Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. S – 152 of 2019
Date of hearing : 20.01.2020.
Date of judgment : 20.01.2020.
Mr. Attaullah Bhutto, Advocate for appellant / complainant.
Mr. Zulfiqar Ali
Jatoi, Additional Prosecutor General.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant /
complainant Muhammad Nawaz son of Sawad Khan Shar has impugned the judgment
dated 19th February 2019. Respondents / accused (1) Habib son
of Allah Bux, (2) Zabro son of Habib and (3) Saleem son of Habib, all
by caste Shar, were tried by learned IVth Additional Sessions Judge,
Mirpur Mathelo in Sessions Case No.148/2017 for offence under Section 3 (2) of
Illegal Dispossession Act, 2005. On the conclusion of the trial, vide judgment
dated 19th February 2019, above named respondents / accused were
acquitted by the trial Court.
2. Brief
facts of the prosecution case, as reflected in the judgment of the trial Court,
are as under:
“ The above Sessions Case arose out of
complaint under section 3 (2)
of Illegal Dispossession Act-2005, to the effect that complainant is lawful
owner of an agricultural land bearing Block Nos. 1699/1 (04-00) acres, 1699/2
(04‑00) acres, 1699/3 (01-26)
acres, total area 09-26 acres,
situated in Miran Shah Patt, deh Sutiyaro Chak No.1, Tapo Guloo Pitafi, Taluka
Daharki, District Ghotki, as per revenue record viz. village Form-II. According
to contents of criminal complaint, in the past complainant was cultivating the
land through his partners/above
named proposed-accused, according to complainant proposed-accused said to
complainant for selling the land to them as per present Market value, but complainant refused, for accused were issuing threats.
2. It
is further alleged in the complaint that on 28.12.2016, at evening time proposed-accused possessed over the land
of complainant illegally and unlawfully on gun point such incident of
dispossession was witnessed by Abid and Bashir, then complainant approached to
SHO P.S Dad-Laghari, but his request was declined, therefore, complainant has
filed complaint with a prayer
to take cognizance against the accused in accordance with law and they may be
removed from illegal possession and Possession
of the same land be handed over to complainant and accused may be punished
in accordance
with law.”
3. Trial
Court framed the charge against the accused at Ex.03. They did not plead guilty
and claimed to be tried.
4. At
the trial, prosecution examined two (02) prosecution witnesses. Thereafter, prosecution
side was closed.
5. Statements
of accused were recorded under Section 342, Cr. P.C at Ex.07 to 09, in which accused
claimed false implication in this case and denied the prosecution allegations.
Accused did not lead evidence in their defence and declined to give statement
on oath in disproof of prosecution allegations.
6. Learned
trial Court after hearing learned counsel for the parties and assessment of the
evidence, vide judgment dated 19th February 2019, acquitted the above
named accused.
7. Complainant being
dissatisfied with the acquittal of the accused has filed this appeal.
8. Learned
advocate for the appellant / complainant argued that respondents / accused have
illegally occupied the land. It is further contended that there were minor
contradictions in the evidence. The same will not affect the case of
prosecution. Lastly, it is contended that trial Court failed to appreciate the
evidence according to the settled principle of law, and prayed for converting
the acquittal to the conviction.
9. Mr. Zulfiqar Ali
Jatoi, learned Additional P.G argued that there were material contradictions in
the evidence of the prosecution witnesses, which go to the root of the case. It
is further argued that there was dispute over the demarcation of the land.
Appellant / complainant has failed to prove that he was in possession of the
disputed land. Learned Additional P.G argued that trail Court has properly
appreciated the evidence, and acquittal order requires no interference by this
Court.
10. I
have carefully perused the impugned judgment and relevant record. It appears
that trial Court, vide judgment dated 19th February 2019, acquitted
the accused mainly for the following reasons:
“11. In order to prove the case, complainant has
examined himself at Ex.4 and he has also examined witnesses Abid Ali.
