IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Acquittal Appeal No.106 of 2017

Date Order with Signature of Judge

Before : Mr. Justice Fahim Ahmed Siddiqui

Capt. Syed Muhammad Aslam………………….………...………………..Appellant

Versus

The State & another…………………………..…………………………….. Respondents

Date of Hearing : 19.10.2017

Applicant Capt. Syed Muhammad Aslam in person.

Respondent No. 2 Abdul Wahid Munshi Khan through Mr. Raja Basantani, advocate.

Respondent No.1 through Mr. Zafar Ahmed Khan, the Addl. Prosecutor General, Sindh.

J U D G M E N T

FAHIM AHMED SIDDIQUI, J: The captioned criminal acquittal appeal has been preferred against the acquittal judgment dated 07.02.2017, passed in Cr. Case No. 2967 of 2010, FIR No. 463 of 2010, under Sections 447, 448, 420, 506-B PPC registered at Police Station Mubina Town, Karachi by the XXI Judicial Magistrate, Karachi East, whereby the Respondent No.2 has been acquitted.

2. The brief facts of the prosecution case, as narrated by the Appellant in the FIR are that he is the lawful owner of three sides plot bearing No.SB-11, KDA Commissioner Employees Cooperative Housing Society, which was given to him the Society. The details of the said plot are that, Plot No.SB-12 on West, 30 feet road on North, 100 feet rapid transit, which became extra land having 30 feet road. It is alleged by the Appellant that the said plot was illegally occupied by a land grabber namely, Abdul Ghaffar and closed the way of the plot of the Appellant, hence the Appellant had filed complaint before the Ombudsman of Sindh, which was decided in favour of the Appellant. The Appellant had also filed suit for damages and defamation bearing Civil Suit No. 504 of 2006 against the said alleged land grabber Abdul Ghaffar, however, during the pendency of the said suit, the Defendant has expired, as a result of which the alleged illegal encroachment of Abdul Ghaffar on the land of the Appellant has come to an end. However, as soon as the plot of Appellant became free from illegal encroachment, the owner of Plot No. SD-12 namely, Abdul Wahid Munshi Khan, the Respondent No.2 with the intent to make his plot corner, constructed a road on the plot of the Appellant. It is alleged that on 01.05.2008, when the Appellant tried to stop him, the Respondent No.2 extended threats of dire consequences and also succeeded in getting site plan and layout with connivance of Society officials and the Secretary of the Society namely, Tariq Aziz and got the Appellant’s plot on said 300 sq. feet road transferred in his name. The Appellant send such intimation to the KDA Wing, CDGK, who advised the Appellant to register a criminal case against the Respondent No.2. Thereafter the Appellant sent a legal notice to the Respondent No.2 and the Secretary of the Society, in response to which, the Society cancelled the revised plan and passed the order to reverse the plot on its actual place and given approval to include the extra land in Appellant’s plot and issued the letter of cancellation of the plan vide letter to KBCA, as the sanction was got by making the corner plot. On 15.03.2010, the Respondent No.2 got approved the site plan of the project, showing the Appellant’s layout plans as cancelled. Appellant also filed complaint against the Respondent No.2 to KBCA and the approval of the map was pending, despite that the Respondent No.2 was booking the flats. Commissioner of the Society informed the Appellant that his plot is restored in original position, but despite that, Respondent No.2 was booking the flats on corner plot basis.

3. On completion of usual investigation, a Final Report under Section 173 CrPC was submitted against the Respondent No. 2, and trial Court took cognizance of the case. As such the charge was framed against the accused (Respondent No. 2), which he denied and claimed trial. The trial commenced and the learned trial Court examined prosecution witnesses. The trial Court also examined the accused (Respondent No. 2) under Section 342 CrPC in which he once again denied all the allegations levelled against him. The learned trial judge, after evaluating the prosecution evidence, came to conclusion that the prosecution could not succeed in bringing the guilt of accused at home, as such he was acquitted.

4. I have heard the arguments advanced and have gone through the available record.

5. The Appellant submits that the learned trail Court could not appreciate the evidence produced during trial. He submits that plethora of evidence was produced before trial Court, which was brushed aside without assimilating the crux and gist of the matter. According to him, the trespass and fraud committed by the Respondent No. 2 was proved on the basis of evidence produced but the learned trial Court overlooked the same. According to him, there is mis-reading and non-reading of the available evidence.

6. The learned counsel for the Respondent No. 2 supports the impugned judgment by submitting that the same is correct and proper. According to him, there is no mis-reading and non-reading of evidence in the impugned judgment. He submits that provisions of Sections 447, 448 and 420 PPC do not attract to the present case while charge could not be established in respect of Section 506-B of PPC.

