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Petition for Special Leave to Appeal No. 2 of 1984, decided on 30th April, 1984.

‑‑‑Ss. 417 & 202‑‑Penal Code (XLV of 1860), Ss. 447 & 448‑‑Report under S. 202, Cr.P.C.‑‑Finding arrived at by Trial Court fully supported by evidence on record and no irregularity or illegality appearing in impugned order‑‑Petitioner, cannot take advantage of report of Tehsildar submitted under S. 202, Cr.P.C. but is to succeed only on basis of evidence recorded before Trial Court.

Fayyaz Ahmad Shaheen for Petitioner.

This petition under section 417, Cr. P.C. for the grant of leave to appeal is directed against the order, dated 24‑4‑1983 passed by Choudhry Manzoor Hussain, Assistant Commissioner Rajanpur whereby he acquitted the respondents from a case under section 447/448, P.P.C.

2. Briefly stated the facts are that the petitioner claiming himself to be the owner in possession of agricultural land and a residential house situate in Shahar Nindo Khan, Tehsil and District Rajanpur filed a complaint in the Court of learned Assistant Commissioner/ Magistrate 1st Class, Rajanpur against the respondents alleging that he had gone to Rajanpur in connection with some private affair, the respondents taking advantage of his absence unlawfully trespassed upon his agricultural land and residential house and committing criminal trespass took unlawful possession of the same. The learned Assistant Commissioner sent the complaint to Tehsildar/Magistrate Second Class, Rajanpur under section 202, Cr.P.C. for inquiry. The Tehsildar reported that the complaint was based on correct allegations and that the respondents had forcibly occupied the petitioner's agricultural land and residential house. On receipt of the said report the learned Assistant Commissioner summoned the respondents, recorded the evidence of the parties and eventually dismissed the complaint and acquitted the respondents on 24‑4‑1983. Aggrieved by said order, the petitioner applied to the District Magistrate, Rajanpur by filing appeal against the acquittal of the respondents but the same was dismissed. Hence, the present petition.

3. It is contended that the learned Assistant Commissioner has failed to apply his mind to the evidence on record, that the report, dated 20‑6‑1981 of the Tehsildar was not given due weight and that the evidence led has been misread.

4. According to the learned trial Magistrate Boda and Wazir Hussain P.Ws. did not support the complainant and admitted that there existed enmity between the parties and further that Elahi Bakhsh P.W. expressed ignorance about the possession of the house in question. The learned trial Court further observed that the D.Ws. examined by the respondents stated that the respondents were in occupation of the house in question since 30/40 years. For the said reasons, the learned Assistant Commissioner acquitted the respondents.

5. I have heard the learned counsel for the petitioner and perused the record. Boda (P.W.1) and Wazir Hussain (P.W. 2) did not say anything about the illegal occupation of the house and the land belonging to the petitioner. The third witness in the case was the petitioner himself. He admitted in the cross‑examination that his son was challaned under section 307, P.P.C. in which Aman Ullah respondent had appeared as a prosecution witness. He further admitted that his son Daulat Khan had got a case registered under section 307, P.P.C. against Sultan Mahmood respondent and his sons. He further admitted that he did not report the present incident to the police. Sardar Elahi Bakhsh expressed ignorance about the possession of the house in dispute and stated that he had asked the party to effect a compromise. Behram Khan D.W. 1 stated that the respondents were in occupation of the house in dispute since 30/40 years and that they have not raised any new construction.

6. In view of the above circumstances, the learned trial Magistrate was fully justified to hold that the petitioner had failed to prove his case against the respondents. The petitioner cannot take advantage of the report of the Tehsildar which was in his favour. He was to succeed on the basis of the evidence recorded before the trial Court in the presence of the respondents with opportunity to cross‑examine the witnesses produced by the petitioner. Since the prosecution witnesses failed to show that within their view and presence the respondents had trespassed into the land and residential house of the petitioner the trial Court rightly dismissed the complaint and acquitted the respondents. Learned counsel for the petitioner has failed to satisfy me that the trial Court has flouted any principles for appreciation of evidence or has failed to consider any material going against the respondents. The, finding arrived at by the learned Assistant Commissioner are fully supported by the evidence on record and no irregularity or illegality appears in the impugned order. The acquittal of the respondents proceeds on sound grounds and I see no reason to interfere with the order of the learned Assistant Commissioner in this behalf.

For the reasons enumerated above, the petition fails and is dismissed in limine.

S . G . D . / G‑2 / L Petition dismissed.

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