HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.565 of 2018

Appellant              :         Khalid  son  of  Elahi Dad, through M/s. Atir

Aqeel Ansari, Muhammad Ajmal Khan & Habib-ur-Rehman Jiskani, Advocates.

Respondent          :         The  State   through   Mr.   Abrar   Ali  Khichi,

Additional Prosecutor General, Sindh.

Date of hearing     :        30.10.2019

Date of Judgment :        30.10.2019

J U D G M E N T

Abdul Maalik Gaddi, J.– Through this jail appeal, the appellant has assailed the legality and propriety of the judgment dated 28.09.2018 passed by the learned VIth Additional District and Sessions Judge, Karachi (East) in Illegal Dispossession Complaint No.113 of 2017 (re: Anwar Shah vs. Khalid), filed by the complainant Anwar Shah, whereby the learned trial Court after hearing the parties, convicted and sentenced the appellant as stated in point No.2 of the impugned judgment. For the sake of convenience, it would be proper to reproduce the findings of said point, which reads as under:-

“POINT NO.2:

          In view of my finding on point No.1, the complainant has proved his case against the accused. I held the accused Khalid guilty for the charge U/S 3(1) & (2) and he is convicted and sentenced U/S 3(1) & (2)  of Illegal Dispossession Act, 2005 to suffer three years R.I and to pay fine of Rs.10,000/- (Ten Thousand), in case of default of payment of fine the accused shall undergo Fifteen days as simple imprisonment. The accused is directed to pay the compensation to the complainant amount of Rs.100,000/- (One Lac) as provided under section 544-A, Cr.P.C. in default thereof, to further undergo two month’s simple imprisonment. The accused Khalid is present on bail; he is taken in to custody and remanded to Central Prison, Karachi, to serve out the sentence awarded to him. The bail bonds of the accused are hereby cancelled and surety is discharged. The possession of property Plot bearing No.AK-513, admeasuring 160 square yards, located at Sector 6/B, Mehran Town, Korangi Industrial Area, Karachi, is restored to the complainant/owner as provided U/s 8 of the Illegal Dispossession Act. The Nazir of Session Court Karachi East is authorized to hand over the possession of the property to the complainant/owner of the property and put the complainant/owner in possession within fifteen days. He is also authorized to get assistance from the concerned SHO of police station in restoration and delivering the possession of property to the owner.”

2.       Facts need not to be reiterated here as the same have been elaborately mentioned in the memo of instant criminal jail appeal as well as in the impugned judgment.

3.       Today this appeal is fixed for arguments. Learned Counsel for the appellant during the course of arguments submits that on merits, though the appellant has a good case for his acquittal and possession of the plot in question has already been handed over by the trial Court to complainant through Nazir of the trial Court. They further submit that appellant is in young age and was remained behind the bars for a sufficient time as per Jail Roll including remissions i.e. one (1) year, six (6) months and (17) seventeen days; that the appellant belongs to very poor family and only source for earnings of his family; that the appellant has already faced the agony of protracted trial since 2017, therefore, according to them, they would be satisfied and shall not press the instant appeal on merits, if this Court may consider the period of his detentions already undergone and reduce the sentence as well as the fine/compensation may also be remitted.

4.       Learned Additional Prosecutor General, Sindh, appearing for the State has candidly conceded the proposal on the ground that the appellant was remained in jail for a sufficient time and he has no past criminal history.

5.       Arguments heard and record perused.

6.       On perusal of Jail Roll, available on record, it reveals that appellant was arrested and sent to jail on 28.09.2018, and since then he is in jail in this case. Jail roll submitted by Senior Superintendent, Central Prison, Karachi on record, reveals that appellant is in jail for the last about one (1) year, six (6) months and (17) seventeen days including remissions. Following the dictum laid down in a case of Niazuddin vs. The State reported in 2007 SCMR 206, the Hon’ble Supreme Court of Pakistan was pleased to reduce the sentence from imprisonment of ten (10) years to six (06) years. In the case of Gul Naseeb vs. The State reported in 2008 SCMR 670, the Hon’ble Supreme Court of Pakistan has also reduced the sentence from imprisonment for life to ten (10) years.

7.       It is also informed by the learned Additional Prosecutor General, Sindh that the possession of plot in question has already been handed over to the complainant through the Nazir of trial Court. In such circumstances, in my opinion the appellant has suffered adequate punishment and the ends of justice has been satisfied. The appellant has also been sufficiently punished. He is in young age, therefore, he is given a chance for his rehabilitation. Accordingly, the appeal against conviction is dismissed as not pressed and sentences awarded to the appellant in this case is altered into imprisonment, which appellant has already undergone. However, fine and compensation are also remitted. Appellant is directed to be released forthwith, if not required in any other case.

8.       This criminal jail appeal stands dismissed with the above modification along with listed applications, if any.

JUDGE

Faizan/PA*