THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No.S-11 of 2021
Appellants: Muhammad Ayoub, Hashim, Qasim and Sharif through Mr. Javed Ahmed Soomro, Advocate.
Respondent: Siraj Ahmed through Mr. Ghulam Shabir Jatoi, Advocate
State: Through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General, Sindh.
Date of hearing: 03.11.2022
Date of Judgment: 03.11.2022
Date of Reasons: 04.11.2022
J U D G M E N T
AMJAD ALI SAHITO, J-. The appellants by way of instant Criminal Appeal have impugned Judgment dated 11.02.2021, passed by learned Additional Sessions Judge-II, Larkana in Sessions Case No.424 of 2017, (re-Siraj Ahmed v/s. Muhammad Ayoub and three others), emanated from Complaint under section 3 of the Illegal Dispossession Act, 2005 (hereinafter referred to as “the Act, 2005”), whereby the appellants have been convicted and sentenced for offence under sub-section (3) of Section 3 of the Act, 2005 to undergo R.I for period of one year with fine of Rs.50,000/- (Rupees Fifty Thousands only) each to be paid to the complainant, in default thereof they have to suffer S.I for three months more.
2. The facts in a nutshell are that complainant Siraj Ahmed Abbasi had purchased a Plot bearing Survey No.794, area measuring about 2500 square feet, situated in Muhalla Ghulam Asghar Channa Colony, Deh and Tapo Larkana, in the year 2012, on the consideration of Rs.50,000/- from Muzafar Ali Sangi, which was registered in the name of complainant. The complainant got constructed a residential house on the said plot and was residing there with his family. The complainant and his family went to Karachi and the above named accused No.1 to 4 unlawfully broke the locks and encroached upon the said property. The complainant on his return approached the Nekmard and such private Faisla was held, wherein the complainant after report from concerned Mukhtiarkar, was declared to be owner of the said property. Thereafter, the above named accused filed a Suit for Declaration, Permanent and Mandatory Injunction before the Court. Later-on the above named accused tried to make reconstruction over the disputed property. The complainant then filed instant criminal complaint with following prayer:
“It is prayed on behalf of the complainant that this complaint may kindly be entertained and reports be called from Mukhtiarkar Larkana about ownership of plot bearing Survey No.794, measuring 2500 square feet, situated in Ghulam Asghar Colony, Deh and Tapo Larkana and SHO concerned be directed to conduct enquiry and submit such report and complaint be brought on record, issue warrants for arrest of accused No.1 to 4 and after trial, restore the peaceful possession of plot to the complainant and award compensation to him and convict and sentence the accused in the interest of justice”.
3. After bringing the complaint on regular file, the learned trial Court framed the formal charge against appellants at Ex.2, to which they pleaded not guilty and claimed to be tried vide their pleas at Ex.2/A to D respectively.
4. The prosecution to prove its case, examined complainant Siraj Ahmed Abbasi at Exh.03, he produced registered sale deed at Exh.03/A; witnesses Tariq Abbasi and Javed Ali at Exh.04 & 05 respectively; official witnesses namely Mr. Niaz Ali Siyal, Mukhtiarkar, Taluka Larkana at Exh.06, he produced his report at Exh.06/A, SHO Khadim Hussain Magsi of P.S Hyderi was at Exh.07, he produced his report at Exh.07/A. Thereafter learned counsel for the complainant closed its side vide statement at Exh.08.
5. The appellants in their statements recorded under section 342 Cr.P.C. at Ex.09 to 12 respectively, denied the allegations leveled against them by the complainant by stating therein that they are innocent and prayed for mercy. However, accused Muhammad Sharif Jatoi produced the relevant record in support of his plea at Exh.12 Page 1 to 11 respectively. However, none of them examined themselves on oath nor led any evidence in their defence.
6. The learned trial Court on evaluation of evidence so produced by the prosecution convicted and sentenced the appellants as stated above.
