IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Acquittal Appeal No.S-06 of 2012
Present:
Mr. Justice Amjad Ali Sahito
Appellants: 1. Dr.Bhagwan Das s/o Menghraj Mal Pathai, 2. Dr.Bhagwant Devi w/o Dr.Bhagwandas Pathai, through Mr.Muneer Ahmed Khokhar, Advocate.
Respondents: 1. Haji Gahano Khan s/o Haji Khan Jatoi, 2. Mashooq Ali s/o Haji Gahano Khan Jatoi, 3. Ghulamullah Jatoi Munshi, through Mr.Inayatullah Morio, Advocate.
State: Through Mr. Raja Imtiaz Ali Solangi, A.P.G
Date of hearing: 19.03.2018.
Date of judgment: 30 .03.2018.
JUDGMENT
AMJAD ALI SAHITO, J.- The instant appeal is directed against the order dated 28.12.2011, whereby the above named respondents/accused were acquitted u/s.265-K Cr.PC for an offence punishable u/s. 3 of Illegal Dispossession Act, 2005, by learned 7th Additional Sessions Judge, Larkana.
2. The brief facts leading to disposal of instant appeal are that on 22.07.2007, the above named respondents/accused forcibly dispossessed the appellants/complainants by occupying their property bearing Survey No.60/1 area 04 Acres, 60/2, area 03-23 acres situated at Deh Wah Nabi Bux, Tapo Bakapur, Taluka and District Larkana, without any lawful authority besides destroying their residential plot scheme of Gulshan-e-Latif.
3. After filing of the complaint, the report was called from Mukhtiarkar concerned and on the basis of such report, an application under section 265-K Cr.PC was moved before the learned trial Court wherein the notices were issued to the complainant. The learned trial Court after hearing the parties, acquitted the respondents/accused in terms of Section 265-K Cr.PC vide impugned order dated 28.12.2011, which the appellants/complainants have impugned before this Court by way of filing the instant appeal.
4. Mr.Muneer Ahmed Khokhar, learned counsel for appellants/ complainants has contended that the appellants/complainants are actual and lawful owners of the property in question; that the respondents/accused without any lawful authority entered into the property of appellants/complainants and forcibly dispossessed them therefrom, that the sufficient material was brought on the record to connect the respondents/accused with commission of offence, which was not considered by the learned trial Court while acquitting the respondents/accused under section 265-K Cr.PC at premature stage of the case. By contending so, he prayed for setting aside the impugned order passed by learned trial Court and remand of the case.
5. In rebuttal, Mr.Inayatullah Morio, learned counsel for the respondents/accused argued that the respondents/accused have not dispossessed the appellants/complainants from their property but infact the respondent/accused Haji Gahano Khan is lawful owner of the property in question which is evident from the report of Mukhtiarkar Revenue Taluka Larkana; that the appellants/complainants have filed a direct complaint with malafide intention just to usurp the property of the respondents/accused, in these circumstances, he lastly prayed for dismissal of instant appeal.
6. Mr.Raja Imtiaz Ali Solangi, A.P.G supported the impugned judgment passed by learned trial Court.
7. I have considered the above arguments and perused the record.
8. At the very outset, it is pertinent to mention here that the Illegal Dispossession Act, 2005, is a special legislation to protect the lawful owners and occupiers of immoveable properties from their illegal or forcible dispossession therefrom by the property grabbers. It will be expedient to reproduce the provision of Section 3 of the Act for ready reference;-
“3. Prevention of illegal possession of property, etc.--- (1) No one shall enter into or upon any property dispossessing/grab/control or occupy it without having any lawful authority to do so with the intention to dispossess/grab/control or occupy the property from owner or occupier of such property.
(2) Whoever contravenes of the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of offence shall be compensated in accordance with the provision of Section 544 of the Code.
9. The object and spirit of legislation of Illegal Dispossession Act, 2005, is to curb the activities of property grabber. Preamble of the act ibid manifests that it aims to protect lawful owners and occupiers of immoveable properties from their illegal or forcible dispossession by the property grabbers. In the instant case, the appellants/complainants claim that they are owners of Survey No.60/1 area 04 acres, and Survey No.60/2, area 03-07 acres, situated at Deh Wah Nabi Bux, Tapo Bakapur, Taluka and District Larkana, and on 22.07.2007 they were illegally dispossessed therefrom but the Mukhtiarkar Revenue, Taluka Larkana in his report has submitted as under;-
(1) That as per entry No.3583 of VF VII-B of Deh Wah Nabi Bux, S.Nos.60/1 and 60/2 stands entered in the name of Qurban Ali s/o Nabi Bux Jatoi who purchased the same exclusively.
(2) Subsequently, vide entry No.3794 of VF VII-B of Deh Wah Nabi Bux, Qurban Ali Jatoi had sold the same to M/s. (1) Bhagwandas s/o Menghraj, 0.90 paisa and (2) Dr.Bhagwant Devi, 0.10 paisa share.
(3) Thereafter, vide entry No.6421 of VF VII-B of Deh Wah Nabi Bux, Dr.Bhagwandas had sold out his share, 0.90 paisa out of said survey numbers through registered sale deed to one Lal Bux son of Muhammad Ayoob Mangrio.
(4) Similarly, Lal Bux Mangrio had sold out the same viz.60/1 and 60/2 to the extent of 0.90 paisa share to Badaruddin s/o Majno Sario through Registered Sale Deed.
(5) Subsequently, Badaruddin s/o Majno Sario had sold out the above share of 0.90 paisa out of S.Nos.60/1 and 60/2 through Registered Sale Deed to Haji Gahano Khan s/o Haji Karam Khan Jatoi.
Both these survey numbers are lying uncultivated on site and leveling pitch work upon some portion of land by making Katcha routes have reportedly made by respondents.
10. It has borne out from the record that the land in question after purchase by the appellants/complainants was transferred through registered sale deed to three other purchasers for different times, but since then the appellants/complainants did not turn up to sue against any of its purchaser at any forum to substantiate their claim. Further, the report of Mukhtiarkar concerned also reveals that it was lastly transferred in the name of one Badaruddin Sario to the extent of 0.90 paisa out of Survey No.60/1 and 60/2, who sold out the same to one of the respondents/accused namely Haji Gahano Khan through registered sale deed, while the claim of remaining 10 paisa share out of said survey numbers in the name of appellant/complainant Dr.Bhagwant Devi is concerned, none of the appellants/complainants approached the Mukhtiarkar concerned for demarcation of the said land before or after filing of direct complaint, nor exhausted such appropriate remedy by filing such civil suit before the Court having jurisdiction. In that situation, the plea of appellants/complainants regarding ownership of the land in question does not call for.
11. The facts and circumstances of the case involved conclusion that firstly the parties have to approach the concerned for demarcation of the land in question and then to exhaust such remedy before the competent forum, if so desire. The scope of the interference in appeal against acquittal is narrow and limited for the reason that in acquittal, the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence that an accused shall be presumed to be innocent until proved guilty in other words presumption of innocence is doubled. As per dictums laid down by the Honourable Supreme Court, it has been categorically held that such judgment should not be interjected unless the findings are pervasive, arbitrary, foolish, artificial, speculative and ridiculous. In the instant case, there is no illegality or irregularity committed by learned trial Court while passing the impugned order, which does not call for any interference by this Court.
12. In view of facts and reasons discussed above, I find no gross misreading of evidence resulting in miscarriage of justice by the learned trial Court while recording acquittal of the respondents/accused u/s.265-K Cr.PC. Resultantly, the instant appeal merits no consideration and same is dismissed accordingly.
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