Criminal Acquittal Appeal No.20 of 2013
Present
Mr. Justice Aqeel Ahmed Abbasi
Date of hearing : 21.10.2015
Date of order : 21.10.2015
Appellant : Syed Abdul Wahab Mehdi through
Mr. Suresh Kumar, advocate
Versus
Respondents : Bachal and others
State through Mr. Abdullah Rajput, A.P.G.
Respondents Bachal and Soomar are present in person.
J U D G M E N T
Aqeel Ahmed Abbasi, J. Through instant Crl. Acquittal Appeal, the appellant has impugned the judgment dated 30.11.2012 passed by the 1st Additional Sessions Judge, Thatta, whereby, Private Complaint No.05 of 2011 filed by the appellant under Section 3, 4 and 8 of Illegal Dispossession Act, 2005, against the respondents was dismissed and the respondents No.1 to 5 were acquitted under Section 265-H(i) Cr.P.C.
2. Briefly, the facts as disclosed in the complaint filed by the appellant are that he is the owner of land bearing Survey Nos.607, 610 and 611 situated in Deh Lunda Muchara, Tapo Shhkapur, Taluka Jati, District Thatta, cognizance was taken by the 1st Additional Sessions Judge, Thatta on the aforesaid complaint, copies under Section 265 Cr.P.C. was supplied to the accused and charge was framed and statement of complainant was recorded accordingly. The complainant examined himself and produced Form VII-B, whereafter, complainant closed his side for further evidence by filing statement in this regard. Statements of accused under Section 342 Cr.P.C. were recorded, wherein they all denied the allegations as leveled in the complaint. The 1st Additional Sessions Judge, Thatta, formulated following two points for determination in the matter:-
(1) Whether about two years back of filing of this complaint the accused named above without having any lawful authority or title or right, illegally encroached/dispossessed the complainant from his land bearing Survey Nos.607, 610 and 611 situated in Deh Lunda Muchara, Tapo Shahkapur, Taluka Jati District Thatta?
(2) What should the judgment be?
3. After examining the material placed on record, the 1st Additional Sessions Judge, Thatta, recorded his findings and decided the point No.1 as not proved and consequently acquitted the accused persons under Section 265-H(i) Cr.P.C. while recorded detailed reasons for such findings in the impugned judgment.
4. Learned counsel for the appellant submits that an offence falling under Illegal Dispossession Act, 2005 was reported by the appellant, whereafter, the learned 1st Additional Sessions Judge, Thatta, took cognizance under Section 3/4 of the Illegal Dispossession Act, 2005, however, without assigning any valid reason, the complaint filed by the appellant has been dismissed inspite of the fact that there was sufficient material available on record to show that the respondents have forcibly occupied some portion of the land belonging to the appellant who are not allowing the irrigation water for the land of the complainant to reach to the lands of apellant. Per learned counsel, the impugned judgment does not contain any valid reason for rejecting the complaint filed by the appellant, therefore, the impugned judgment may be set-aside and the accused persons may be convicted for having committed offence under Illegal Dispossession Act, 2005, and the possession of subject land may be directed to be handed over to the appellant.
5. Conversely, respondents, namely, Bachal and Soomar, who shown their appearance in person have vehemently opposed the contention of the learned counsel for the appellant and submit that they are being unnecessarily dragged in the aforesaid proceedings as they have neither illegally occupied the land of the appellant nor they are in possession of the land belonging to the appellant. It has been stated by the respondents that they are very poor persons (Haris), who are not in a position to even engage a counsel and prayed that they may be saved from frivolous criminal proceedings against them at the instance of appellant. It has been further submitted that they cannot think to illegally occupy the appellant’s land or to dispossess him from his lands, on the contrary, they are residing adjacent to the water course No.16-R flowing from irrigation Bhuda land in Deh Jekri. It has been further stated by the respondents that they are old settlers over a land between block No.91 and 92 in Deh Jekri, which belongs to Irrigation Department, which fact can be determined from official record of Revenue Authorities. It has been prayed that instant appeal may be dismissed.
6. Learned APG has also opposed the contention of the learned counsel for appellant and submits that impugned judgment contained valid reasons and does not suffer from any error or illegality, therefore, instant acquittal appeal having no merits may be dismissed. Learned APG further submits that the ingredients of Section 3 and 4 of the Illegal Dispossession Act, 2005, are not attracted in the instant case as the appellant has miserably failed to point out as to how and when the respondents illegally occupied the land of the appellant, nor has produced any evidence or material to show that the respondents have forcibly dispossessed the appellant and illegally occupied his land. On the contrary, it has come on record that the respondents, who claimed to be poor haris of one Punhoon, whose land is adjacent to the land of the appellant near water course No.16-R and have built their houses on the land between Block 91 and 92 of Deh Jekri, which is not owned by the appellant. It has been further contended by the learned APG that such fact has not been controverted by the revenue authorities, whereas, it appears that the complainant in the garb of above complaint filed under Illegal Dispossession Act, 2005, is making an attempt to dispossess the respondents from their houses and to get control over the land in excess to his own land to facilitate water supply to his land through improper means. It has been argued that appellant may seek remedy before Revenue Authorities, if there is some dispute with regard to demarcation of land, instead of filing frivolous complaint under Illegal Dispossession Act, 2005.
