Criminal Acquittal Appeal No. 21 of 2013

Date Order with Signature of the Judge

1.For hearing of case.

2.For hearing of M.A.No.418/2013.

Heard on 20^th May, 2016.

Mr. Muhammad Khalid, Advocate for appellants.

Syed Samiullah Shah, Advocate for respondent.

Mr. Abdullah Rajput, Assistant Prosecutor General, Sindh.

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SYED MUHAMMAD FAROOQ SHAH, J.:- Impugned is the order dated 17.12.2012 passed under section 265-K Cr.P.C. in Criminal Complaint No.02 of 2008, whereby the accused/respondent No.1 & 2 were acquitted. Being aggrieved and dissatisfied with the impugned order, the appellant has preferred the captioned appeal and prayed to set aside the impugned order and remand the case to the trial court with directions to proceed with the case in accordance with law for its disposal on its merits.

2. Arguments heard. Record perused.

3. Learned counsel for the appellant contended that in earlier Constitutional Petition No.D-795 of 1993 neither the appellant nor the respondents were the parties, which was filed by the Society against the government of Sindh for only purpose of elections of the society and voters list for such election. Learned counsel for the appellant submitted that the appellant was illegally dispossessed by the accused person therefore the impugned order is illegal, perverse, suffering with legal infirmities and same is liable to be set aside. Learned counsel referred to the case of HAJI TAJ DIN & ANOTHER V/S SH. MUJIB ULLAH & ANOTHER (2009 P.Cr.L.J. 864), wherein learned judge of Lahore High Court has observed that if law had provided more than one remedy to the aggrieved person then it was his choice to avail any one of those or all other remedies and no bar or restraint can be placed on complainant or aggrieved person to approach different forum at the same time to avail respective remedy, therefore, the direct complaint in the instant case under section 3 & 8 of the Illegal Dispossession Act, 2005 against respondent Nos.1 & 2 during pendency of aforesaid petition before Hon'ble High Court is tenable in law and the appellant should have not to wait until decision of aforesaid petition pending in the High Court and then seek remedy for filing application under Illegal Dispossession Act, 2005.

4. Learned counsel for the respondents submitted that the respondents are having title documents in respect of disputed plot No.B-118-A and they have also produced the utility bills likewise Sui Gas, PTCL and the said plot was earlier allotted to one Athar Ahmed Siddiqui. In such view of the matter, the only civil remedy is available to the appellant by way of filing civil suit for declaration.

5. Averments of the complaint i.e. Cr. Misc. Application No.02 of 2008, filed under section 3 read with section 8 of the Illegal Dispossession Act, 2005, reflects that on 15.5.1997 the complainant entered into an agreement with M/S Gull Estate & Construction (Registered) having its office at Plot No.C-06, Block-9, Architectures and Engineers Employees Cooperative Housing Society, KDA Scheme No.36, Gulistan-e-Jauhar, Karachi for purchase of Plot No.B-40-A, Block-8, AEECHS, Gulistan-e-Jauhar, Karachi on payment of usual price and subsequently another disputed Plot No.B-118-A, Block-08, AEECHS, Gulistan-e-Jauhar, Karachi was allotted, which reflects from receipt dated 18.01.2002 and the said subsequent plot was mutated in favour of appellant. The facts narrated in paragraph 9 of the complaint reveals that Hon'ble High Court in Constitutional Petition No.D-795/1993 suspended the managing body of the society to hold the elections and Mr. Moinuddin, Assistant Registrar (Judicial) was appointed as receiver of the society. In paragraph 10 of the direct complaint, the applicant has averred that on 24^th November, 2007 the respondent No.1 with the help of respondent No.2 forcibly dispossessed the applicant and occupied the subject plot. It is further narrated in the said paragraph that respondents were present at the place of occurrence when the Chowkidar of applicant was forcibly thrown out and boundary wall constructed by the applicant was demolished in presence of inhabitants of locality.

6. It is an admitted position that in Constitutional Petition No.D-795 of 1993 vide order dated 23.12.2010 receiver was appointed by this court over the affairs of said society and subsequently in Constitutional Petition No. D-795/1993, 453/2014 and 90/2011 the said administrator was directed to complete the task and to submit detail report. His report in detail is spreading on 26 pages, was also placed in the instant appeal, paragraphs 13(G), (H), (I) are reproduced hereinbelow, wherein the allotment after period from 22.3.2001 were held to be illegal and allottees are not shown members. Page 24

“13.(G). PERSONS THOSE HAVE THE SHARE CERTIFICATE(S) AND ALLOTMENT(S) ORDER(S) AND POSSESSION OF THE LAND/PLOT FROM ANY ABOVE NOTED ‘GROUPS’ AFTER 22.3.2001 TILL NEW OFFICE BEARERS/MANAGEMENT OF THE SOCIETY IS ELECTED; IS ILLEGAL AND NOT GENUINE MEMBER.

13.(H). SALE AND PURCHASE BY SALE DEED OR UNDER COVER OF POWER OF ATTORNEY BY SALE AGREEMENT AFTER 22.3.2001 IS ILLEGAL AND NOT GENUINE.

13.(I). CANCELLED MEMBER SHIP IF PURCHASED FOR A PLOT OF THE HOUSING SOCIETY AS PER THE RECORD AFTER 22.3.2001 IS ILLEGAL AND NOT GENUINE.”

7. Since as per averments of the direct complaint the final payment of disputed plot was made on 18.1.2002, therefore, in view of Receiver’s report the said occupation or ownership over the suit plot by the complainant may not be considered a legal occupation. In such view of the matter, learned trial court has rightly acquitted the accused person under section 265-K Cr.P.C. which is enabling section empowering the trial court to acquit the accused at any stage of proceedings if after hearing the prosecution and accused it considered that there is not probability of their conviction; more particularly, the complainant in view of aforementioned report of receiver appointed by this court cannot be considered a legal owner or occupier of disputed plot, hence section 3 & 4 of the Illegal Dispossession Act, 2005 are not attracted in the circumstances of the present case.

8. It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the later case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, and arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. It is settled principle of law as held by superior courts that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

9. After scrutinizing and scanning entire record, I have reached to an unequivocal conclusion that the accused/respondents were rightly acquitted by the trial Court. There is hardly any improbability or infirmity in the impugned order of acquittal recorded by the learned trial court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained. Consequently the instant Criminal Acquittal Appeal is dismissed.

*Aamir/PS* J U D G E