7. It is contended by the learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant and the evidence which was adduced by the prosecution at trial being inconsistent and doubtful has been belied by learned trial Court without lawful justification; that appellants are neither land grabbers nor members of the Qabza Mafia, therefore, the provisions of Illegal Dispossession Act, 2005 are not applicable in the instant case; that the learned trial Court has also not considered the fact that the appellants were residing at the land in question since long and before the promulgation of Illegal Dispossession Act, 2005, as such provisions of the Act, 2005 are not applicable but the learned Trial Court ignored the same while passing impugned judgment; that learned trial Court has also not considered the material contradictions and inconsistencies in the evidence of the complainant and his witnesses and in presence of such material contradictions, conviction cannot be passed against the appellants; that the learned Trial Court has passed the impugned judgment in a hasty manner. He lastly prayed for acquittal of appellants in the interest of justice.
8. Conversely, learned counsel appearing for the complainant has contended that the appellants being members of Qabza Mafia have forcibly occupied the property in question of the complainant; that the evidence adduced by the prosecution is fully supported and there are no such major contradictions in the evidence of the complainant and P.Ws, therefore, the learned Trial Court has rightly awarded conviction and sentence to the appellants. He lastly prayed for dismissal of instant appeal.
9. Learned Deputy Prosecutor General appearing for the State by supporting the impugned judgment has also prayed for dismissal of the instant appeal.
10. I have heard the learned counsel for the appellants/accused, learned counsel for the complainant and the learned Deputy Prosecutor General for the State and perused the material available on record.
11. From perusal of record it appears that allegedly a plot bearing survey No.794, admeasuring about 2500 sq. ft was occupied by the appellants and complainant then filed Complaint for action against them under the provisions of the Act, 2005, which was allowed by the learned Trial Court vide Judgment dated 11.02.2021.
12. Apart from the above, before coming towards all scenario of the case, it is necessary here to pinpoint the deposition of Mukhtiarkar Taluka Larkana namely Mr. Niaz Ali Siyal at Ex.06 for the sake of convenience, who deposed in the manner as under:
“I received notice from the Court then I directed Tapedar concerned Beat to verify the revenue and submit such report. The Tapedar concerned verified the record and visited the site and then submitted such report. I prepared the report on basis of report of the Tapedar. As per record, entry No.5151 of village Form-II Deh Larkana pertains to plot No.34 measuring 2500 feet from S.No.794 of Deh Larkana. The said plot No.34 is in the name of Siraj Ahmed son of Abdul Qadir Abbasi as per revenue record, such mutation is available on record on basis of registered sale deed. I myself physically visited the disputed property. During my visit I found that now Muhammad Ayoub Jatoi is in possession of the said plot. I produce such report at Ex.6/A, and say that it is same and bears my signature.”
13. Likewise, perused the report of S.H.O concerned, who reiterated the same facts as narrated by the aforesaid Mukhtiarkar Taluka Larkana regarding already possession of the land in question. However, the complainant examined himself at Ex.03 and has deposed during his evidence that he is the owner of plot No.34 from S.No.794, admeasuring 2500 sq. ft. situated at Aqil Road, Larkana. He had purchased the above plot from Muzafar Ali Sangi in the year 2012 then started construction after possession, thereafter Ayoub Jatoi, Hashim Jatoi, Sharif Jatoi and Qasim Jatoi used to issue threats to him and also claimed ownership over the subject plot. Then accused approached to Assistant Commissioner, Larkana, who called the complainant as well as accused persons and issued such “Rupkari” in complainant’s favour. Accused approached to Ali Nawaz Luhur, where one private faisla was held, which was also decided in complainant’s favour. Then in the year 2016, the accused persons forcibly occupied the subject plot in his absence. After occupation the accused party filed a Civil Suit against the complainant in the Court of IInd Senior Civil Judge, Larkana and suit was also decreed in favour after demarcation of the subject property, accused demolished the construction and started their construction and managed bogus sale deed.