7. I have heard the learned counsel for the appellant, the respondents present in person, as well as learned APG, and have also examined the impugned judgment and the material available on record. It is pertinent to note that pursuant to the inquiry conducted by the 1st Additional Sessions Judge, Thatta, in the aforesaid complaint from the concerned SHO and the Mukhtiarkar, it has come on record that the respondents have not occupied the agricultural land bearing Survey Nos.607, 610 and 611 situated in Deh Lunda Muchara, Tapo Shahkapur, Taluka Jati, District Thatta, which has been claimed to be owned by the appellant. Respondents are poor haris, who are working on adjoining land to the appellant, and claim to be old settlers in Block 91 and 2 of Deh Jekri. Perusal of the complaint filed by the appellant also reflects that the appellant has not been able to point out as to how and when the respondents illegally dispossessed the appellant or occupy his land nor there is specific mention of the area of land which according to appellant has been illegally occupied by the respondents. No evidence or material has been produced by the appellant before the learned trial Court to substantiate the allegation of illegal dispossession against the respondents. Moreover, from the evidence of the appellant and his cross-examination, it has come on record that the appellant did not disclose the date and time of the alleged incident or even the specific area of the land of the appellant upon which the respondents allegedly encroached and have illegally dispossessed the appellant. The appellant’s testimony in this regard before the trial Court is also contradictory and further reflects that the appellant has failed to produce any evidence or material to support his allegation against the respondents regarding offence of illegal dispossession in terms of Section 3 and 4 of the Illegal Dispossession Act, 2005. The learned trial Court, after having examined the contents of complaint and evidence of the appellant, reached to the conclusion that the complainant has failed to prove the charges of illegal dispossession against the accused persons and acquitted them under Section 265-H(i) Cr.P.C. It will be advantageous to reproduce the relevant finding of the trial Court in this regard, which reads as follows:-
“ According to complainant he is owner of agricultural land bearing survey No.607, 610 and 611 in deh Lunda Muchara Tapo Shapur Chakar taluka Jati District Thatta. The complainant has no where described the measurement/length/area of his land. According to complainant about two years back from the filing of this complaint the accused persons encroached his land in presence of witnesses. The complainant has not disclosed the names of his witnesses nor examined such witness. In cross examination the complainant has deposed that he does not know whether there is old Bhata in between block No.91 and 92 of same deh which is granted by irrigation department to present accused, even he does not know whether accused persons are residing adjacent to water course 16-R flowing from the irrigation Bhada. He also does not know that whether there is land of Punhoon adjacent to his land and the accused are Hari on the said land. I am unable to understand that the complainant has on one hand alleged that the accused persons have occupied his land by constructing their houses and he has no knowledge that whether accused are residing adjacent to water course No.16-R or the accused are working as Hari on a land owned by Punhoon which is adjacent to his land. The complainant has neither examined any witness nor examined the SHO PS Jati who inspected the land and submitted his report dated 22.7.2011 even he has not examined any Revenue Official.
The Mukhtiarkar Revenue Jati in his report dated 3.6.2011 reported that there is an irrigation bhada comprising on 66 feet from whom an irrigation water is leading to the lands of complainant but the respondents have occupied the bhada land. In last the Mukhtiarkar has submitted that the respondents have occupied Bhada which is in Mohaga/front of complainant’s land and they are not allowing the irrigation water for the land of complainant. The report of Mukhtiarkar is annexed with the report of Ali Raza Umrani the Supervising Tapedar Taluka Jati, wherein also it has been sated that the respondents are in possession of the Bhada land. The SHO in his report dated 22.7.2011 has also submitted that accused/respondents are in possession of a path and they are not allowing flow of water to the land of complainant. The SHO has no where submitted that accused/respondents have occupied the land of complainant. Further more this report of SHO has not been exhibited by the complainant.
In view of above discussion the point No.1 is answered as not prove.
POINT NO.2
Since, the complainant has failed to prove the illegal encroachment of accused persons over his land, therefore, the accused are acquitted u/s 265-H(i) Cr.P.C, they are present on bail, their bail bonds stand cancelled and sureties are discharged.”
8. In view of hereinabove facts and circumstances of the case, I do not find any error or illegality in the impugned judgment passed by the 1st Additional Sessions Judge, Thatta, in Private Complaint No.05/2011, whereas, the appellant failed to prove his case of illegal dispossession against the respondents without reasonable doubt. Accordingly, instant acquittal appeal being devoid of any merits was dismissed vide short order dated 21.10.2015, and these are the reasons for such short order. The appellant, however, would be at liberty to seek any other remedy by filing appropriate proceedings before competent Court of jurisdiction or forum, in accordance with law, without prejudice to observations made hereinabove.
J U D G E