IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Acquittal Appeal No.S-26 of 2012
Present:
Mr. Justice Amjad Ali Sahito
Appellants: 1. Dr.Bhagwan Das s/o Menghraj Mal Pathai, 2. Dr.Bhagwanti Devi w/o Dr.Bhagwandas Pathai, through Mr.Muneer Ahmed Khokhar, Advocate.
Respondents: 1. Haji Gahano Khan s/o Haji Khan Jatoi, 2. Mashooq Ali s/o Haji Gahano Khan Jatoi, 3. Sono Khan s/o Raham Ali Jatoi, through Mr.Inayatullah Morio, Advocate.
State: Through Mr. Raja Imtiaz Ali Solangi, A.P.G
Date of hearing: 19.03.2018.
Date of judgment: 30 .03.2018.
JUDGMENT
AMJAD ALI SAHITO, J.- The instant appeal is directed against judgment dated 09.04.2012, whereby the respondents/accused named above were acquitted of the charge for an offence punishable u/s. 3 of Illegal Dispossession Act, 2005, by learned 7th Additional Sessions Judge, Larkana.
2. The brief facts leading to disposal of instant appeal are that on 18.05.2007, at 11.00 a.m, the above named respondents/accused alongwith absconding co-accused Muhammad Nawaz illegally occupied the land of complainants bearing Survey No.513, area (03-05) Acres, situated at Deh Wah Nabi Bux, Tapo Bakapur, Taluka and District Larkana, without having lawful authority with intention to dispossess/ grab/control and occupy their property.
3. After filing of the complaint, the matter was sent to SHO and Mukhtiarkar concerned for enquiry/report, on the basis whereof, the complaint was brought on regular file of the Court. After completion of all the formalities, the charge was framed against the respondents/accused at Exh.02, to which they pleaded not guilty and claimed trial.
4. At the trial in order to establish the accusation against the respondents/accused, PW-01 Dr.Bhagwands and PW-02 Dr.Bhagwanti Devi were examined at Exh.08 & 09 respectively, PW-03 Zulfiqar Ali at Exh.10, PW-04 Ahmed Ali at Exh.14 and PW-05 Iqbal Ahmed Mukhtiarkar Taluka Larkana at Exh.12, he produced report of his predecessor at Exh.12/A. Thereafter, the appellant/complainant closed his side vide statement at Exh.13.
5. The respondents/accused in their statements recorded u/s.342 Cr.PC denied the allegations leveled against them by pleading their innocence. However, they neither examined themselves on oath nor led any evidence in their defense.
6. On appraisal of the evidence, the learned trial Court acquitted the respondents/accused of the charge vide his judgment dated 09.04.2012, which the appellants/complainants have impugned before this Court by filing the instant appeal.
7. Mr.Muneer Ahmed Khokhar, learned counsel for appellants/ complainants has contended that the appellants/complainants are actual owners and lawful occupier of the property in question; that the respondents/accused without any lawful authority entered into the property of complainants and forcibly dispossessed them, that the sufficient material was brought on the record to connect the respondents/accused with commission of offence, which was not considered by the learned trial Court. By contending so, he prayed for setting aside the impugned judgment passed by learned trial Court and conviction of the respondents/accused in accordance with law.
8. Conversely Mr.Inayatullah Morio, learned counsel for the respondents/accused argued that the respondents/accused have not dispossessed the appellants/complainants from their property, infact the appellants/complainants had purchased the land in question from one Meenhal Khan(brother of Haji Gahano Khan) on the consideration of Rs.1,32,75000/- and appellants/complainants paid part payment but they failed to pay remaining amount, that the learned trial Court rightly evaluated the evidence and recorded acquittal of the respondents/accused by extending them benefit of doubt. He lastly prayed for dismissal of instant appeal.
