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Criminal Revision Application No. 541 of 1962 and Criminal Reference No. 275 of 1962, decided on 26th November 1962.

‑Entry upon land under bona fide claim, however ill founded in law‑Not criminal trespass.

Abdullah Shah v. The State P L D 1962 Kar. 633 ; Kazi Taj Muhammad v. The State P L D 1962 Kar. 330 ; J. S. Daver v. Iqbal Qadir P L D 1962 Pesh. 167 and Sumasamy Selvanayagam v. The King 52 Cr. L J 73 ref.

A. K. Brohi for Applicant.

A. H. Kureshy for the State.

Respondent No. 2 in person.

Date of hearing: 26th November 1962.

This judgment will dispose of Criminal Reference No. 275 of 1962 as well as Criminal Revision Application No. 541 of 1962. The criminal reference was a suo motu reference made by the Senior Judge, Inamullah, J., who while recently inspecting the Subordinate Courts including the Court of the Sub‑Judge and F. C. M. Khairpur, came across Case No. 73 of 1961, Muhammad Ahmad Khan v. Mir Ali Mardan, which had been adjourned sine die till the decision of a civil suit between the parties. The Sub -Judge and F. C. M., Khairpur had adjourned this criminal complaint upon the authority of a Dacca case reported in P L D 1962 Dacca 11. It seemed to Inamullah, J., that this point require scrutiny and hence the present reference.

2. Appearing on behalf of the State in this criminal reference Mr. Abdul Hayee Kureshy stated that the civil suit had since the filing of this reference in this High Court been dis missed so that there was now no bar to the proceeding of the criminal case. Besides Mr. Muhammad Ahmed Khan respondent No. 1 in this reference was present in Court today and upon my inquiry he admitted that the civil suit has been dismissed. In view of the dismissal of this civil suit the whole basis for this reference falls to the ground and this reference, therefore, becomes infructuous. No decision is called for and these papers of this reference may now be filed.

3. Criminal Revision Application No. 541 of 1962 is directed against the complaint filed against Mir Ali Mardan Khan TaIpur by Mr. Muhammad Ahmed Khan in the Court of the A. D. M., Khairpur and contains the prayer that this complaint may be quashed as it is an abuse of the process of the Criminal Court. Mr. A. K. Brohi appearing on behalf of the applicant has pointed out that this complaint was filed on 18‑2‑1961

in respect of an incident that occurred four months earlier on 2‑10‑1960. In respect of this very incident a civil suit had been filed by the complainant against the present applicant on 28‑1‑1961 in which the very same allegations have been made. It would, therefore, appear that the criminal complaint was filed later purely for the purpose of bringing pressure to bear upon the present applicant. Mr. Brohi pointed out that in this complaint none of the ingredients of section 441, P. P. C. have been mentioned. He also contended that the two letters filed by him along with the present revision application as Annexures C' and D' would also indicate that there was no criminal intent as postulated by section 441, P. P. C. on the part of his client. Finally Mr. Brohi mentioned that no counter affidavit has been filed by the opponent No. 2 Muhammad Ahmed Khan and that it appears there is no denial of the allegations contained in his revision application. In support of these arguments Mr. Brohi referred to the case of Abdullah Shah v. The State (P L D 1962 Kar. 633), Kazi Taj Muhammad v. The State (P L D 1962 Kar. 330) and J. S. Daver v. Iqbal Qadir (P L D 1962 Pesh. 167).

4. I have carefully considered these arguments of the learned Advocate appearing on behalf of the applicant. It is true that in the complaint filed under section 448/403, P. P. C. none of the ingredients of section 441, P. P. C. had been set out. It is merely stated in this complaint that‑

"On 2nd October 1960 while the complainant was at Karachi with some work the accused unlawfully entered into the premises of Talpur Talkies with criminal intention and still continues to be in its possession with the same intention."

There is no specification of this intention beyond referring to it as criminal. In the case of Sumasamy Selvanayagam v. The King (52 Cr. L J 73) which case has been referred to by this High Court in a number of reported cases under sections 441 and 448, P. P. C., the Privy Council held that‑

"To establish criminal trespass the prosecution must prove that the real or dominant intent of the entry was to commit an offence or to insult, intimidate or annoy the occupant, and that any claim of right was a ‑mere cloak to cover the real intent, or at any rate constituted no more than a subsidiary intent."

In this very case their Lordships of the Privy Council also stated that‑

"Entry upon land, made under a bona fide claim of right, however ill‑founded in law the claim may be, does not become criminal merely because a foreseen consequence of the entry is annoyance to the occupant."

5. In this case, the letters C' and D' produced by Mr. Brohi as annexures to his revision application would indicate that the applicant entered upon the premises in question as the landlord thereof and in the exercise of a bona fide claim of right.

The letter Annexure C' is addressed to the applicant by three persons on behalf of the Firm of Standard Exhibitors of whom one is the opponent No. 2 Mr. Mohammad Ahmed Khan. In this letter dated 30th August 1960 the signatories assured the applicant of their intention to start the cinema, Talpur Talkies, Khairpur, on 30th September 1960, failing which their lease may be deemed to have terminated and the applicant will be at liberty to lease it afresh to any other party. In the letter Annexure D' dated 27‑11‑1960 one of the partners of the opponent's Firm has written to the Manager, Talpur Talkies to hand over the machine and the cinema hall etc. to the contractor Allah Dad Khan and obtain his receipt for everything small or big in the presence of two mashirs and the accountant. These letters then clearly show that the opponent and his Firm had given up the lease of the premises in question and the applicant as the landlord of these premises was at liberty to do with them what he liked. The third argument of Mr. Brohi that no counter‑affidavit had been filed on behalf .of the opponent No. 2 or any of his partners controverting or denying the allegations contained in this revision application is supported by the presence in Court today of and the admission made to me by the opponent No. 2 himself Mr. Muhammad Ahmad Khan. This gentleman admitted before me in open Court that the letter Annexure C' addressed to the applicant bears his signature. He also admitted that he does not oppose this revision application or deny or dispute any of its contents. He added that he and his partners have composed and compounded their differences with the applicant and that now there is no dispute between them. In view of this statement of Mr. Mohammad Ahmed Khan who is the complainant in the complaint against the present applicant which this revision petition seeks to have quashed, there is no other alternative for me but to accept the allegations as set out in this present revision application, to allow the application and to quash the complaint filed by the opponent No. 2 against the present applicant and now pending in the Court of the Sub‑Judge and F. C. M., Khairpur. Order accord ingly.

K. B. A.

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