THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.61 of 2023

Present: Mr. Justice Shamsuddin Abbasi

Appellant : Capt. Syed Muhammad Aslam in person

Respondents : Abdul Wahid Munshi Khan, respondent No.1, Tariq Aziz, respondent No.2 & Sabir Ali, respondent No.4 through M/s Raja Basantani and Shamsuddin Bhayo, advocates

State through Mr. Zahoor Shah, Addl: P.G.

Date of Hearing : 14.05.2025

Date of decision : 19.05.2025

JUDGMENT

Shamsuddin Abbasi, J.- Capt. S. M. Aslam filled Illegal Dispossession Complaint No.90/2012 against the respondents/accused and after full dressed trial, respondents/accused were acquitted of the charge vide judgment dated 08.05.2017. The appellant instead of filing criminal acquittal appeal he filed criminal revision application before this Court and this Court dismissed the said criminal revision application on the point of barred by time. Appellant preferred Criminal Petition No.57-K/2019 before Supreme Court of Pakistan and the same was decided by Supreme Court of Pakistan vide order dated 21.01.2022 and Criminal Revision was converted into criminal acquittal appeal by imposing cost Rs.10,000/- to be deposited in any charity and the case was remanded back to this Court with direction to decide this acquittal appeal expeditiously as possible.

2. Notices were issued to the respondents as well as Prosecutor General Sindh. The respondents effected appearance and have filed their objections.

3. Appellant appearing in person has pointed out illegality committed by learned trial Court in its judgment dated 08.05.2017, whereby the trial Court has mentioned facts reproduced below:

“As per complaint it is the case of complainant that the complainant is owner of the property bearing Quarter No44/1-4, Area 3-B, measuring 80 square yards situated at Landhi Township Karachi by virtue of registered Sale Deed dated 21.10.2013, MR Roll No.81710/8945 dated 20.11.2013.”

4. Appellant submits that trial Court has passed erroneous judgment by mentioning above detail of property, which are not involved in this case, therefore, the case may be remanded back to the trial Court to decide the same afresh, after hearing the parties; that his case would not fall within the meaning of double jeopardy and he has established his case through evidence.

5. On the other hand, learned counsel for respondents raised objection on the proposal for the reason that this is a clear cut case of double jeopardy as respondent No.1 after full dressed trial was acquitted of the charge in FIR No.463/2010 of PS Mobina Town, under section 408, 448, 420, 506, 34 PPC by the competent Court of law vide judgment dated 07.02.2017 and the appellant has filed Criminal Acquittal Appeal against the respondent No.1 before this Court and this Court vide order dated 11.02.2019 has also maintained the acquittal order, passed by learned trial Court. They further submit that learned trial Court has passed judgment in accordance with law and did not commit any illegality or infirmity and this is not a case of misreading and non-reading.

6. Learned Additional Prosecutor General Sindh supported the impugned judgment on the ground that impugned judgment does not show any misreading and non-reading.

7. Heard the appellant in person, learned counsel for respondents as well as Additional Prosecutor General Sindh and perused the material available on record.

8. I have gone through the impugned judgment and do not find out any illegality or infirmity committed by learned trial Court. The relevant portion of the judgment is reproduced as under:

“As per complaint it is the case of complainant that the complainant is owner of the property bearing quarter No.444, Area 3-B, measuring 80 square yards situated at Landhi Township Karachi by virtue of Registered Sale Deed dated 21.10.2013, MF Roll No. 81710/8945 dated 20.11.2013. After registration of sale deed the complainant obtained mutation order of property from KMC/KDA. The complainant also obtained building plan in respect of property for reconstruction of double story building on the site of the property from KBCA and he was in physical possession of said plot from the date of purchase. Previously a 30 feet side road of his plot was illegally encroached by land grabber Abdul Ghaffar, against whom he filed complaints at different forums and ultimately filed Civil Suit No.504/2006 for damages of Rs.50 Million, but during pendency of said suit Abdul Ghaffar died and encroachment of 30 feet road was cleared, thereafter the owner of corner Plot No.SB-12, namely, Abdul Wahid Munshi Khan grabbed and illegally dispossessed the complainant from his plot and made an illegal 20 feet road over the plot of complainant and on its front in collusion with and personal involvement of respondent/accused No.2 and 3 and thereafter the respondent/accused Abdul Wahid Munshi Khan got an illegal lay out plan approved, thereby converting illegally plot No.SB-12 into a corner plot and illegally shifting the actual leased location of the complainant's plot to previously encroached 30 feet side road, in collusion with respondent/accused No. 2 and 3, which was directed to be cleared by the Ombudsman of Sindh Karachi as per decision dated 27.04.2004 and as a result of said illegal approval of layout plan and illegal amalgamation plan the actual demarcation and boundaries of plot No.SB-11 were illegally changed, but the complainant has contradicted his own version in his examination-in-chief by stating that according to site plan his plot was surrounded by 30 feet wide road of west, plot No. B-12 on east, 30 feet wide road on south and on the north it was surrounded by turning road, which was converted into extra land allotted to him, as such total area of his plot became 275 square yards and as soon as the encroachment by Abdul Ghaffar was cleared in right side of east, the owner of plot No.SB-12 illegally occupied his plot on 01.05.2008, and the respondent/accused No.1 constructed 20 feet wide road over his plot and on the front extra land in collusion with ACP Sabir All. As per site plan produced as Ex.4/C the plot of complainant SB-11 is surrounded by 30 feet wide road on west, plot No.SB-12 in East, 30 feet wide road on south and 100 feet wide proposed Rail Rapid Transit, but according to complainant the proposal of 100 feet wide Rail Rapid Transit was dropped and was converted into extra land, which was allotted to complainant, but throughout his evidence, the complainant has failed to produce any allotment order of such extra land. Moreover as per evidence of complainant the respondent/accused No.1, who is owner of adjacent plot No.SB-12 illegally occupied his plot on 01.05.2008 and constructed 20 feet wide road on his plot and on the front of his extra land. The complainant has further stated that the respondent/accused No.1 Abdul Wahid Munshi Khan in collusion with respondents/accused No.2 and 3 got an illegal layout plan approved, thereby illegally changing the original approved layout plan of the society and illegally converting the adjacent plot No.SB-12 into a corner plot, but the complainant has failed to bring on record any iota of evidence to show the collusion or fraud on the part of respondent/accused No. 2 and 3 as allegedly. The complainant also failed to show that he has challenged the so called changed layout plan of the society before any competent civil court to gel it declared illegal. On the other hand the witness Muhammad Irfan son of Muhammad Subhan of complainant examined at Ex. 5 admitted in his cross examination that there is an open road on plot No.SB-11 and the same is used by general public/passersby in the locality to cross the same, meaning thereby the plot No. SB-11 of complainant is lying vacant and is being used as an open road by the general public and passersby of the locality.