14. On the contrary, appellants in their statements under section 342 Cr.P.C. denied the allegations so leveled by the complainant; however, they neither examined themselves on oath nor led any evidence in their defence.
15. Moreover, the reports furnished by the Mukhtiarkar Taluka Larkana and S.H.O concerned obviously denote that the complainant has managed the whole story on flimsy ground in order to achieve his goal as, it has brought on record that the appellants have forcibly dispossessed the complainant and occupied the land in question, but record shows that the appellants are dwelling at the said plot since last many years, therefore, it may well be added that to maintain the conviction under section 3 of the Act, 2005, the complainant must establish either illegal possession by means of unauthorized entry into or upon disputed property [Section 3(1) of the Act, 2005] or by proving his forcible or wrongful possession [Section 3(3) of the Act, 2005]. In either situation the complainant must establish to be falling within the meaning of ‘owner’ or ‘occupier’ of the disputed property and to have been forcibly or wrongfully removed but when admittedly the report(s), on basis whereof, the cognizance was taken, nowhere indicated the appellants have forcibly dispossessed the complainant then no conviction legally could sustain under section 3 of the Act, 2005. Moreover, the preamble of this Act is only to protect the lawful owners and occupiers from their illegal or forcible dispossession and prevent them from the land grabbers/qabza group or land mafia. In the instant case, there is the question in respect of the examination of the title of the parties. It is pointed out that it is sole function of the Civil Court to give an authoritative decision with regard to the title of the property and the Criminal Court is not competent to give any finding qua title of the property. In such like cases, Criminal Court is simply required to examine the material available before it to form an opinion as to whether a prima facie case is made out for holding that the person who has complained about his dispossession was in lawful possession or owner because as stated above the words used in Section 3 of the Act, 2005 are “owner” and “occupier” of the property. The word occupier has been defined in Section 2(c) of the Act, 2005 viz. “occupier” means the person who is in lawful possession of a property; the word “owner” is defined in section 2(d) of the Act, 2005 “owner” means the person who owns the property at the time of his dispossession, otherwise than through a process of law; and the word property has been defined in section 2(e) of the Act, 2005, as “property” means immovable property. Thus, to attract the provisions of section 3 of the Act, 2005, the Court is required to examine as to whether the property was an immovable property; secondly that the person was the owner of the property or in its lawful possession. Thirdly, that the accused has entered into or upon the property unlawfully. Fourthly, what such entry is with the intention to dispossess i.e. ouster, evict or deriving out of possession against the will of the person in actual possession, or to grab i.e. capture, seize suddenly, take greedily or unfairly, or to control i.e. to exercise power of influence over, regulate or govern or relates to authority over what is not in one’s physical possession or to occupy i.e. holding possession, reside in or something. The definitions of the above words have been drawn from Black’s Law Dictionary and Concise Oxford Dictionary. Though all the four words carry somewhat similar meaning in general, but individually applicable to different situations, times, places and circumstances, therefore, they cannot be given one and same meaning as by doing that one or more words become redundant, which cannot be attributed to the Legislature.
16. To examine the question of title in respect of the property, as already pointed out, the Court has to simply form an opinion as to whether prima facie any party is coming within the ambit of definition mentioned in section 3 of the Act, 2005 and if the Court forms such opinion from the material placed before it, then the Court can proceed with the matter or otherwise, as the case may be.
17. The up-shot of above discussion, the conviction and sentence recorded against the appellants by way of impugned Judgment cannot be sustained, it was set aside vide order dated 03.11.2022. Consequently, the appellants were acquitted of the offence for which they were charged, tried and convicted by the learned Trial Court. They were present on bail, their bail bonds were cancelled and surety was discharged. Office is directed to return the surety papers to the Surety after proper verification and identification as per rules and these are the reasons of short order dated 03.11.2022.
18. The instant Criminal Appeal is disposed of accordingly.
JUDGE
Manzoor