HIGH COURT OF SINDH AT KARACHI

 

Criminal Acquittal Appeal No. 190 of 2016

 

 

Appellant             :         Shahrukh Akbar s/o Muhammad Akbar

                                      through Mr. Muhammad Asif, Advocate  

 

Respondents No.1&2:   (1) Mst. Farah Naz w/o Muhammad Zakir &                                             (2) Muhammad Zakir son of not known

                                      (husband of respondent No.1) through

Raja Aftab Ahmed Khan along with

Ms. Naeema Siddique, Advocates

 

Respondents No.3&4:   (3) Learned 2nd Additional District & Sessions

                                      Judge Central, Karachi & (4) The State

                                      through Mr. Abdullah Rajput, Deputy

                                      Prosecutor General Sindh

                                     

Date of hearing     :        02.5.2019

 

Date of Judgment :        02.5.2019

 

 

J U D G M E N T

 

 

Abdul Maalik Gaddi, J.–   Through this criminal acquittal appeal, the appellant has assailed the legality and propriety of the Judgment dated 31.3.2016 passed by the learned II-Additional District & Sessions Judge, Karachi (Central), in criminal petition No.182/2011 filed by him against respondents under Sections 3 and 4 of Illegal Dispossession Act, 2005, whereby the learned trial Court, after full dressed trial, acquitted the respondents No.1 and 2 by giving them benefit of doubt.

 

2.                 The facts of the complaint are that the complainant is owner and occupier under the legal and lawful sale agreement dated 8.7.2010 in respect of property bearing House No.B-77, Sector 11-A, admeasuring 288 square yards situated at North Karachi which he purchased from one Akif Akhtar Malik son of Abul Faizi Malik resident of Orangi No.11½, Block ‘G’, Pakistan Bazaar, Karachi and at the time of sale agreement the said Akif Akhtar Malik was in possession of said disputed property. It is further alleged that the seller handed over the vacant peaceful possession of the disputed property under the terms of sale agreement along with entire documents of the disputed property and mutation letter. It is further alleged that after taking possession of the disputed property the complainant started the work of renovation on it and deputed chowkidar and also kept the construction material for renovation work. It is further alleged that the respondent/ accused No.1 filed Suit No.886/2010 for Permanent Injunction in the court of IIIrd Civil Judge, Karachi Central against the seller and one Bashir in which the complainant was not made party with malafide intention and ulterior motives but in plaint the respondent/ accused No.1 admitted that the disputed property was sold out to complainant. It is further alleged that the respondent/ accused No.1 obtained interim status quo and immediately came at the disputed property along with respondent/ accused No.2 and threatened the chowkidar of the complainant to told his master about her and for vacating the disputed property immediately and she also pasted the poster at the outer gate/ wall of the disputed property. It is further alleged that after knowledge of the above suit the complainant filed an application U/O 1 R 10 R/w Section 151 CPC with prayer to make him party. It is further alleged that the complainant also received written statement of seller filed in above suit in which he filed family contract/ agreement in respect of share of respondent/ accused No.1 and an application U/O 7 R 11 CPC was filed. It is further alleged that the respondents/ accused started campaign of harassment, coercion and terrorism and often came at the disputed property and threatened the chowkidar and attempted to dispossess the complainant and demanded possession and the chowkidar used to inform the complainant about such acts of the respondents/ accused and the complainant also informed the concerned P.S. about such incidents but all in vain. It is further alleged that lastly on 17.2.2011 the respondents/ accused along with some armed persons came at the disputed property and after beating the chowkidar ousted him from there and put their locks and locked it along with all construction material therefore the said chowkidar immediately informed the complainant who immediately reported to concerned P.S. but no action was taken. It is further alleged that a legal notice was served upon concerned SHO with request to take action against the respondents/ accused but all in vain. It is further alleged that the complainant has been dispossessed illegally, unlawfully and without lawful authority by the respondents/ accused from the disputed property and they entered into and grabbed, controlled and occupied it by dispossessing the complainant therefore they have contravened the provisions of Illegal Dispossession Act, 2005, for restoration of possession and action against respondents.

 

3.                 It appears from the record that learned trial Court after receipt of this complaint, it was sent to SHO of PS Sir Syed for investigation and report within 15 days, who conducted investigation and submitted his report on 26.3.2011 and after hearing the counsel for appellant summons were issued to the accused persons, who subsequently appeared and furnished surety of Rs.10,000/- each and participated in the proceedings.

 

4.                 It also appears from the record that after supplying the documents to the respondents, a formal charge against accused persons was framed at Ex.2, to which they pleaded not guilty and claimed to be tried vide their pleas at Ex.2/A and 2/B.

