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Petition for revision No. 135 of 1954, decided on 8th October, 1954, against the order of K. Faizullah Khan B.Sc., LL.B., Sessions Judge, Hazara, at Abbottabad, dated 20th May, 1954, whereby the appeal of the petitioner was dismissed and the convictions and sentences passed against the petitioner under sections 403 and 447 P. P. C. awarded by Khan Rashidudin Khan A. D. M. and M. I. C. at Darband, were upheld.
S. 441‑Contemplates person in. actual not constructive possession.
Ss. 403 and 424‑Distinct offences‑Conviction under S. 403 cannot be altered to one under S. 424.
Muhammad Safdar Khan, for Petitioner.
Abdul Latif Khan assisted by Pir. Muhammad Zaman Shah for the Complainant, and Syed Ghazanfar Ali Shah Public Prosecutor, for the State.
‑On 8th October, 1952, Ghulam Sarwar Khan, an agent of the Nawab of Am b, made a complaint, against Muhammad Ghulam and nine others under sections 448/447/403 P. P. C: alleging that the accused had trespassed on the agricultural land and the houses belonging to the Nawab and had also misappropriated the produce, which was the right of the Nawab.
The learned trial Magistrate acquitted all the accused except Muhammad Ghulam, who was convicted under sections 447 and 403 P. P. C. and sentenced to pay a fine of Rs. 55 on the first count, and Rs. 100 on the second. In default or payment of the first fine he ordered him to undergo rigorous imprisonment for three weeks, and in that of the second to six months' rigorous imprisonment.
An appeal by the convict anti a revision petition for enhancement of the sentence, against the above order, were dismissed by the Sessions Judge, Hazara, on 20th May, 1954.
Muhammad Ghulam has come up in revision to this Court.
The facts of the case as brought on the record by the prosecution evidence are that Muhammad Ghulam accused has been cultivating the Nawab's land and living in the houses situated on this land since a very long time. Whatever his position previously was is immaterial for the decision of this case, but on 4th May, 1951, he executed an agreement, by which he undertook to cultivate the land of the Nawab and utilise himself 1/3rd of its produce, and give over the remainder to the Nawab. The seed and the plough were to belong to the Nawab, but it was the duty of Muhammad Ghulam to reap the harvest and collect it. Muhammad Ghulam gave the produce of kharif 1951 to the Nawab. He, however, failed to give the produce of kharif 1952, ‑whereupon it is alleged by the prosecution that he was asked to quit the land which he refused to do. Since he remained in possession of the land in spite of being asked to quit it, therefore he was alleged to have committed an offence within the meaning of section 441 P. P. C. It was further stated that as he had failed to give his share of the produce to the Nawab, he was guilty under section 403 P. P. C.
In the complaint as well as in the evidence it was stated that Muhammad Ghulam was only a hali of the Nawab. The term hali has a peculiar meaning. He is a farm‑servant of the proprietor of the land; and has ordinarily no share in the land or the plough cattle. His ordinary duties are to tend the cattle, bring, the fodder for the cattle, and carry the grain to the village mill to be ground. His wages differ in the different villages, but normally they are 1/5th of the grain pro duced. The institution as a matter of fact came into existence when some people living in the village, who were otherwise agriculturists, were advanced some money by some proprietors of the village, which money they were unable to pay,. and so they accepted the subordinate position of a half under the proprietors on the conditions mentioned above. A hali remains in. the service of the proprietor until the whole debt is paid off. It; however, so happened that this man was never able to pay the. debt, which time and again swelled on account of the fresh advance ments.
The sole question which, therefore, has to be determined in this case is, whether Muhammad Ghulam was a tenant of the Nawab's land or a hall.
According to the agreement which has been produced by the complainant himself; Muhammad Ghulam although it was not he who was to provide the plough‑cattle yet he was entitled to 1/3rd of the produce, and it was he who had to reap the whole of the produce and collect it. It is clear that his position was not that of a hali but of a tenant. In order to bring Muhammad Ghulam within the definition of a hali, the agent of the Nawab stated in evidence in Court that the share of Muhammad Ghulam was reduced from 1/3rd to 1/4th. Whatever the share of Muhammad Ghulam may be, the fact remains that he was to cultivate the land, sow the seed, reap the produce, himself utilize a portion of it, and give the rest to the landlord. If a man holds the land under these conditions; he would certainly not be a half.
Now, section 441 P. P. C. runs as under :‑
"Whoever enters into or upon property in the possession of another with intent to commit an offence, or, to intimidate, insult or annoy any person in possession of, such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person; or with intent to commit an offence, is said to commit criminal trespass."
The definition reproduced above makes it absolutely, clear that the criminal trespass whether it is by entering into or upon any property, or by remaining in possession thereof, must be of the property the actual possession of which is with a particular person, whose intimidation, insult or annoyance is meant by the person entering into or upon such property, or having lawfully entered into or upon property, remains in possession thereof. Section 441 P. P. C. does not contemplate a constructive possession. The reason is quite obvious, that a person who is not in actual pos session of any property cannot possibly be intimidated, annoyed or insulted by the entry of somebody else into that property. The case of Muhammad Ghulam, however, stands on a much stronger footing. He has been in continuous physical possession of this land since a very long time. The Nawab's possession on this land was at the utmost through Muhammad Ghulam. It would be the travesty of judgment to say that Muhammad Ghulam by remaining in possession of this property, although asked by the Nawab to get out of it, committed criminal trespass in order to intimidate, annoy or insult his own self.
I am consequently of the opinion that Muhammad Ghulam committed no offence, if he remained in possession of the property, and his conviction under section 447 P. P. C. is therefore bad in law.
So far as the conviction of the petitioner under section 403 P. P. C. is concerned, the learned counsel, appearing for the State, conceded and very rightly, that the, mere fact that Muhammad Ghulam, who is a tenant of the land has riot given the produce to the landlord, does not amount to an offence of criminal misappropriation of money, because tie cannot be said to have dishonestly misappropriated or converted to his own use any movable property. He, however, contends that the act of the accused amounted to an offence under section 424 P. P. C., because he had dishonestly and fraudulently removed the produce of the land, without giving the due share to the Nawab.
The offence under section 424 P. P. C. is a distinct one, for which the same punishment is provided as for an offence under section 403 P. P. C. in my view the conviction of the accused cannot be altered from that under section 403 P. P. C. to one under section 424 P. P. C. If the prosecu tion wanted him to be convicted under this section, they should have specially charged him under that section, and given him an opportunity to answer that charge.
The result is that on the admission of the learned Public Prosecutor himself, the accused‑petitioner is not guilty of any offence. The revision petition consequently is accepted, the conviction of the accused on both the counts is set aside, and he is acquitted of the charges. The fine, if paid, shall be refunded to him
Orders announced.
A. H.
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