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Criminal Revision No. 100 of 1967, decided on 13th May, 1984.

-- S. 342-Defence of accused held, could be found not only from his statement under S. 342, Cr. P. C. but also from nature and trend of cross-examination and from his defence evidence.

-- S. 447-Criminal trespass-Accused right from beginning plead ing before police and trial Court that he bad built wall on demarca tion made by Patwari-Accused, producing rapat roznamcha wagiati reciting proceedings of demarcation, given to him - Girdaivar who was present alongwith Patwari at tune of demarcation appearing as defence witness and proving demarcation proceedings - Factum of demarcation having been made and accused having built wall, on its basis proved-Demarcation, if defective, may make same as irregular or even illegal, but not sufficient to hold accused criminally liable, who acted upon same-Trial Court was absolutely correct in holding that though demarcation was wrongly made and there was a trespass by accused, but he could not be held criminally liable for trespass-No mens rea was involved and action of accused actuated by a bona fide desire to have his claim satisfied.

-- S. 447-Criminal Procedure Code (V of 1898), S. 522-Accused acquitted of charge under S. 447, P. P. C--No criminal force shown in construction of wall and consequent trespass on some land -Direction to accused for demolition of wall, held, without jurisdic tion, in circumstances.

Irshad Ahmad for the State.

Jariullah Khan for Respondent.

Dates of hearing: 29th April and 13th May. 1984.

This judgment would dispose of two cases, namely Criminal Revision No. 100 of 1967, registered as such on a reference dated 19th February, 1966 by Additional Sessions Judge, Lyallpur against acquittal of respon dent Zafar Ahmad by Magistrate 1st Class, Toba Tek Singh of offence under section 447, P. P. C. and Criminal Revision No. 248 of 1967 filed by Zafar Ahmad against order dated 19th February, 1966 of Additional Sessions Judge, Lyallpur dismissing his revision against direction made by the learned Magistrate while acquitting him that he should demolish the wall built by him forthwith and if at all a wall is necessary it should be constructed at the extreme corner of the buildings in possession of Ch. Nazir Ahmad complainant.

2. The facts of the case are that Ch. Nazir Ahmad, a retired Superintendent of Police lodged on 12th January, 1965 a written complaint at Police Station Gojra that there had been a private partition of agricultural land and ihata between him and his deceased brother Fazal Ahmad in 1935 and in 1962, Zafar Ahmad son of Fazal Ahmad demolished the wall which constituted the boundry between the partitioned ihata and had laid foundation to build a Pucca wall after trespassing into his portion of the ihata and had demolished a part of a kotha as well but on his written complaint/request to the police to interfere and restrain Zafar Ahmad from doing so, Zafar Ahmad had demolished the Pucca founda tion of the wall in his portion of the plot but again now after two and a quarter of a year, be had on 9th January, 1965, constructed a Pucca wall in his absence from the village and that he had criminally trespassed into a part of his portion of the ihata and that a case be registered against him under section 447, P. P. C. Accordingly F. I. R. No. 34 was registered in Police Station Gojra and on the basis of result of their investigation police challaned Zafar Ahmad for having got from officials of revenue department ex parte demarcation of the boundries during his absence and for having criminally trespassed into a part of the ihata of Ch. Nazir Ahmad and for having included in his father's portion of the ihata an area measuring 3'-6", towards the north and 4'-2" towards the south with 13 Karams of width. ,

3. In the trial, Ch. Nazir Ahritad, complainant appeared as P. W. 1 and supported the story told by him before police in all material details. He also stated in his statement that in 1962 War Ahmad, had demolished a portion of one of his kothas as well but had rebuilt it on pursuasion of the police. In cross-examination he stated that partition of the ihata between him and his brother in 1937-38 was not made officially through revenue department but was a private partition made by his brother Fazal Ahmad in his absence from the village on duty which he had accepted. He also stated that immediately after said partition a wall to serve as a boundary between the two portions, had been built by his brother during his absence which, however had been seen by him many times when he visited the village. He also stated that partition of land and ihata had taken place at one and same time. He, however, stated that he had no intimation of the factum of Patwari and Qanungo having gone to the spot. Muhammad Sharif, Secretary, Union Council appeared as P. W. 2 who resided in this ihata deposed that there was a Katcha wall separating ihata of Ch. Nazir Ahmad which Zafar Ahmad had demolished and built allegedly Pucca wall after including some area from ihata of Ch. Nazir Ahmad. He also denied that in his presence a Patwari and Qanungo had come to the spot. Shah Muhammad appeared as P. W. 3 and Allah Rakha appeared as P. W. 4 and gave similar statements. Malik Nazar Sadiq A. S.-I. Investigating Officer, appeared as P. W. 5 and amongst other things proved the plan of spot showing the area trespassed as Exh. P. B. In cross-examination he admitted that Patwari had produced before him a copy of roznameha waqiati which he had considered to be unnecessary and had not placed it on the record of the challan file.

