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Criminal Revision No. 1028 of 1975, decided on 18th May 1976.

---S.439-Revision-Locus standi-Only State authorise and -competent to challenge order of discharge-Respondent accused of an offence under S. 448, P. P. C. discharged by trial Court but State not challenging such order-Complainant dying meanwhile and petitioner, a brother, seeking revision against order-Petitioner, held, had no right to challenge impugned order, in circumstances. [Revision (criminal)].

There is a well known maxim that any person may set the criminal law in motion, but there is no provision that if a criminal case fails any person can challenge the order of discharge or acquittal. Only the State is authorised and competent to challenge the order. In non-cognizable cases the proceedings are to be filed on the death of the complainant but in cognizable cases the State is authorised to pursue the matter and the status of the complainant is that of a witness only.

-- S. 448-Criminal trespass-Expressions "forcible possession" and "annoyance to any person"-Conditions precedent to con stitute offence of criminal trespass-Possession of Immovable property taken in absence of owner-A mere civil trespass --Taking possession of property without consent of person in possession in a peaceful manner, held, does not amount to criminal trespass.-[Criminal trespass].

S. 378-Theft-Respondent taking possession of disputed house claiming to be owner under gift deed but neither removing nor tampering with household effects lying therein-No evidence to show that respondent ever refused to deliver such movable property to owner on demand-Respondent, held, had no intention to deprive owner of property and hence no case of theft made out, in circumstances.

-- S. 439-Revision-Contention that one of prosecution witnesses, not having been given up by prosecution, trial Magistrate could not discharge accused without summoning and recording evidence of such witness-Prosecution case, however, not likely to improve even if such witness examined by trial Court-No exception, held, could be taken to discharge order, in circumstances.- [Revision (criminal)].

Syed Shameem Haider Naqvi for Petitioner.

Mian Ataur Rehman for the State.

Date of hearing c 8th April 1976.

The facts of the case giving rise to this revision are that Mst. Muhammad Bibi was an owner of house No. 22, Street No. 67, Shahdara Town, Lahore. A portion of the house was occupied by her and the remaining portion was occupied by her two tenants, namely Muhammad Hanif and Babu. She fell ill in July, 1972 and as she had no relatives to look after her she shifted to the house of her brother at Sanda Shamas Din, after locking the portion of the house occupied by her. In her absence the respondent is alleged to have taken possession of the said portion along with the household effects lying in it. She made an application to the S. S. P. whereupon a case under sec tion 448, P. P. C., was registered. In the pendency of the case she died. Some witnesses were examined. The respondent took up the plea that in 1946, the house had been gifted to him by Mst. Muhammad Bibi and that he was in possession of it since then. Kamal Din respondent brought a suit against her claiming to be the owner of the house on the basis of the gift deed. The said suit is still pending. However, a stay order has been issued in favour of the respondent in the said case. Mst. Muhammad Bibi is alleged to have executed a will in favour of her daughter Mst. Ghulam Fatima in respect of the whole house. The photostat copy of the said will was pro duced which was exhibited as P. G. The Magistrate discharged the respon dent on the ground that the tenants, namely Muhammad Hanif and Babu were neither cited nor examined as witnesses. He also observed that since a civil suit was pending only the said Court could give final opinion whether the gift deed or the will deed were genuine and effective documents. He coming to the conclusion that the prosecution had failed to prove that the accused had forcibly taken the possession of the disputed house dismissed the complaint.

Since Mst. Muhammad Bibi died is the pendency of the criminal case, her brother Badar Din brought the revision petition. Besides the other questions, this question is also for consideration whether Badar Din acquired or inherited any right from her sister to prosecute the respondent. Since the offences complained of were cognizable and non-compoundable, the State pursued the case after the death of Mat. Muhammad Bibi, but after the res pondent was discharged the State did not challenge the order meaning that it was no longer interested in the matter and had accepted the order of dis charge. Learned counsel for the petitioner has not been able to show any law that Badar Din was competent to challenge the order of discharge. There is a well-known maxim that any person may set the criminal law in1 motion, but there is no provision that if a criminal case fails any person can challenge the order of discharge or acquittal. Only the State is authorised and competent to challenge the order but as has been mentioned above the revision was brought not by the State but by the Badar Din. In non cognizable cases the proceedings are to be filed on the death of the comp lainant but in cognizable cases the Sate is authorised to pursue the matter and the status of the complainant is that of only a witness. If Mst. Muhammad Bibi had brought the revision and had died in its pendency, of course the State would have been issued a notice to pursue the revision if it liked. Since the revision was not brought by the State the only inference is that it is no longer interested in the case.

So far as the offence punishable under section 448, P. P. C. is concerned, it is necessary that either forcible possession should have been obtained or the intention should be to cause annoyance to any person. In the present case admittedly the respondent is alleged to have taken possession in the absence of Mst. Muhammad Bibi and her tenants. So even if it be believed that the respondent took possession without the permission of Mst. Muhammad Bibi it would amount to a civil trespass but not a crimi nal trespass. It could not be said that the intention was to annoy Mst. Muhammad Bibi, because at the time the trespass is alleged to have been made, she was not present and not living in the house. Taking of peace possession of immovable property without the consent of the person in possession does not amount to a criminal trespass.

So far as the commission of offence under section 379, P. P. C. is con cerned, it may be said firstly that the respondent was not challaned under the said section and was challaned under section 448, P. P. C. only, and secondly it depends upon the intention of the respondent. If he had the intention to deprive Mst. Muhammad Bibi of her luggage lying in the rooms and with that intention he had taken the possession of it, of course it can be said that he had committed the offence punishable under section 379, P.P.C. or under section 380, P. P. C. The evidence is that the luggage is still lying in those rooms meaning that it has not been removed or touched by the respondent. The dispute between Mst. Muhammad Bibi and respondent was about the house and not the luggage lying in it. The respondent is claiming to be the owner under gift, which Mst. Muhammad Bibi was denying. It is thus clear that the intention of the respondent was, if at all the evidence led in the case is believed, to take possession of the house and since the house hold effects were lying in the house, they were allowed to remain there. If the respondent had thrown away the luggage, damage would have caused to them and he would have been guilty either under section 426, P. P. C. or 427, P. P. C. There Is no evidence that on demand of Mst. Muhammad Bibi or her daughter the respondent refused to deliver the luggage.

Learned counsel for the petitioner has argued that one witness, namely Fateh Muhammad was not given up by the Prosecuting Sub-Inspector and the learned Magistrate without summoning and recording his statement should not have discharged the respondent. If Fateh Muhammad had been examined he would give the same kind of evidence, which was already on the record. No witness examined by the prosecution was got declared hostile nor it was the case of the prosecution that any of them had been won over. Since the prosecution accepted the existing evidence the case would not have any further improved or advanced by the statement of Fateh Muhammad.

As a result of the observation made above I do not find any force in the revision and dismiss it on merits as well as on the ground that Badar Din had no right and was not competent to bring it.

Petition dismissed.

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