Complainant has produced Form VII-B bearing revenue entry No.629, showing his
ownership over the land in-question and has stated that on 28.12.2016, accused persons namely Habib,
Nadeem, Saleem and Zabro, armed with deadly weapons, came at the land,
dispossessed complainant and forcibly occupied the land without any lawful
authority.
12. Complainant
in his cross-examination has stated that he does not know whether Allah Bux
father of accused Habib was owner of land in B.No.27. Complainant admitted that he is one of the witness in
the case of Illegal Dispossession Act moved by the witness Bashir and his
witness Bashir had also filed civil suit before Senior Civil Judge Ubauro,
in which he is one of the witness.
13. Witness
Abid Ali, in his cross-examination has admitted that he is witness of complainant
in other cases, therefore, he seems to be interested witness. Though there
is report of Mukhtiarkar and SHO on record in respect of landed property that
accused are in possession of land belonging to complainant but during the
course of trial they have not been examined as witnesses as such there is no
corroboration to the evidence of complainant to prove the allegations of
dispossessing illegally the land of complainant by the proposed-accused
persons.
14. From
the above evidence, there appears material contradictions on material points,
complainant in his cross-examination has stated that firstly they saw accused
at a distance of 60 ft, on the contrary witness Abid Ali has stated that
firstly they saw accused from distance of 40 paces. Complainant has deposed
that he does not know how many time consumed by them up to reach at the land,
while his witness Abid has stated that they reached at the land within 30
minutes. Complainant in his examination in chief has deposed that on 28.12.2016, accused Habib, Nadeem, Saleem
and Zabro forcibly occupied his land and he along with witnesses entreated the
accused but accused forcibly occupied his land on gun point, on the contrary
witness Abid Ali has deposed that accused made aerial firing for their
harassment.
15. Besides
above, according to the contents of para No.3 of the criminal complaint,
accused are partner of complainant and were demanding the land from him. However, accused in their statements have
stated that their land is situated adjacent to the lands of complainant bearing
UA. No:27, admeasuring 06-00
acres, in which their houses are constructed since 1995 and complainant is
disputing with them over demarcation.
16. Moreover, the alleged incident is
shown to have taken place on 28.12.2016, while complaint in hand is
filed on 04.1.2017, with the
delay of about 5/6 days for which complainant failed to furnish any plausible
and cogent reason, that also creates doubt
in the case of complainant.
17. The version of complainant is not supported
by independent corroboration, only one witness Abid has been examined by
complainant who seems to be interested witness as it is admitted position that
this witness is witness of complainant in other cases. Moreover, complainant
has not examined Mukhtiarkar Daharki, support of his version in order to prove
that he has been dispossessed from his land, which also creates dent in the
case of complainant. Hence, this point No.1 is answered as not proved.”
11. In
the present case, appellant / complainant has failed to produce any document in
order to show that he remained in possession of land in question. Appellant /
complainant has also failed to produce / examine Mukhtiarkar and SHO in support
of his case. From the perusal of the evidence, it transpires that there is
dispute between the parties over the demarcation of the land. PW-2 Abid Ali, in
his cross-examination, has admitted that father of the accused and father of
the complainant are real brothers inter se. Learned trial Court, in the
impugned judgment in para No.15, apart from considering the contradictions, has
held that accused are the partners of the complainant and were demanding the
land from him, and accused in their statements have stated that their land is
situated adjacent to complainant’s land bearing UA No.27 measuring 06-00 acres,
in which houses are constructed since 1995, and complainant is disputing with
them over the demarcation. Moreover, after acquittal, accused have got the presumption of double innocence. Scope of
Acquittal Appeal is always narrow and limited. Learned advocate for appellant /
complainant could not satisfy the Court that judgment of the trial Court is
perverse or arbitrary. Hon’ble Supreme Court in the case of Zulfiqar
Ali v. Imtiaz and others (2019 SCMR 1315), 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. ”
12. For the above stated
reasons, while relying upon the above cited judgment of the Hon’ble Supreme
Court, I have no hesitation to hold
that this Criminal Acquittal Appeal is without merit and the same is dismissed.
J U D G
E
Abdul Basit