Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 32 of 2015

Date of hearing : 09.12.2019.

Mr. Shewak Ram Valecha, Advocate for appellant / complainant.

Mr. Athar Iqbal Shaikh, Advocate for respondents No.2 to 5.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Respondents (1) Riaz Ahmed son of Pathan, (2) Shahnawaz son of Allah Dino (now expired), (3) Mir Muhammad son of Muhammad Saeedal, (4) Bashir Ahmed son of Sain Dino and (5) Gul Muhammad son of Nawab Ali were tried by learned III^rd Additional Sessions Judge, Mirpur Mathelo in Sessions Case No.171/2014 for offence under Sections 3, 5 & 7 of Illegal Dispossession Act, 2005. After regular trial, respondents have been acquitted by the trial Court vide judgment dated 08.05.2015, for the following reasons:

“ To prove this point complainant examined himself who in his evidence (Ex.09), has deposed that he had residential house bearing S.No.77, situated in deh and Tapo Jhangal Malik admeasuring 967 sq.ft. He further deposed that he was serving in police department and locked his residential house and started residing at police line New Pind Sukkur, therefore, his above residential house was lying vacant. On 15.10.2012, he along-with his brother Muhammad Pinyal and son Majid Hussain went to visit the above house, reached there and found lock of his house was broken, where accused persons namely Shahnawaz, Riaz Ahmed, Illahi Bux, Bashir Ahmed, Gul Muhammad, Mir Muhammad @ Miro, Guloo were sitting who were having K.Ks, guns, hatchets. He further deposed that all the accused issued threats to him for dire-consequences and forcibly occupied his house. Thereafter, he approached to Nekmards and narrated them facts regarding his illegal dispossession from his house but all in vain. He also approached to S.H.O P.S Ubauro and requested him for legal action but no fruitful result came out. Thereafter, he filed instant direct complaint. He prayed to remove the accused from illegal possession of his residential house and he may be put in physical possession of his residential house and accused may be prosecuted in accordance with law. Lastly he deposed that the accused present in Court are same.

Witness Majid Hussain, in his evidence (Ex.10) has deposed that complainant Allah Bux is his father. They have residential house bearing S.No.77, situated in deh and Tapo Jhangal Malik admeasuring 967 sq.ft. He further deposed that his father was serving in police department, therefore, they closed their residential house and shifted to Sukkur and their house was lying vacant. He further deposed that on 15.10.2012, he along-with his father, uncle Muhammad Pinyal went to visit the above house, reached there and found that their house was opened, where accused persons namely Shahnawaz, Riaz Ahmed, Illahi Bux, Bashir Ahmed, Gul Muhammad, Mir Muhammad @ Miro & Guloo were sitting who were having K.Ks, guns and hatchets. All the accused issued threats to him for dire-consequences and forcibly occupied their house. Thereafter, his father approached to Nekmards and narrated them facts regarding illegal possession over the house but all in vain. He further deposed that then he along-with his father approached to S.H.O P.S Ubauro and requested him for legal action but no fruitful result came out. Thereafter, his father filed instant direct complaint, with a prayer to remove the accused from illegal possession of their residential house and they may be put in physical possession of residential house and accused may be prosecuted in accordance with law. Lastly he deposed that accused present in Court are same.

I have considered the arguments of parties and perused the record including reports of Mukhtiarkar and SHO. The complainant in his complaint has allege that he has his own residential house in S.No.77, deh and Tapa Jhangal Malik admeasuring an area of 967 sq. ft and he was serving in police department, hence he locked his house and started to reside at Sukkur, police Line and left his residential house as vacant. But no where in his complaint or in his evidence he has disclosed that in which year he left his house vacant and only disclosed in para No.3 of the complaint that on 15.10.2012, he along-with his brother and son went to visit his house and found that lock of the house was broken and accused persons were present with deadly weapons but no any specific date and time of dispossession has been disclosed. The complainant in his evidence (Ex.9) has produced the copy of complaint (Ex.9/A), mutation entry (Ex.9/B), police report (Ex.9/C) and report of Mukhtiarkar (Ex.9/D). The perusal of report of SHO P.S Ubauro and Mukhtiarkar Goth Abad Scheme Ex.9/C & 9/D reveals that disputed property is under possession Riaz Ahmed and Guloo since last more than 20 years and they have constructed their house in the said area. The complainant not objected police report and report of Mukhtiarkar regarding possession of Riaz and Guloo legal heirs of Noor Muhammad Malik and not impleaded Guloo as proposed-accused and also not examined any Nekmard of locality.

