IN THE HIGH COURT OF SINDH,BENCH AT SUKKUR
Criminal Appeal No. S-56 of 2019
Appellant: Ehsan @ Ehsanullah, through Mr. Mehfooz Ahmed Awan, Advocate.
Respondent
No.1: Mst. Gulzar Begum
Solangi through Mr. Wajid Ali Vaseer,
advocate
The State: Through Mr. Khalil
Ahmed Maitelo,
Deputy
Prosecutor General.
Date
of hearing: 07.03.2022.
Date
of decision: 18.04.2022
J U D G M E N T
ZULFIQAR ALI SANGI, J:- Through this appeal, appellant Ehsan
@ Ehsanullah, has challenged the Judgment dated 19.04.2019,
passed by learned Sessions Judge, Sukkur, in IDA Complaint Sessions Case No.39/2016
re-“Mst. Gulzar Begum v. Ehsan @ Ehsanullah and others”, under Section 3, 4 & 7 of Illegal
Dispossession Act, 2005, whereby the appellant was convicted for the offence u/s 3(2)
of Illegal Dispossession Act, 2005 and sentenced to suffer R.I for three years
and to pay fine of Rs.10,000/- and so also to pay amount of Rs. 20,000/- to be
paid to complainant as compensation as provided under Section 544-A Cr.P.C, in
case of default he would suffer simple imprisonment for two (2) months more.
However, benefit of Section 382(b) Cr.P.C was extended to him.
2. Succinctly the facts of the prosecution case
are that complainant Mst.
Gulzar Begum was residing with her children alongwith her husband Arbab Ali Solangi in the disputed
house situated near Kashana Muhammad Ali, Adam Shah
Colony, Sukkur but after the death of her husband, on 03.2.2016 in the night at
2300 hours, she was informed by neighbors that accused Nisar (the
brother of complainant’s husband) and Abdul Rehman (husband
of sister of complainant’s husband) have sold out the disputed house to accused
Ehsan Chachar and have also
robbed 20 Tolla Gold and 20 sewed and un-sewed
clothes. The complainant came back and found the outer door of the house locked
with different lock. Due to night time she came back to her daughter's house
and on 04.2.2016 she approached to P.S “A” Section, Sukkur for registration of
the complaint. She also approached P.S Garden but could not succeed and police
did not receive her complaint and then she filed above complaint by stating
that she and her children are exclusive owners of the disputed house and the
accused have illegally dispossessed her by selling the same, for which, they
had no authority.
3. On the above
complaint, the reports were called from Mukhtiarkar Revenue, Sukkur and SHO
Police Station “A” Section, Sukkur and thereafter the trial court took
cognizance of offence. A formal charge was framed against the accused
to which he pleaded not guilty and claimed for trial.
4. To prove
the charge against the appellant complainant Mst. Gulzar Begum examined herself
at Ex.10, she produced original payment of water charges, Slip dated 20.1.2018
issued by Municipal Corporation, Sukkur Original Sui Gas Bill for September
2018 in the name of her husband Arbab Ali, original electricity bill for the
month of December, 2018 in the name of Arbab Ali at Ex. 10-A to 10-C. The Photostat copy of list of joint survey of Municipal and Railway
Land at Adam Shah Colony, Katchi Abadi.
She has also examined PW Abdul Rasheed at Ex.11 and the side of complainant was
closed vide statement dated 19.5.2018. The case was then transferred to the
Session Judge Sukkur vide order dated 12.11.2018 passed by this court in Crl. Transfer application No.S-118 of 2018.
5. The
statement of accused was recorded under Section 342 Cr.P.C at Ex.13, wherein he
denied the allegations of the complainant and claimed himself to be innocent.
However, neither he examined himself on oath nor any witness in his defence.
Learned trial court after hearing the parties convicted and sentenced the
appellant as stated above.
6. Learned counsel for the
appellant has contended that the prosecution has failed to prove its case
beyond reasonable doubt; that learned trial Court has failed to properly assess
the evidence brought on record by the prosecution; that the impugned judgment
is based on surmises and conjunctures; that the complainant is neither lawful
owner nor the lawful occupier of the said property; that the impugned Judgment
is against the law, facts, principles of natural justice and equity; that
learned trial court has erred in convicting the appellant by not taking into
consideration the entire material and thus the impugned Judgment is liable to
be set-aside. He finally prayed that by extending benefit of doubt, the
appellant may be acquitted.
7. Learned Counsel representing the
Respondent No.1 (Complainant), at the very outset, contended that the property
in dispute was occupied by the Respondent No.1 alongwith her husband and
admittedly utility bills for the said property are also in the name of her
husband Arbab Ali. He further contended that the disputed property is situated
in Katchi Abadi and the
joint survey of the area where the suit property exits was conducted and in
this regard attested copy was produced by the Respondent wherein name of her
husband is mentioned at serial No.9. It is further argued by learned Counsel
that when Respondent No.1 went to her daughter’s house, appellant had forcibly
and illegally occupied the house of Respondent No.1 and she approached the
concerned PS but no action was taken and the Respondent, being compelled,
knocked the door of Court for seeking possession of disputed house by filing
complaint under Illegal Dispossession Act, 2005. He lastly submitted that the
learned trial Court has rightly convicted the appellant and passed the
well-reasoned judgment, which does not require any interference and is liable
to maintained.
