IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No. 179 of 2021

Appellant: Nazim Ali Panhwar through Mr. Haad A.M. Paggawala advocate

Respondent: The State through Mr. Khadim Hussain, Additional Prosecutor General Sindh

Complainant: Muhammad Qaiser Mirza through Mr. Dur Muhammad Shah advocate

Date of hearing: 10.11.2022

Date of Judgment: 10.11.2022

J U D G M E N T

IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant appeal are that the private respondent claiming to be owner of the subject property filed a direct complaint for prosecution of the appellant under provision of Illegal Dispossession Act, 2005, it was brought on record by learned trial Court, after inquiry conducted by SIP Muhammad Arif of PS Karachi Industrial Area; the appellant denied the charge and prosecution to prove it, examined the private respondent and then closed its side; the appellant during course of his examination under Section 342 Cr.P.C, denied the prosecution’s allegation by pleading innocence by stating that he is in possession of the subject property since 2006 and the private respondent has never been in its possession. On conclusion of trial, the appellant was sentenced to undergo simple imprisonment for 06 months and to pay fine of Rs.100,000/- and in default whereof to undergo imprisonment for 01 month, without specifying the penal section for which the appellant was convicted by learned Xth-Additional Sessions Judge, Karachi East vide judgment dated 20.03.2021, which is impugned by the appellant before this Court by preferring the instant appeal.

2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the private respondent and convicted by learned trial Court on the basis of insufficient evidence, therefore, he is entitled to his acquittal.

3. Learned Addl. P.G for the state and learned counsel for the complainant by supporting the impugned judgment have sought for dismissal of the instant appeal by contending that the private respondent has been able to prove its case against the appellant beyond shadow of doubt.

4. Heard arguments and perused the record.

5. Admittedly, the cognizance of the offence has been taken by learned trial Court on the basis of inquiry report furnished by SIP Muhammad Arif of PS Karachi Industrial Area. Neither that report is brought on record nor that SIP has been examined by learned trial Court. In that way, the appellant has been prejudiced in his defence seriously. No penal section for which the appellant is convicted is specified in the impugned judgment, which is contrary to the mandate contained by Section 367 Cr.P.C, which prescribes that every judgment should specify the offence/penal section, for which the accused is convicted and sentenced. In these circumstances, the impugned judgment could not be sustained, it is set aside, consequently, the matter is remanded to learned trial Court to be proceeded further in accordance with law.

6. The appellant may join the trial by furnishing fresh surety in the sum of Rs.20,000/- and P.R bond in the like amount to the satisfaction of learned trial Court.

7. The instant appeal is disposed of accordingly.

JUDGE