MEHMOOD HASSAN Versus THE STATE
1. This criminal revision application is filed against acquittal judgment dated 15‑10‑1986, passed by the learned Vth Additional Sessions Judge, Karachi (South).
2. The brief facts of the case are that the applicant Mehmood Hasan lodged report inter alia alleging therein that he had purchased a house/plot in June 1970, from Abdur Rehman for Rs.2,000. It was 200 sqr. yds and as was situated in Manzoor Colony. He had purchased it in the name of. his wife, but the sale agreement was executed by him. The house consisted of one room, one bathroom, one kitchen and laterin. The room had no roof. Plot had boundary wall and that he used to visit the same occasionally. That in the end of July 1972, he went to visit the said house as usual, but he found that accused (respondent No.2) Abdul Khaliq had repaired the boundary wall, and had constructed the roof over the room, and had thus trespassed in the house. He went to P.S. and lodged F.I.R. which was recorded under section 448/34 PPC against the respondent No.2 and his wife. The police after necessary investigation challaned the case before the S.D.M. Garden, Karachi. The trial Court acquitted the accused by order dated 30th September, 1979, which was challenged in Criminal Revision. No.35 of 1980, and the revision was allowed on 20th February, 1985, and the case was remanded back.
3. At the trial, the prosecution examined complainant, Mohammad Hussain, Sajid Ex.3,P.W. Mumtaz Ali, Ex.4, Mohammad Yousaf Ex.7.
4. After close of the prosecution case, the statement of accused Abdul Khaliq (respondent) was recorded under section 342 Cr.P.C. in which he stated that he had purchased the plot and is, therefore, residing there. The statement of co‑accused Mst. Irshad Begum was also the same. The accused Abdul Khaliq examined himself on oath and also examined Mohammad Afzal and Hadayat Ali in his defence. The Magistrate after considering the evidence, produced by the prosecution, convicted respondent Abdul Khaliq under section 488, P.P.C. and sentenced him to suffer R.I. for three months, while Mst. Irshad co‑accused was acquitted.
5. The respondent Abdul Khaliq challenged his conviction by way of appeal, being Criminal Appeal No.3 of 1986, and the learned Vth Additional Sessions Judge was pleased to acquit him vide judgment dated 15‑10‑1986.
6. The present revision is directed against the said acquittal judgment.
7. I have heard Mr. Imran Ahmad, learned counsel for the applicant /complainant, Mirza Abdul Rasheed learned counsel for respondent No.2, and Mr. Imam Bux Shaikh, learned counsel appearing for the State.
8. The contention of Mr. Imran Ahmad is that the learned trial Judge has erred in holding that since the complainant was not present in the house/plot at the time of trespass, therefore, there was no intention on the part of the applicant to intimidate, insult or annoy the complainant, and therefore, ingredients of the offence were not proved. He has further contended that the owner may be present or may not be present at the time when trespass is committed, yet if it proved, that the premises in dispute were in possession of the complainant at the time of trespass, the person trespassing will be liable under section 448 P . P . C .
9. Mr. Abdur Rasheed, learned counsel appearing for the private respondent has contended that there is a Civil Suit No.2720 of 1984 pending between the same parties with regard to same property, and that since the complainant /applicant was not in possession of premises in dispute, at the time of incident, no offence was made out under section 448 PPC, and the acquittal of the appellant by the learned Additional Sessions Judge was justified.
10. Mr. Imam Bux Shaikh, learned counsel appearing for the State has adopted the arguments of Mr. Abdur Rasheed, and has contended that he supports the judgment of acquittal.
11. I have considered the contentions of the learned counsel and have also gone through the evidence produced in the case. I would like to point out that this being a revision against the acquittal, this Court would not ordinarily interfere with the orders of acquittal unless there was some illegality committed or the acquittal judgment was challenged on some technical ground. Reliance is placed on Mrs. Ann Colemn v. Arif and another P L D 1964 Kar. 81; it was held by this Court that:‑----
12. "While dealing with the revision application against acquittal the only order which the High Court can pass will be the order of re‑trial. The view of this Court consistently has been that the order of retrial on revision against acquittal should not invariably be made, unless it is made on technical ground, as otherwise such an order would tantamount to a direction to the lower Court to convict the accused."
13. In the present case, the proceedings against the private respondent started in 1972 and there was protracted trial for 13 years, and by now nearly fifteen years are over, and the offence being petty one it will not be appropriate, to order for retrial even if this Court is convinced that the order of acquittal was improper or was based on insufficient materials.
14. In view of the above discussion, revision application is dismissed.
15. However, the learned Judge before whom the Civil Matter concerning the premises in dispute is pending will decide the matter in accordance with law, uninfluenced by the decision in the above revision application.
16. S . A . / M‑316 / K ????????????????????????????????????????????????????????????????????????????? Revision dismissed.