IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Crl. Acqtl. Appeal No.S-69 of 2020.
Appellant Aijaz Ahmed Bhatti present in person.
Respondents Muhammad Uris & others,
Mr. Muhammad Saleem Mangi, Advocate along with
Respondent No.2 Mushtaque Ahmed(on bail).
Mr. Ali Anwar Kandhro, Addl. Prosecutor General for
the State.
Date of hearing 09.02.2024.
Date of judgment 12.02.2024.
Date of Announcement 15.02.2024.
J U D G M E N T
MUHAMMAD SALEEM JESSAR, J.- This acquittal appeal has been filed by appellant/complainant Aijaz Ahmed Bhatti against the judgment dated 20.11.2020, passed by learned IV-Additional Sessions Judge, Larkana, in Sessions Case No.32 of 2017, re-Aijaz Ahmed Bhatti v. Muhammad Uris & another, being outcome of complainant under Section 3, 4 & 5 of Illegal Dispossession Act, 2005, whereby the respondents No.1 and 2, namely, 1. Muhammad Uris son of Nabi Bux, and 2. Mushtaque Ahmed son of Muhammad Uris, both by caste Meerani, were acquitted of the charge.
2. The facts relevant to instant appeal against acquittal are that late father of complainant was owner of two houses vide record of permanent transfer, bearing CSS0S/23 age CSC-S-1/112, where he along with his family was residing. After sometime, some of family members shifted away to Larkana from Naudero and after death of his father, his youngest brother namely late Ayaz Ali was looking after the said houses. The respondent No.1 was student of complainant’s father and also known to complainant was residing adjacent to two houses, therefore, he requested to look-after from outside the vacant/locked houses in absence of complainant, later on the respondents requested to sell out said houses to them but complainant refused, on which they became annoyed and in the first week of May, 2015 when complainant visited the houses in question, he found that same were illegally and forcibly occupied by respondents/accused without any lawful authority and knowledge of complainant, so also the internal boundaries of houses were destroyed/changed, one portion is cattle farm and new gates were also affixed there. During visit on enquiry the respondents along with their accomplices came out with weapons and threatened the complainant of dire consequences. Prayer is sought for getting restoration of residential houses Nos.128 & 129 situated at Ward “A” Naudero Town, Taluka Ratodero from respondents to the complainant being its lawful owner.
3. After preliminary proceedings the complaint was brought on record and in response to the process the respondents/accused put appearance. They pleaded ‘not guilty’ to the charge and were accordingly tried, wherein the complainant examined himself and also examined three official witnesses, produced documents and other artifacts in evidence. The respondents in their 342, Cr.P.C. statements pleaded innocence. On conclusion of trial, the respondents were acquitted by the learned trial Court vide judgment dated 20.11.2020, which the appellant/complainant has challenged by filing instant appeal against acquittal.
4. It is relevant to mention here that during pendency of instant acquittal appeal, the respondent No.1 Muhammad Urs had expired and such intimation was given to the Court on 21.11.2022.
5. The appellant in person submits sets of documents through his two separate statements of today’s date; whereas compliance report has been submitted on behalf of SSP, Larkana, which are taken on record and copies whereof are provided to other sides.
6. The appellant submitted that the disputed property was owned by his father late Abdul Razak Bhatti, who was a retired Head Master and died on 14.3.1989. Per his knowledge being his son, the property in dispute was never sold out by his father to any one; however, the respondents/accused had encroached upon the same forcibly by claiming that it was sold out to them by late Abdul Razak Bhatti in his lifetime. He further submitted that entry allegedly shown was fake and no registered sale deed was executed by his father; however, the sale, as claimed by the respondents/accused, was made through oral statement, that too is illegal and cannot be deemed to be a genuine; hence, he submitted that trial court has not applied its judicious mind and has not appreciated the evidence as well as other material placed on record. He, therefore, prayed that by granting instant appeal, impugned judgment may be set aside and the directions may be given to the trial Court to retry the case. As far contention raised by learned Counsel for the respondents/accused that civil suit filed by the appellant is pending adjudication, submitted that there is no legal bar as both remedies can be availed and can run side by side. In support of his contentions, he relied upon the cases reported as Nabi Bux v. The State and others (2011 PCr.LJ 1300), Shafi Muhammad v. The State and others (PLD 2008 Karachi 480), Mumtaz Hussain v. Dr. Nasir Khan and others (2010 SCMR 1254), Muhammad Bakhsh v. Additional Sessions Judge and others (2010 PCr.LJ 268), Dr. Baber Yaqoob Sheikh v. Haris Hafeez and 2 others (2014 YLR 2176) and case of Muhammad Tariq and others v. The State (2000 PCr.LJ 47).
