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