession had occurred by show of force on the acquittal of the accused by the appellate Court or even by the revisional Court. It follows therefore that the High Court in its revisional jurisdiction has the jurisdiction to see whether any order pursuant to setting aside of the conviction of the accused made by the Courts below restoring possession to the accused persons was correct or not.

Abdul Ghani v. The Crown P L D 1950 Lah. 154 fol.

Ataur Rahman Khan for Petitioner.

Nemo for the Opposite‑Party.

This application under section 435/439 of the Criminal Procedure Code is by the complainant. In. a case under section 448 brought against the accused Serajuddin, Ramijuddin and Miazan, the accused were convicted under section 448 of the Pakistan Penal Code and sentenced to suffer R. I. for six months and also to pay a fine of Rs. 200 each in default to suffer R. I. for 1 months more. The learned Magistrate also, ordered under section 522 of the Criminal Procedure Code that the accused persons be ejected out of the disputed building and the plaintiff be restored to possession. This was done. The accused persons later on preferred an appeal before the Sessions Judge and the appeal was disposed of by the Additional Sessions Judge, 2nd Court, Dacca and the judgment of the learned Magistrate was set aside and the case was sent back for retrial. On 7‑3‑1966 the Sub‑Divisional Officer of Munshiganj transferred the case of Mr. M. Ahmad for disposal. One Nuruddin filed a petition for giving him possession of the building. This Nuruddin was an un-summoned accused in the case and was not convicted. The learned Sub‑Divisional Magistrate however passed the order that since judgment of the Magistrate had been vacated the building should be handed over to the defence until fresh order was passed by the learned Magistrate. The learned Sub‑Divisional Magistrate himself passed another order on the same date that as the first party (Complainant) decided to move the learned Additional Sessions Judge on the question of restoration of the building he was of the opinion that the point should be finally settled by the Additional Sessions Judge. Hence he ordered that the order passed by him earlier regarding restoration would take effect after two weeks that is 21‑3‑1966. It appears from the record of the Sessions Judge that the complainant moved the Sessions Judge on 17‑3‑1966 and obtained an order staying the order of the Sub‑Divisional Magistrate. On hearing the parties the learned Additional Sessions Judge, 2nd Court, rejected the revisional application holding that the order of the learned Sub‑Divisional Magistrate was justified and was not without jurisdiction and he refused to refer the case to the High Court. Hence this revisions application.

2. Rule was issued by this Court on 18‑12‑67 and further proceedings in the matter was stayed.

3. The point which arises in the case has been considered in a number of cases. But the leading case on the point is the case of Abdul Ghani v. The Crown (P L D 1950 Lah. 154). This case was decided by a Division Bench on a reference by a Single Bench. The facts of that case were that a property belonging to one Mahbub Elahi was broken into by the accused Abdul Ghani who broke the lock put on the building by the said Mahbub Elahi after he obtained delivery of possession in execution of a decree against the accused Abdul Ghani. The learned Magistrate convicted Abdul Ghani and also under section 522 of Criminal Procedure Code directed that possession of the house be made over to the complainant Imamdi, the father of Mahbub Elahi. This order of restoration of possession was duly carried out. Abdul Ghani and his co‑accused appealed from the order of conviction and they were acquitted by the appellate Court. After the acquittal the accused prayed for restoration of possession of the house. But the application was dismissed by the learned Sessions Judge. The accused Abdul Ghani thereafter moved the High Court for an order that the possession of the property should be restored to him on the ground of his acquittal on the charge of having taken possession of the property unlawfully. The case was argued before the Single Bench presided by Mr. Justice Cornelius as he then was. Reliance was placed on petitioner's behalf that in the circumstances existing in the case the Court sitting in revision had no alternative but to restore possession to the acquitted persons from whom it had been taken away by an order under section 522 of Criminal Procedure Code. His Lordship being of the opinion that such a view had an affect of placing a restriction on the exercise of the revisional powers, placed the case before the Chief Justice for consideration by a larger Bench. The case was then placed before a Division Bench comprising of the referring Judge and Mr. Justice Abdur Rahman. The Judgment was delivered by Mr. Justice Cornelius as he then was. After reviewing all the cases cited before him it was held by his Lordship in P L D 1950 Lah. 167 thus:

"Taking this circumstance into account along with all the other circumstances of the present case I am clearly of the opinion that there is nothing which should sway in favour of exercising any discretion under section 439, Criminal Procedure Code, so as to put the petitioner back into possession of the disputed house. I would accordingly dismiss this petition, and with regard to the two precedent cases cited above, I would observe, speaking with greatest respect, that if these cases are understood to lay down that any logical considera tions compel the Court to put back into possession of any immovable property a person who was convicted of an offence involving use or show of criminal force or criminal intimida tion in respect of such property, and who was deprived of its possession following such conviction, by an order under section 522, Criminal Procedure Code, merely by reason of such person having been acquitted of the offence then, to that extent these decisions do not, in my opinion, lay down good law."

From the above decision it is clear that the High Court has discretionary power in considering whether an accused person should be put back into possession of any property regarding which be had been convicted of an offence during which dis possession had occurred by show of force on the acquittal of the accused by the appellate Court or even by the revisional Court. It follows therefore that the High Court in its revisional jurisdiction has the jurisdiction to see whether any order pursuant to setting aside of the conviction of the accused made by the Courts below restoring possession to the accused persons was correct or not.

4. Adopting this principle I shall examine the facts of this case, the accused were convicted in the trial although the order of conviction was not supported by a proper judgment the fact of conviction remains and the fact that the complainant was directed to be put in possession of the disputed property also remains. The order of restoration of the property to the complainant was carried out. The order of conviction was set aside by the appellate Court but the accused were not acquitted. The case was sent back for retrial. In these circumstances in my opinion the order of the Sub‑Divisional Magistrate directing the property to be restored to the accused party was, to say the least, premature.

5. In these circumstances I hold that the order passed by the learned Sub‑Divisional Magistrate was illegal and I set it aside. The rule is, therefore, made absolute and the records should be sent down immediately and the case should be retried immediately by the transferee Magistrate or by any other Magistrate if the transferee Magistrate is no longer in the station.

Rule made absolute.

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