 

5.                 To substantiate its assertion, the appellant/ complainant examined himself at Ex.3 and produced sale agreement at Ex.3/A, receipt of payment at Ex.3/B, copy of Notice published in Daily Newspaper Jang at Ex.3/C, Mutation letter at Ex.3/D, Deed of Relinquishment at Ex.3/E, copy of Civil Suit No.886/2010 filed by accused No.1 at Ex.3/F, copy of notices pasted on suit property by accused No.1 at Ex.3/G and 3/H, copy of application along with affidavit filed by the appellant/ complainant for joining him in a suit at Ex.3/I and 3/J, copy of legal notice sent by the appellant/ complainant to SHO at Ex.3/K. The appellant/ complainant also examined his witness Bashir Ahmed Sheikh at Ex.4. These witnesses were cross-examined by the counsel for respondents No.1 and 2 and then the advocate for the appellant/ complainant closed his side at Ex.5.

 

6.                 It reveals from the record that accused persons have been examined under section 342 CrPC at Ex.6 & 7 in which they have denied the allegations of appellant/ complainant leveled against them. The accused Mst. Farah Zaiba has further stated that they are six legal heirs namely Abul Faizi Malik, Farah Zaiba, Mst. Quratul Ain, Farrukh Jamil, Asif Akhtar Malik and Akif Akhtar Malik. She has further stated that her father and brother Abul Faizi Malik and Akif Akhtar Malik prepared forged relinquishment deed in which they had shown two legal heirs of deceased Mst. Saeeda Khatoon though there were her six legal heirs and on the basis of such relinquishment deed they executed sale agreement in favour of appellant/ complainant in respect of disputed property therefore she filed suit No.612/2011 against her brother Akif Akhtar Malik, the appellant/ complainant and City District Government in the court of 1st Senior Civil Judge, Karachi Central which is still pending for adjudication. She has further stated that they have not forcibly occupied the disputed house but they are residing in it since 1989 and the appellant/ complainant of this case has no legal right or character over disputed house and he has never remained in possession of it. She has further stated that no any such type of incident has taken place as alleged by the appellant/ complainant. Co-accused Muhammad Zakir has adopted same further statement as given by his wife co-accused Mst. Farah Zaiba Naz. However, the accused Mst. Farah Zaiba examined herself on oath but they did not lead any evidence in their defence.

 

7.                 Mr. Muhammad Asif, learned counsel for appellant contended that the judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-à-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the respondents are not supportable from the evidence and documents on record. He further submitted that the respondents have been directly charged and that discrepancies in the statement of witnesses are not so material on the basis of which respondents could be acquitted. He further contended that the learned trial Court has based its finding of acquittal merely on the basis of minor contradictions on non-vital point in the statements of prosecution witnesses and that the prosecution evidence has not been properly appreciated. During the course arguments, learned counsel for appellant has taken to me towards various documents and the evidence of the prosecution witnesses and has also contended that respondents have forcibly occupied the subject premises of the case, therefore, the same may be restored to the appellant and the impugned order may be set-aside by allowing this appeal and action may be taken against them as per law.

 

8.                 Learned Deputy Prosecutor General assisted by learned counsel for respondents has supported the impugned judgment by submitting that the same is correct and proper. According to him, there is no misreading and non-reading of evidence in the impugned judgment. He submits that the provisions of Sections 3 and 4 of Illegal Dispossession Act, 2005 do not attract in the present case, as according to him in fact no incident as alleged by the appellant has taken place. However, according to him respondents are residing in the subject premises since 1989 and a civil suit bearing No.612/2011 against the appellant and others was filed by respondent No.1 for cancellation of documents in favour of the appellant was also decreed and the civil suit filed by the appellant was dismissed. He further submits that whole claim of the appellant is based upon false and fabricated story, therefore, this appeal may be dismissed.

 

9.                 I have heard the learned counsel for parties at a considerable length and have gone through the evidence and documents on record.

 

10.            According to the appellant, he purchased the subject house/ property through sale agreement dated 08.7.2010 from the owner and occupier namely Akif Akhtar Malik, who was in possession of disputed property and after sale agreement, he was handed over the possession of the disputed property. The appellant/ complainant has further alleged that after taking the possession of the disputed property, he started work of renovation over it and deputed chowkidar and kept the construction material there, but the accused persons on 17.2.2011 along with some armed persons came at the disputed property and forcibly occupied the same and in this regard an FIR was lodged by the appellant being Crime No.143/2011 on 19.3.2011 after delay of about more than one month for which no satisfactory explanation has been furnished. Therefore, the question of false implication of the respondents in this case with due deliberation and consultation could not be ruled out. During the course of arguments, I have specifically asked the question from learned counsel for appellant that what was the fate of that FIR, he submits that according to his information, no action has been taken by the police against respondents. During the course of arguments, I have again specifically asked the question from learned counsel for appellant that when police has not taken action, he has no satisfactory answer with him. However, he submits that the parties are already in litigation by filing civil suits against each other for establishing their titles and those matters are pending before the competent court of law for adjudication. It appears from the record that parties are already in litigation with regard to establishing their title, which fact shows that almost the case in hand appears to be of civil nature, but the same is converted into criminal matter.

