IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Acquittal Appeal No.S-07 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, 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 1st week of June, 2007, the respondents/accused named above forcibly occupied property of the appellants/complainants bearing Survey No.84/2 area 05-17 Acres, Survey No.85/1, area 01-26 acres situated at Deh Wah Nabi Bux, Tapo Bakapur, Taluka and District Larkana, without any lawful authority besides destroying the demarcation boundaries there from.
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. 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.84/2 area 05-17 Acres, and Survey No.85/1, area 01-26 acres situated at Deh Wah Nabi Bux, Tapo Bakapur, Taluka and District Larkana, and on 1st week of June, 2007, they were illegally dispossessed therefrom but the Mukhtiarkar Revenue, Taluka Larkana in his report has submitted as under;-
(1) Originally S.No.84/2 Deh Wah Nabi Bux, to the extent of 90 paisa share was sold out by Qurban Ali Jatoi to Dr.Bhagwandas and other through registered sale deed vide entry No.3794, dated 14.6.1997 V-F VII-B, Deh Wah Nabi Bux, Taluka Larkana.
(2) After that one Mr.Moti Ram s/o Sadoro Mal Hindu attorney of Dr.Bhagwandas sold out the same to the extent of 0.90 paisa share to one Lal Bux s/o Ayoob Mangrio through registered sale deed vide entry No.6421, dated 11.2.2004 of V-F VII-B of Deh Wah Nabi Bux, who again sold the same to Mr.Badaruddin Sario vide entry No.7751, dated 10.3.2006, of V-F VII-B, Deh Wah Nabi Bux, Taluka Larkana.
(3) Badaruddin Sario sold to Haji Gahno Khan s/o Karam Khan Jatoi vide entry No.8659, dated 11.11.2007, of V-F VII-B, Deh Wah Nabi Bux, Taluka Larkana by way of registered sale deed.
The disputed land was uncultivated (Banjar).
However, S.No.85/1, area 1-26 acres is not mentioned in the record viz. Land Register with that number.
10. The perusal of record reveals that the land in question after purchase by the appellants/complainants was transferred twice through registered sale deed to other purchasers for different times, but since then the appellants/complainants did not approach against any of its purchaser before any forum to justify their claim. Moreover, the report of Mukhtiarkar concerned also clarifies that it was lastly transferred in the name of one Badaruddin Sario to the extent of 0.90 paisa out of Survey No.84/2, who sold out the same to one of the respondents/accused namely Haji Gahano Khan through registered sale deed for which the appellant/complainant Dr.Bhagwandas had filed a civil suit bearing F.C.Suit No.112/2007 against the respondents and others for declaration, cancellation of documents, recovery of damages and permanent injunction. In these circumstances, when the ownership of the property is in dispute whereas the report of Mukhtiarkar shows that the respondents are owners of the said property, therefore, the claim of appellants/complainants regarding ownership of the land in question under Illegal Dispossession Act, does not call for. In addition to this, it is also evident from the report of Mukhtiarkar that the Survey No.85/1 area 1-26 acres, Deh Wah Nabi Bux, Taluka Larkana, is not mentioned in the record of land register with said number.
11. The facts and circumstances of the case involved conclusion that 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. Consequently, the instant appeal merits no consideration and same is dismissed accordingly.
J U D G E
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