Furthermore, on the same set of facts the present, complainant had lodged an FIR No. 463/2010 U/S 447/448/420/506-B PPC at PS Mubina Town with the same allegation that the respondent/accused No.1 illegally constructed road on plot of complainant in order to make his plot as corner plot. The said case was proceeded and respective evidence of parties was recorded and ultimately the respondent/accused No.1 was acquitted vide judgment dated 07.02.2017 passed by learned XXI Judicial Magistrate Karachi East (produced as Ex 13/B), as the complainant failed to prove his allegation in the said case. Later on the complainant filed the instant complaint with the same allegation, which he had failed to prove in Criminal Case No.2967/2010, arising out of FIR No.463/2010 U/S 447/448/420/506-B PPC at PS Mubeena Town. Therefore the mala fide of complainant is very much apparent from the record, as once he failed to prove his case in the above criminal case he filed the instant criminal complaint with the same allegation against the respondents/accused, which is not warranted under the law.

Moreover respondents/accused No.2 has produced photographs of plot in question as Ex. 14 /A, 14/B, 14/C, 14/D, 14/E, 14/F and 14/G, which have not been denied by the complainant and according to said photographs plot No.SB-11 is shown as lying vacant and on its eastern side plot No.SB-12 is shown under construction, and on its western side one Madarsa is situated, whereas northern and southern side of plot No.SB-11 is shown as open; as such the plot of complainant does not seem to have been illegally occupied by the respondents. Moreover the allegation of complainant with regard to changing of layout plan of the society in favour of respondent/accused No. 1 appears to be a civil dispute, for which he has not approached any competent civil court. Hence for the forgoing reasons and in view of evidence that has come on record I am of the humble view that the complainant has failed to prove that the respondents/accused have illegally occupied and dispossessed the complainant from his Plot No.SB-11, as alleged in the complaint Therefore this point is answered as not proved.

9. From perusal of impugned judgment, I do not see any irregularity or infirmity committed by learned trial Court while passing the impugned order. Apparently, no case of misreading and non-reading has been made out. It is a matter of record that appellant/complainant lodged FIR No.463/2010 at P.S. Mubeena Town under sections 447, 448, 420, 506-B, PPC against respondent No.1 (Abdul Wahid Munshi) on the same set of allegations and respondent No.1 after full-dressed trial was acquitted by learned trial Court vide judgment dated 07.02.2017. Appellant preferred appeal against acquittal before this Court and this Court has maintained the judgment passed by learned trial Court. In my humble view, case of respondents No.1 comes within the ambit of double jeopardy and it is settled proposition of law that no one can be tried twice for same offence. In my opinion, this aspect of the case has also been discussed by learned trial Court in the impugned judgment and extended benefit to respondent No.1. Order of acquittal has been passed after appreciating the evidence available on record. Even otherwise, there is point of double presumption of innocence as held by Supreme Court of Pakistan in its various pronouncements. Reliance is placed on 2024 SCMR 1116 (Sardaran Bibi vs. State), 2024 SCMR 51 (Muhammad Riaz versus Khurram Shehzad) and 2021 SCMR 873 (State versus Ahmed Umar Shaikh). Therefore, instant criminal acquittal appeal merits no consideration, the same is accordingly dismissed.

J U D G E

Gulsher/PS