7. In the instant case, charge was framed under Sections 447, 448, 420 and 506-B PPC. It is the admitted position that the alleged property of the Appellant is an open plot and there is no boundary wall either. As such the property of the appellant does not come under the definition of house as such question of house trespass as mentioned under Section 448 PPC does not arise. It is the case of the Appellant that on a portion of his plot, a road was constructed by the Respondent No. 2 as such he has trespass over his plot. He also claims that the land adjoining to his plot on which road is constructed was granted to him by the Society but he did not produce any document regarding such grant of adjoining land. It has come on the record that the payment for adjoining land has not been made and no document or addenda lease for excess adjoining land was produced by the Appellant. The legal position is that without payment and execution of addenda lease etc., no right was created in favor of the Appellant. It is also an admitted position that there was no boundary wall erected on the plot, no structure, hedge, plantation etc. was made and none was deputed at the plot to guard the same as such the possession of the Appellant on such additional piece of land is also questionable. Apparently, the physical possession of the plot is remained with the society and at the most it can be said that the Appellant was in constructive possession of the plot but in absence payment for additional land, the constructive possession of the entire plot is also ambiguous. It is settled legal position that for attracting criminal liabilities of trespass, the Appellant is required to establish his case beyond reasonable doubt, in which he remained fail. The term Criminal Trespass and House Trespass has been defined in Section 441 and 442 PPC, which read as under:

“441. Criminal trespass: Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or, having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit "criminal trespass".

442. House-trespass: Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".

Explanation: The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house trespass.”

It may be pointed out that the Appellant was allowed to occupy the plot by the society and he has a right and entitlement to enter into the plot, raised construction. An interference or transgression of such right may be a trespass but the same cannot be termed as criminal trespass as per definition of Section 441 of PPC. Similarly, the property in question is an open plot; therefore, it does not attract the definition of ‘house trespass’ as per provision of Section 442 of PPC. I have scanned the entire evidence and found that nothing could be brought on record during trial, which may attract the house trespass or even criminal trespass. In my humble view, no material was collected during investigation to substantiate the case of prosecution resultantly no such material was actually available with the prosecution to bring the guilt of accused at home.

8. Now, there remains only Section 420 and 506-B PPC in the charge. Section 420 PPC is defined as:

“420. Cheating and dishonestly Inducing delivery of property: Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment, of either description for a term which may extend to seven years, and shall also be liable to fine.”

The Respondent No. 2 was charged before the trial Court under Section 420 PPC and from the above definition, it is clear that a conviction under this section can only be possible when the act of ‘Cheating’ is coupled with ‘dishonest inducement’ to deliver the property. In the present case, there was no inducement to the Appellant for delivering the property. The allegation is that the Respondent has trespass in a plot allotted to the Appellant and then encroached upon a portion of the plot and/or additional land on which the Appellant has preferential right and constructed a road. There may be an action of simple ‘trespass’ and even ‘encroachment’ and nothing on the record is available to believe that the encroachment, if any, is with a criminal mind. The alleged ‘encroachment’ might not be an encroachment at all or it was not with a criminal intention but under some misconception. Be that as it may, the alleged encroachment cannot be termed as ‘inducement to deliver’ the property, while as per discussion in preceding paras, it is clear that there was no ‘criminal trespass’ and for a simple ‘trespass’ a tortuous remedy may be available to the Appellant but no criminal action is justified.

9. As far as allegation regarding 506-B PPC is concerned, I have examined the entire evidence and it is obvious that no evidence can be brought on record by the prosecution to believe that the Respondent No. 2 has threatened the Appellant in a manner to attract a criminal folly culpable under Section 506-B PPC. No doubt, the Appellant and his witnesses levelled such allegation but no corroborative piece of evidence is brought on record in this respect. The prosecution did not bother to collect some independence evidence regarding this aspect. The prosecution did not examine a neighbour or even a passer-by for fortify the case of complainant (Appellant). In the instant case, the trial court took great pain in discussing all important material aspects and to record its opinion on every material and relevant point. The trial court after marshalling the evidence on record came to the conclusion that there were serious infirmities in the prosecution's story. When the trial court finds so many serious infirmities in the prosecution version, then the trial court was virtually left with no choice but to give benefit of doubt to the accused according to the settled principles of criminal jurisprudence.

10. On marshalling the entire evidence and the documents on record, the view taken by the trial court is certainly a possible and plausible view. It is also a settled legal position that if the trial court's view is possible and plausible, the Appellate Court should not substitute the same by its own possible views. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable.

11. I have considered the entire evidence and documents on record and the reasoning given by the trial Court for acquitting the accused. In my humble view, the trial court carefully scrutinized the entire evidence and documents on record and arrived at the correct conclusion. I am clearly of the opinion that the reasoning given by the trial Court for acquitting the accused is wholly justified and sustainable and the same is in accordance with the settled principles of law. As such, on consideration of the totality of the circumstances, the instant appeal filed by the appellant is dismissed.

JUDGE