7. Learned Addl. P.G. opposed the appeal and submitted that trial Court has rightly decided the case of appellant; hence, in view of findings of trial Court the judgment impugned does not suffer from any illegality or infirmity.
8. Mr. Muhammad Saleem Mangi, learned Counsel for respondent No.2, submitted that respondent No.1 Muhammad Urs has expired; however, the respondent No.2 is in lawful possession of the property in dispute which he had purchased from the father of appellant in the year 1990. He further submitted that the transaction was made through oral statement and not through any registered document. He further submitted that the suit filed by appellant himself being F.C. Suit No.73/2021 re-Aijaz Ahmed v. Mushtaque & others, is pending adjudication before the Court of 1st Senior Civil Judge, Larkano; hence, the appeal in hand merits no consideration. In support of his contentions, he placed reliance upon the cases reported as 2013 Muhammad Alim v. Muhammad Younis (2013 MLD 1245 [Sindh]) and Muhammad Younas v. Ghazanfar Abbas and 12 others (2017 YLR 2229), and prayed for dismissal of instant acquittal appeal.
9. I have considered arguments of the appellant in person as well as learned Counsel for respondent No.2 and learned Addl. P.G. for the State and have perused the entire record of the case.
10. From perusal of record it appears that the appellant in his evidence produced several documents, showing ownership of his father late Abdul Razak Bhatti over the property in question, which includes the PTO, entry No.76 of Deh Form-II, order dated 23.02.2016 of Deputy Commissioner, Larkana, entry No.162 of Deh Form-II, Death Certificate of his father and these documents were duly exhibited by him in his evidence; however, the impugned judgment passed by the learned trial Court, on perusal, would reflect that the learned trial Court has not offered any discussion and has not recorded it’s findings in respect of these documents placed on record. The evidence of the appellant supported by the documentary evidence adduced by the appellant needed to be discussed in detail. The trial Court appears to have based acquittal in favour of respondents/accused, mainly on the points that the date and time of illegal dispossession of appellant at the hands of respondents/accused were not mentioned in the complaint, and further on the basis of so-called admission of appellant/complainant regarding the fact that Mukhtiarkar & SHO concerned have reported that accused Mushtaque has been residing in the property in question since last 25/30 years. Such findings of the trial Court cannot alone be considered sufficient to record acquittal in favour of an accused charged under the allegation of illegally dispossessing someone from his lawful property.
11. No doubt, the law is settled that there is double presumption of innocence in favour of an accused, who had secured acquittal; one, that every accused shall be presumed to be innocent unless proved to be guilty and; the other, that the competent Court of law had adjudged him ‘not guilty’; however, it may be observed here with all respect and regards on my command to the verdicts of the Apex Court that the findings of acquittal must be based on the material placed before the Court dealing with the trial of the case. From perusal of the impugned judgment, it appears that the evidence of complainant and three official witnesses examined at trial has not been discussed fully by the trial Court while recording acquittal findings.
12. Upshot of above discussion is that the findings of acquittal recorded by the learned trial Court in the impugned judgment dated 20.11.2020 are not based on proper appreciation of the evidence and other material brought on record by the complainant/appellant, therefore, the impugned judgment is set aside the matter is remanded to the trial Court. Since the appellant has submitted certain documents on record and in case the appellant or the respondents may intend to adduce more documents before the trial Court, same shall be permitted to be exhibited by recording the examination-in-chief of the appellant/complainant afresh and providing full opportunity of cross-examination to other side and then the trial Court shall decide the fate of case after fully discussing each and every aspect of the case as well as the evidence and other material placed on record by the parties, in the light of dicta laid down by the Hon’ble Supreme Court of Pakistan in the case of Gulshan Bibi v. Muhammad Sadiq (PLD 2016 SC-769). Further, the subject case is made over to the Court of 5th Additional Sessions Judge, Larkana, for decision on merits in accordance with law, keeping in view the observations recorded hereinabove.
JUDGE
Qazi Tahir PA/*