8. Learned DPG appearing for the
state has supported the impugned judgment and further contended that the
prosecution has proved its case against the appellant beyond any reasonable
shadow of doubt by producing oral as well as documentary evidence; that the
learned trial court has rightly convicted the appellant and he does not deserve
any leniency; that there appears no illegality or irregularity in the impugned
judgment which is well reasoned and does not require any interference of this
court.
9. I have heard learned counsel for
the parties and have gone through the material available on record with their
able assistance.
10. On
reassessment of the entire evidence produced by the complainant party and
documents so produced / exhibited in evidence, reflects that the complainant
herself was an encroacher and not a lawful occupier of the dispute house. The
report of joint survey of Railway and Municipal land also reflects that it was not
the property of complainant and the same was either property of Railway or
Municipal. Such even otherwise is not clear from the report exhibited by the
complainant. The intention of legislature by promulgating the Illegal
Dispossession Act 2005 was to protect the lawful
owners and occupiers of immovable property from their illegal and forcible
dispossession therefrom by the property grabbers. There is no title in the name
of complainant or her husband and she admittedly has occupied the land of
Railway or Municipal, therefore such act cannot be
protected.
11. The report of Mukhtiarkar vide
letter No.212 dated 17.8.2016 and the report of SHO Police Station “A” Section
vide letter No. 1615 dated 22.8.2016 are available on record. Mukhtiarkar Revenue City Sukkur in his report submitted
that property in question is built up on Katcha Patta only on possession basis but there is no any record
of right of the said property. He has reported that the said property remained
in possession of following persons:
1) Arbab Ali S/o
Peer Bux (The husband of Complainant)
2) Nasir S/o
Peer Bux
3) Shaman S/o
Peer Bux
4) Abdul Rehman S/o Shahdad Khan Sandilo (The brother-in-law of the husband of Complainant)
12. The
Mukhtiarkar further reported that the suit property
at present is in deplorable/ damaged condition there is boundary wall with old
construction. He also reported that Mst. Gulzar Begum after three days of death
of her husband Arbab Ali had gone to the house of her
daughter and then she never remained in possession of the disputed house since
about 10/12 years but she was visiting in day hours after 5/6 months in the
house of Nasir who was living in the suit property. He further reported that
Nasir Ali Solangi, nephew of husband of complainant Mst. Gulzar Begum sold out
the suit property to one Sanaullah Chachar in sum of Rs.19,00,000/- (rupees nineteen lacs) and handed over its possession to Sanaullah
S/o Muhammad lshaque on 30.01.2016. Mukhtiarkar has
denied the allegations of Illegal Dispossession of the complainant.
13 SHO
Police Station “A” Section in his report 22.8.2016 mentioned that the disputed
property is Katcha Patta
not
entered in the record of right but Utility Bills
of said disputed
property are in the name of deceased Arbab Ali
(husband of complainant). SHO at the end of his report opined that proposed
accused Nasir Solangi and
Abdul Rehman alias Gulsher Sandilo are in joint possession over the disputed property.
SHO also recorded statements of complainant Mst. Gulzar Begum, Abdul Rasheed,
Sarwar Javed both by case Bhatti, Ehsanullah
Chachar, Muhammad Yousif Shaikh and so also submitted the Photostat copy of
agreement of sale in respect of the disputed property dated 30.1.2016 allegedly
executed by Muhammad Nasir Solangi in favour of Sanaullah
S/o Muhammad Ishaq Chachar (brother of present
accused Ehsan Chachar.
14. From the above discussion it
establishes that the complainant
herself is an encroacher and not a lawful owner of the disputed house as there
is no title document in the name of complainant or her husband and it is either
the property of Railway or Municipal. Further the property in question was not
exclusively in possession of
complainant’s husband Arbab Ali, as besides
her husband, Nisar,
Shaman and Abdul Rehman who are relatives of her
husband were also residing in the said property while nothing has come on
record that appellant has forcibly dispossessed the complainant or occupied the
subject property which is also evident from the evidence of witness Abdul Rasheed
who admitted in his cross-examination that “it
is correct to suggest that I had not seen any of the accused including Ehsan Chachr at the time of
dispossessing to complaint or occupying upon his husband’s house.” The report of Mukhtiarkar
also shows that complainant Mst. Gulzar was neither
residing in the said property since about last 10-12 years nor she was
illegally and forcibly dispossessed by any person and the proposed
accused/appellant Ehsan has no concerned with the
said property nor he is in its possession. It is established law that the
prosecution is duty bound to establish the case against the accused persons and
weak defence of accused or taking more than one defence is no ground to shift
burden of proving the case upon the accused. Therefore in my view the
complainant has failed to establish her case against the appellant. Resultantly,
the Appeal is allowed, the impugned Judgment is set-aside and appellant is
acquitted of the charge. Appellant is present on bail, his bail bond stands
cancelled and surety discharged.
15. The appeal is disposed of in the
above terms.
J U D G E
Suleman Khan/PA