 

11.            The allegation against the private respondents are that they have occupied the subject property of this case by force after maltreatment to the chowkidar of appellant/ complainant, but the name of the chowkidar, who was deputed by the appellant at site has not been given in the memo of petition nor he has been examined before the trial Court. In my humble view, the evidence of said witness was necessary to have been produced to corroborate the appellant’s case, particularly, with regard to occurrence of the incident, but no such evidence was produced. Even otherwise, no explanation in this behalf has been tendered by appellant to justify the non-examination of said witness. Therefore, no reliance can be placed safely on the evidence of appellant’s witnesses. The act of withholding of most material witness/ chowkidar would create an impression that the witness if would have been brought in to witness box, he might not have supported the appellant’s case and in such an eventuality, the appellant must not be in a position to avoid the consequences; hence, a dent has been caused to the case of the appellant.

 

12.            I have gone through the evidence on record along with impugned judgment with the able assistance of learned counsel for parties and find number of contradictions in between the statements of prosecution witnesses, which are material and fatal to the prosecution case and these contradictions/ lacunas/ infirmities have already been highlighted by the learned trial Judge in its judgment of acquittal. For the sake of convenience, it would be proper to reproduce the relevant portion of impugned judgment, which reads as under:

“The complainant has examined himself and he has been subjected to cross examination by learned advocate for the accused in which there is series of admission made by him regarding the lease of the disputed house in the name of deceased Saeeda Khatoon, purchase of house from seller Akif Akhtar Malik who was not the owner of the disputed house and competent to execute the sale agreement in respect of disputed property. The complainant has also admitted that he has not produced any documentary or other proof about the possession of Akif Akhtar Malik at the time of execution of sale agreement and as to when he was handed over the possession of disputed house in presence of Bashir Shaikh and Muhammad Amir. He has also admitted that he has not mentioned the name of chowkidar in his petition and has not produced him in evidence. He has also admitted that he has not produced any documentary proof that on 14.10.2010 possession of disputed house was with him and he was delivered the possession as per para 3 of the sale agreement. He has also admitted that all the legal heirs of the deceased were not present at the time of handing over possession to him and there were six legal heirs of the deceased including the accused No.1 Mst. Farah Zaiba and all the legal heirs were the co-owners and co-sharer of the property. He has also admitted that the sale agreement was executed between him and Akif Akhtar Malik and according to annexure B-3 only the names of Abul Faizi Malik Rehmani and Akif Akhtar Malik Rehmani are shown as L.Rs of deceased Saeeda Khatoon while the names of remaining legal heirs are not mentioned in it.

The admissions made by the complainant in his evidence shows that he has not produced any authentic oral as well as documentary evidence to prove that he was handed over the possession of the disputed house by Akif Akhtar Malik and was subsequently dispossessed by the accused persons and even the complainant has alleged his dispossession from the disputed house on 17.2.2011 but his witness Bashir Ahmed in his evidence has alleged that on 12.2.2011 the complainant came to him and told that the disputed property was occupied by both the accused being sister and brother in law of Akif Akhtar Malik which also shows that he has also shown dispossession of the complainant from the disputed house prior to 17.2.2011 as alleged by the complainant.”

 

13.            It is pertinent to mention here that as per record, the story of the case also revolves towards Akif Akhtar Malik, but he has also not been examined in this case to corroborate the case of the appellant. This aspect of the case also creates doubt in the prosecution case.

 

14.            During the course of arguments, I have also specifically asked the question from learned counsel for appellant to point out/ show any piece of evidence which is not supportable from evidence on record, no satisfactory answer was available with him. Perusal of record shows that the trial Court has rightly acquitted the accused through impugned judgment, which neither perverse nor arbitrary. So far the appeal against acquittal is concerned after acquittal of respondents/ accused has acquired double presumption of innocence and this Court would interfere only if the judgment/ order was arbitrary, capricious or against the record. But in this case as observe above, there were number of infirmities and contradictions in the impugned judgment of acquittal. Under the aforementioned facts and circumstances, I am of the considered view that the impugned judgment did not suffer from any misreading or non-reading of the evidence. As regards to the consideration warranting the interference in appeal against acquittal and an appeal against conviction principle has been laid down by the Hon’ble Supreme Court in various judgments. In case of State/ Government of Sindh through Advocate General Sindh, Karachi vs. Sobharo reported as 1993 SCMR 585, Hon’ble Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

“14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”

 

In the present case, no gross illegality or infirmity has been pointed out by learned counsel for appellant.

 

15.            For what has been discussed above, I am of the considered view that impugned judgment is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Hon’ble Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, this Criminal Acquittal Appeal is without merits and the same is dismissed along with listed applications.

  

       JUDGE

asim/pa