4. In defence Shah Muhammad Girdawar appeared as P. W. 1 'and deposed that on 8th January, 1965 on the orders of the Tehsildar made on an application by Fazal Ahmad for demarcation, he alongwith Patwari had come to the spot and at that time there was no Katcha wall and he and Patwari had demarcated the line of partition and had made marks on the land of the Mara. He further stated that the other party, namely Ch. Nazir Ahmad was not present but he had directed the three lambardars present at the spot to show the said marks to Ch. Nazir Ahmad when he comes to the village and tell him that if he had any objection, a fresh demarcation could be effected. He also disclosed that proceedings of demarcation recorded on 8th January, 1965 were entered in roznamcha waqiati as Rapat No. 190, dated 14th January, 1965. He proved its copy as Exh. D. A. The original roznamcha was also summoned and it was found that his signature on the said Rapat was not there but he explained that Patwari had been indolent and had not got his signatures thereon. However, the fact that demarcation had in actual fact taken place on 8th January, 1965 and a P1cca wall had been built on the spot in accordance with the said demarcation was further proved by D. W. 2 Mahmood Ahmad, a member Union Council, as well as lambardar of the village and a step-brother of Zafar Ahmad and a real nephew of the com plainant and D. W. 3 Hakam Ali, another lambardar. They also deposed there was no wall earlier separating the iftata of Ch. Nazir Ahmad. D. W. 4 Lai Din and D. W. 5 Dhoonda appeared to depose that in spite of partition effected earlier, there was no intervening wall to demarcate the portions.

5. The learned Magistrate who tried Zafar Ahmad and had also inspected the spot by his judgment dated 27th July, 1965 held that trespass into a portion of the ihata of Nazir Ahmad had been established but demarcation had been made by officials of revenue department and War Ahmad had entered into possession of trespassed portion of land on the basis of the said demarcation and though the said demarcation was wrong, Zafar Ahmad could not be held accountable criminally for this trespass as there was no mens rea involved in the whole thing and action of the accused was actuated by a bona fide desire to have his claim fulfilled. He, therefore, acquitted him of the charge under section 447, P. P. C. However, seeing that a trespass had been committed he directed Zafar Ahmad to demolish forthwith the existing wall. He further observed that if at all a wall is necessary it should be constructed at the extreme corner of the buildings in possession of Ch. Nazir Ahmad complainant.

6. The complainant Ch. Nazir Ahmad filed a revision before Sessions Court under section 438, Cr. P. C. against the acquittal of Zafar Ahmad while Zafar Ahmad filed revision against direction of the Magistrate for demolition of the wall. Mr. Jamal-ud-Din Khattak, Additional Sessions Judge, Lyalipur by his order dated 19th February, 1966 accepted the revision of Ch. Nazir Ahmad and reported the case in respect of acquittal of Zafar Ahmad to High Court on the ground that the Magistrate could not have acquitted War Ahmad after holding that he had committed the trespass anti recommended that he should be convicted and punished accordingly. He, however, dismissed the revision of Zafar Ahmad without giving any reason. The reference to the High Court was registered in the High Court as Criminal Revision No. 100 of 1967. In the meantime, Zafar Ahmad also filed a Criminal Revision No. 248 of 1967 under section 439, Cr. P. C. against the order dated 19th February, 1966 of Additional Sessions Judge dismissing his revision against order of the Magistrate directing him to demolish the said wall forthwith.

. . 7. 'I the two cases have come up before me for adjudication.

8. I have heard Mr. Jariullah Khan in the said two cases and have also heard the State counsel. I have also gone through the entire record of the case.