9. Mr.Raja Imtiaz Ali Solangi, A.P.G supported the impugned judgment.
10. I have considered the above arguments and perused the record.
11. At the very outset, it is pertinent to mention here that the Illegal Dispossession Act, 2005, is a special legislation to protect the lawful owners and occupiers of immoveable properties from their illegal or forcible dispossession therefrom by the property grabbers. It will be expedient to reproduce the provision of Section 3 of the Act for ready reference;-
“3. Prevention of illegal possession of property, etc.--- (1) No one shall enter into or upon any property dispossessing/grab/control or occupy it without having any lawful authority to do so with the intention to dispossess/grab/control or occupy the property from owner or occupier of such property.
(2) Whoever contravenes of the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of offence shall be compensated in accordance with the provision of Section 544 of the Code.
12. The object and spirit of legislation of Illegal Dispossession Act, 2005, is to curb the activities of property grabber. Preamble of the act ibid manifests that it aims to protect lawful owners and occupiers of immoveable properties from their illegal or forcible dispossession by the property grabbers. In the instant case, the appellants/complainants claim that they are owners of Survey No.513, Deh Wah Nabi Bux, Tapo Bakapur, Taluka and District Larkana, and on 18.05.2017 the respondents/accused have illegally occupied their land but the record reveals that the appellant/complainant Dr.Bhagwandas admitted that he has purchased total 44 acres of land on the consideration of Rs.1,32,75000/- and Survey No.513 area (03-05) Acres was also included in the said land and he paid token money of Rs.1000/- by way of cash so also Rs.100,000/- through a cheque to one of the respondents/accused namely Haji Gahano Khan and the remaining amount of Rs.81,71,000/- was given through cheques, which were subsequently dishonored, resulting whereof, respondent/accused Haji Gahano Khan filed a direct complaint against appellant Dr.Bhagwandas before the Court of learned IV-Judicial Magistrate, Larkana, where he on account of his failure to furnish the required surety of Rs.20,00,000/-, was remanded to jail. The matter was then settled through Mr.Ali Nawaz Ghanghro, Senior Advocate in the respect of the land in question wherein it was settled that the Suits No.115/1997 and No.218/1997 respectively filed by Jan Muhammad and Hazoor Bux will be withdrawn with further settlement that the land bearing Survey No.513 will be resold to respondent/accused Haji Gahano Khan if he repays the amount to Dr.Bhagwandas. Moreover, there is no denial to this fact that version of the parties qua ownership of the disputed land is at variance regarding which civil litigation is already pending involving the title of the parties in respect of the land in question. As per the respondents/accused, they filed a copy of F.C.Suit No.40/2007, alongwith a copy of application under order 39 Rule 1 & 2 CPC before learned trial Court stating therein that the learned 2nd Senior Civil Judge, Larkana, has also granted status-quo in favour of respondent/accused on account of apprehension of his dispossession at the hands of appellant No.1, and such fact was also concealed by the appellants/complainants in the complaint. Moreover, the controversies in respect of the same property could only be decided by the Civil Court after recording evidence of both the parties. It is pertinent to mention here that the concerned SHO in his report has clearly stated that appellant Dr.Bhagwandas purchased 50 acres of land from respondent No.1 Haji Gahano Khan, but on his failure to pay outstanding amount of Rs.10,50,000/-, the possession of the land bearing Survey No.513 lying vacant was retained by the respondent Haji Gahano Khan and the civil litigation against the said land is said to be pending between the parties before the Court of learned 2nd Senior Civil Judge, Larkana.
13. The facts and circumstances of the case in hand lead to only one conclusion that there is dispute between the parties regarding settlement over the property in question, for which Civil Court is only the proper forum. The scope of the interference in appeal against acquittal is narrow and limited for the reason that in acquittal, the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence that an accused shall be presumed to be innocent until proved guilty in other words presumption of innocence is doubled. As per dictums laid down by the Honourable Supreme Court, it has been categorically held that such judgment should not be interjected unless the findings are pervasive, arbitrary, foolish, artificial, speculative and ridiculous. In the instant case, there is no illegality or infirmity committed by learned trial Court while passing the impugned judgment, which does not call for any interference by this Court.
14. In view of above circumstances, I am satisfied that there is no gross misreading of evidence resulting in miscarriage of justice and sound reasons have been assigned by the learned trial Court while recording acquittal of the respondents/accused. In consequences, this appeal merits no consideration which is dismissed accordingly.
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