IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S-57 of 2012
Appellant : Ghulam Ali s/o Hazar Khan Arbani
Through Mr.Muhammad Azeem Soomro, Advocate
Respondents : Abu Bakar s/o Haji Bux Pathan Through Mr.Abdul Rehman Bhutto,
Advocate
The State through Mr.Raja Imtiaz Ali Solangi,
A.P.G
Date of hearing : 24.09.2018
Date of decision : 28.09.2018
J U D G M E N T
IRSHAD ALI SHAH, J-.The appellant by way of instant appeal has impugned judgment dated 13.06.2012 passed by learned 2nd Additional Sessions Judge, Jacobabad, whereby he for an offence punishable u/s.3 of illegal dispossession Act, 2005 was convicted and sentenced to undergo R.I for five years and to pay fine of Rs.10,000/- and in case of default to make payment of fine, to undergo S.I for period of three months.
2. The facts in brief necessary for disposal of instant appeal are that; as per private respondent, the appellant and ten others have encroached over an area of 1 ½ Acres of his landed property out of Survey No.396 and 397 situated at Bismillah Bagh, Deh Jacobabad. Accordingly, he filed a direct complaint under the provision of Illegal Dispossession Act. The same on the basis of reports so furnished by SHO P.S Civil Line Jacobabad on 22.03.2012 and Mukhtiarkar Revenue Jacobabad on 14.03.2012 was brought on record.
3. At trial, the appellant and ten others pleaded not “guilty” to the charge and private respondents to prove it examined himself and produced certain documents and then closed the side.
4. The appellant and co-accused in their statements, recorded u/s342 Cr.PC, denied the prosecution/complainant’s allegation by pleading innocence. They did not examine any one in their defence or themselves on oath but produced certain documents in support of their plea of innocence,
5. On evaluation of evidence, so produced by the prosecution/complainant, the learned trial Court acquitted all (the accused) excepting the appellant by way of judgment 13.06.2012, which the appellant has impugned before this Court by way of instant appeal.
6. It is contended by learned counsel of the appellant that the appellant being innocent was involved in this case falsely by the complainant party only to create pressure against him to withdraw his Revenue appeal, which is pending adjudication before Member Board of Revenue Sindh; that the appellant has been convicted on the basis of evidence which was already disbelieved by learned trial Judge while recording acquittal of co-accused. By contending so, he sought for acquittal of the appellant.
7. It is contended by learned counsel for private respondents that the appellant has rightly been convicted by learned trial Court on the basis of FIR Crime No.48/2009, u/s.392, 506/2 PPC with P.S Civil Line Jacobabad, which he has lodged against the private respondent for committing theft of bricks from the plot under his possession, it tentamounts to his admission. By contending so, he sought for dismissal of the instant appeal.
8. Learned A.P.G for the State recorded no objection to acquittal of the appellant.
9. I have considered the above arguments and perused the record.
10. As per the private respondent, an area of 1 ½ Acre of the land out of Survey No.396 and 397, situated at BismillahBagh, Deh Jacobabad was occupied by the appellant and ten more persons and he then filed a direct complaint for action against them under the provisions of Illegal Dispossession Act. It was brought on record on the basis of reports of SHO P.S Civil Line Jacobabad and Mukhtiarkar Revenue Jacobabad. Significantly, none of the reporting officer was examined by the private respondent at trial. In that situation, no much reliance could be placed upon the reports in absence of evidence of their authors. Even otherwise, nowhere in the said reports, it is reported by SHO P.S Civil Line Jacobabad and Mukhtiarkar Revenue Jacobabad that the land owned by the private respondent is occupied by anyone. It may well be added that to maintain a conviction under section 3 of the Act, the complainant must establish either illegal possession by means of unauthorized entry into or upon disputed property (section 3(1) of Act) or by proving his forcible or wrongful possession (section 3(3) of Act). In either situation the complainant must establish to be falling within meaning of ‘owner’ or ‘occupier’ of disputed property and to have been forcibly or wrongfully removedbut when admittedly the report (s), on basis whereof, the cognizance was taken, no where indicated the appellant was in possession of land of private respondent. When it was never safely established that appellant and acquitted co-accused had been in illegal possession of property of private respondent then no conviction legally could sustain under section 3 of the Act.
11. Further, it is also a matter of record that though allegations against all the accused persons were one and same but on one and same set of evidence, the learned trial court judge acquitted all other co-accused persons, excepting appellant. Legally, the evidence should be believed or disbelieved as a whole and not in parts unless exceptions so justifies because the Criminal Administration of Justice always insist giving benefit of doubt to accused.
12. In case of Sardar Bibi and others vs. Munir Ahmed and others (2017 SCMR-344), it was held by the Hon’ble Court that;
“When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused”.
13. Only thing which apparently prevailed with learned trial Court for convicting the appellant was that he himself had lodged FIR Crime No.102/2007, u/s.392, 34 PPC against the private respondents and others, for having taken away his bricks from the plot. Though legally a counter claim / version may, at the most, could be taken as a circumstance for a certain part of allegations but not as proof of guilt for whole allegations. Even otherwise, the lodgment of an FIR of theft of bricks by appellant himself even would never relieve prosecution / complainant from its / his bounden obligation to prove the offence which too in the manner as claimed. It is settled principle of law that whosoever makes allegation has to prove the same. The burden of proof in a criminal case in no case could be shifted to the accused. Any failure or a reasonable dent in such proof would always be sufficient for acquittal by extending benefit of doubt. The conviction against the appellant on account of his filing an FIR against the private respondent legally is not sufficient to hold conviction. During course of hearing of appeal, the report from Mukhtiarkar was also called for. As per his report dated 23.01.2018, not even the single inch of the land owned by the private respondent is in possession of the appellant. Such report though is objected by the private respondent yet could not be lost sight of.
14. Based upon above discussion, the conviction and sentence recorded against the appellant by way of impugned judgment could not be sustained, it is set aside. Consequently, he is acquitted of the offence for which he was charged, tried and convicted by learned trial Court. He is on bail, his bail bond is cancelled and surety is discharged.
15. The instant appeal is disposed of accordingly.
JUDGE
.