It as settled principle of criminal law that defence of an accused person can be found not only from his statement under section 342 Cr. P. C. but also from the nature and trend of cross-examination by his counsel and also from, his defence evidence. The factum of Patwari and Qanungo having gone to the spot (obviously for the purpose of demarca tion) was put to the very first witness who was complainant (Ch. Nazir Ahmad) himself, The same question was put to P. W. 2 Muhammad Sharif and P. W. 3 Shah Muhammad. 1t is thus clear that plea of Zafar Ahraad right from the beginning was that he had built a wall on the demarcation made by Patwari and therefore, he was not criminally liable either on account of the fact that there was no trespass or if there was one, it was net a criminal one. Furthermore, P. W. 5 Nazar Sadiq A. S. I., Qojra bad admitted that Patwari who had been joined in investigation has produced Roznamcba Waqiati which he bad considered unnecessary and had not put on the record. That shows that plea of War Ahmad, even before police during investigation also was that he had built the disputed wall on the basis of demarcation of the Patwari. Thereafter, rapat rozinamcha waqiati dated 14th January, 1965 reciting proceedings of demarcation given to Zafar Ahmad was produced in evidence and Sba7, Muhammad Girdawar who was present alongwith Patwari at the time of demarcation as D. W. 1 proved the same. It is true that the original rapat in the rozinamcha showed that signature of Qanungo was missing but D. W. I explained that it was due to default of Patwari who had failed to get his signatures on the rapat. In any way, the factum of Patwari and Girdawar having given the said nishan dahi was proved by D. W. 2 Mahmood Ahmad Mirza, Lambardar of the village who was equally related to both the parties and Hakam Ali another lambardar of the same Chak. ' It is notable that the former had appended his signature and the latter his thumb-impression to the proceedings of demarcation Further the' Investigating Officer had himself, stated in his report under section 173, Cr. P. C. that Zafar Ahmad had got demarcation performed by revenue officials during the absence of Ch. Nazir Ahmad. The fact'u.. of demarcation having been made and Zafar Ahmad having built the wall on its basis thus stood proved on the record to the hilt and had to be C believed especially when Ch. Nazir Ahmad P. W. 1 had only denied and knowledge of the Patwari etc. having come to the village for demarcation and P. W. 2 Muhammad Sharif, Secretary Union Council, had denied demarcation having been made in .his presence only and P. W. 3 Shah Muhammad had felt satisfied with mere denial of the building of wall by Zafar Ahmad after demarcation and had not proceeded to say categori cally that Patwari and Girdawar bad never come to the village to make the demarcation.

10. It is true that in demarcation both the parties are served and in the present case admittedly Ch. Nazir Ahmad was not served and the defect may make the demarcation irregular or even illegal but is not n sufficient to hold Zafar Ahmad who acted upon the same criminally liable for, he cannot be expected to have known the law or procedure for making demarcation and it were the revenue officials who were expected to look after the same.

11. In my opinion, therefore, the learned Magistrate who absolutely correct in holding that though the demarcation was wrongly made and there was a trespass by Zafar Ahmad, he could not be held criminally liable for the said trespass as in entering into possession of the trespassed portion he had only acted upon the demarcation made by Girdawar and Patwari under the order of the Tehsildar and there was no mess rea involved in his doing so and the action of Zafar Ahmad was actuated by a bona fide desire to have his claim satisfied. In saying that Magistrate had erred in acquitting Zafar Ahmad in spite of holding that he had committed a trespass, the learned Additional Sessions Judge had wholly ignored the existence of a trespass without any criminal intent and in bona fide exercise of a person's claim of right to get portion of land which he thought was deficient on his side of the partitioned ihata. He failed to distinguish between a civil trespass and a criminal trespass. His recommendation for conviction and sentence of Zafar Ahmad cannot be accepted and is, therefore, turned down. 1n consequence, I reject Revision Petition No. 100/67 and maintain the order of acquittal of Zafar Ahmad respondent.

11. Now I would turn to and consider the Revision No. 248/67 filed by Zafar Ahmad against the order of Sessions Judge dismissing his revision against the order of Magistrate directing him to demolish the wall. The Additional Sessions Judge had given absolutely no reason for dismissing the said revision. Probably he was of the opinion that since he had found that Zafar Ahmad is to be convicted and punished, therefore, the order of the Magistrate directing him to demolish the wall was liable to be main tained. It has, however, been contended that there is no provision of law warranting an order of this nature on the acquittal of Zafar Ahmad. The learned counsel for the State concedes the correctness of the stand of learned counsel for Zafar Ahmad. I have scanned provisions of law in Criminal Procedure Code. The only relevant provision which authorizes the criminal Court to get the trespass vacated and have possession of the trespassed immovable property delivered to the dispossessed person is section 522, Cr. P. C. It, however, makes the exercise of the power dependent upon conviction of an accused person of an offence of criminal trespass attended by criminal force. In the present case, however, Zafar Ahmad had been acquitted. Furthermore, there was no exhibition of any criminal force in the construction of the said wall and consequent trespass on some land of Ch. Nazir Ahmad. The Magistrate had, therefore, no power to make the said direction and his order to that extent is without jurisdiction. I, therefore, accept Criminal Revision No. 248/67 and set aside that part of the judgment dated 27th July, 1965 of the learned Magis trate which directs Zafar Ahmad to demolish the said wall.

M. A. K. Order accordingly.

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