Τhe defence of accused persons in their cross-examination was that in-fact their dead uncle Jaro Khan and Muhammad Pinyal, who is alive sold out the property in-question to one Noor Muhammad Malik in the sum of Rs.3000/- about thirty years back and delivered the possession and at present Riaz Ahmed and Guloo who are legal heirs of Noor Muhammad Malik are in possession of property in-question.

No doubt complainant in his evidence has produce mutation entry No.89 in respect of disputed property but he failed to bring any evidence on record which could show that he was dispossessed from his property after the promulgation of Illegal Dispossession Act-2005. Complainant himself has produced report of Mukhtiarkar Goth Abad Scheme in his evidence which reveals that property in-question is under possession of Riaz Ahmed and Guloo (Legal heirs of Noor Muhammad) since last 20 years back prior to introducing the Illegal Dispossession Act-2005, therefore, case of the complainant is not coming under the provisions of Illegal Dispossession Act-2005. The complainant failed to establish his case against the accused persons, failed to prove the charge against the accused.

In view of the above facts and circumstances, the complainant has failed to establish the case under section 3 (2) of Illegal Dispossession Act and evidence as furnished by the complainant and his witnesses, is not inspiring confidence and in-fact he himself brought the documentary evidence i.e report of Mukhtiarkar against him which looses the case of complainant. It was for the complainant to bring the evidence on record as per provisions of Illegal Dispossession Act to his dispossession after the promulgation of Illegal Dispossession Act (XI of 2005). The case-law cited by the counsel for complainant reported in 2010 P Cr. L J P-422, P. Cr. L J 2010 P-666 are not helpful to case of complainant. Hence this point is decided as not proved.”

2. Mr. Shewak Ram Valecha, learned advocate for the appellant submitted that there are minor contradictions in the evidence of the prosecution witnesses and trial Court has failed to appreciate the evidence according to the settled principle of law. He submitted for converting the acquittal to the conviction. In support of his submissions, he has relied upon the cases reported as Shahabuddin V/S The State (2010 P Cr. L J 422) and Malik Muhammad Akram V/S Muhammad Qahir and another (2010 P Cr. L J 666).

3. Mr. Zulfiqar Ali Jatoi, learned Additional P.G assisted by Mr. Athar Iqbal Shaikh, learned advocate for respondents No.2 to 5 argued that in fact it is not clear from the sanad that appellant / complainant was in possession of the house, which is the subject matter in the litigation. Appellant / complainant has also failed to point out the date, when he was dispossessed by respondents / accused. It is submitted that there are major contradictions in the evidence of the prosecution witnesses and trial Court has rightly recorded the acquittal in favour of the respondents and after acquittal they have double presumption of the innocence. Learned Additional P.G prayed for dismissal of this Acquittal Appeal.

4. I have carefully heard the learned counsel for the parties and perused the material available on the record.

5. In the present case, Mukhtiarkar has produced sanad at Ex.09/D. It is not clear whether house of the appellant / complainant is situated in Survey No.77 or in Survey No.366. There is no evidence that on which date, appellant was dispossessed and by whom. Appellant / complainant did not report the matter to the police regarding illegal occupation of his house by the respondents, though he was serving in the Police Department. It is by now well-settled that scope of the acquittal appeal is quite narrow and limited. While hearing the acquittal appeal, this Court is not supposed to re-appreciate the evidence, but only Court has to see whether judgment of the acquittal is perverse or arbitrary. In this case, impugned judgment is well reasoned and neither it is perverse nor arbitrary. Rightly, reliance is placed upon the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), wherein Hon’ble Supreme Court has observed as under:

“ 2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses’ presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed. ”

6. For the above stated reasons, this Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Abdul Basit