IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-03 of 2016

Appellant/Complainant :      Maqbool Ahmed s/o Ali Nawaz Khuhawar

Through Mr.Abdul Rehman Bhutto, Advocate

Respondents :       Through Mr.Rafique Ahmed Abro,

Advocate for private respondents

The State through Mr.Raja Imtiaz Ali Solangi,

A.P.G 

Date of hearing               :       07.12.2018          

Date of decision              :       13.12.2018                            

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned order dated 14.01.2016, passed u/s 265-K Cr.PC by learned Additional Sessions Judge, Shahdadkot, in Sessions Case No.185/2013, “Re. Maqbool Ahmed Vs. Ghulam Muhammad and others”, whereby the private respondents/accused were acquitted of the charge, for an offence punishable u/s 3 and 4 of Illegal Dispossession Act, 2005. 

2.                The facts in brief necessary for disposal of instant criminal acquittal appeal are that as per appellant/complainant, his wife Mst.Jahan Ara and daughters Anjum and Naila Maqbool alias Nelofer are owners of Survey No.1060, Ward-B, measuring to be 11472-2 Square Yards, which is situated at Railways Station Road, Shahdadkot, which he used to manage on their behalf as their Attorney since long, somewhat three years back, on a portion whereof, he has constructed a Rice Mill and some Shops. Subsequently, he installed two “Aara” machines over an area of 10,000 square feet, in eastern side of the said plot. The private respondent/accused Ghulam Muhammad was appointed as “Munshi” to look-after the said “Aara” machines, which were made functional on Engine Oil. He then purchased wood worth rupees Ten Lacs, for furniture and to be sold as fuel, it was kept lying over the said plot. Private respondent/accused Ghulam Muhammad obtained illegal electric connection for the said “Aara” machines, which annoyed him and he then got disconnected. On that private respondent/accused Ghulam Muhammad misbehaved with him by saying that all the factories and mills at Shahdadkot are being run on illegal electric connections. On 25.04.2013, as per appellant/complainant, he and his son Muhammad Faisal went to look-after the said machines and wood lying therein were found sitting in its compound the private respondents/accused and two unknown culprits, duly armed with weapons; they subsequently maltreated him by saying that they have occupied his property by force. The incident was reported to the police and then the complaint under the provision of Illegal Dispossession Act, was filed, for action against the private respondents/accused. It was brought on record after due enquiry. The private respondents/accused did not plead guilty to the charge. The appellant/complainant was examined and then learned trial Court acquitted the private respondents/accused on their application under Section 265-K Cr.PC, by way of impugned order, by making the following observation;

“I have heard the arguments of the parties and perused the record, which reveals the new facts which were suppressed by the complainant. In this regard the report submitted by the SHO of P.S A-Section Shahdadkot, bearing No.1051 dated 05.10.2015, shows that the disputed property was handed over by complainant willfully to the respondents/accused as being his tenant and the said disputed property is now in possession of complainant and the respondents/accused have shifted their all the installation and articles from the disputed property and are no more in possession of that disputed property, such report was called on the application moved by the respondents/accused to bring the facts on record as according to them the dispute has been resolved between the parties due to private Faisla. The learned counsel for the respondents/accused during the course of his arguments has stressed upon that the respondents/accused had neither illegally dispossessed the complainant nor the respondents/accused are in possession of disputed property and they are being victimized by the complainant”.  

3.                It is contended by learned counsel of the appellant/complainant that the restoration of the possession of the disputed property by the private respondents/accused to the appellant/complainant prima facie indicates that they were in unlawful possession whereof, for that they were liable to have been dealt with in accordance with law and their acquittal by learned trial Court without recording evidence of material witnesses was not justified. By contending so, he sought for remand of the matter with direction to learned trial Court to record evidence of the material witnesses and then to pass appropriate order in accordance with law.

4.                It is contended by learned A.P.G for the State and learned counsel for the private respondents/accused that the parties were disputed over tenancy, such dispute between them has been resolved by way of private “Faisla”; consequently, the possession of the disputed property has been restored to the appellant/complainant by the private respondents/accused. By contending so, they sought for dismissal of the instant criminal acquittal appeal.  

5.                I have considered the above arguments and perused the record.

6.                As per appellant/complainant, his “Aara” machines were being run on Engine Oil. Subsequently, those were made to run on electricity by obtaining illegal connection by his “Munshi” private respondent/accused Ghulam Muhammad, without his consent by saying that all the factories and mills at Shahdadkot are being run over illegal electricity connections. If it is believed to be so, then it prima facie indicates that possession of Ghulam Muhammad over the said “Aara” machines was little more than “Munshi”, and the grievance with the appellant/complainant was only to the extent that the said “Aara” machines were made to run on electricity by private respondent/accused Ghulam Muhammad without his consent. Be that as it may, the possession of the disputed property now has been restored to the appellant/complainant by the private respondents/accused by way of private “Faisla”. Such act on their part appears to be a good-will gesture, the same could hardly be treated to be an offence punishable under the provisions of Illegal Dispossession Act, 2005.

7.                There is another aspect of the case, which not be lost sight of. As per appellant/complainant, the disputed property is owned by his wife and daughters, which he was managing on their behalf as their attorney and in that capacity, he obviously filed the instant direct complaint. The filing of direct complaint by an attorney is not permissible at law.

8.                In case of Lt.Col.(Rtd) Tariq Latif Vs. Mst.Jamila Sultana and another (2006 PCr.LJ-476), where it has been held by the Honourable Court that;

“---Validity---Respondent/complainant had filed her direct complaint through her attorney which was not maintainable in law”.

9.                No illegality or irregularity is found to has been committed by learned trial Court while passing the impugned order thereby recording acquittal of the private respondents/accused, which may justify making interference with it by this Court by way of instant criminal acquittal appeal, it is dismissed accordingly. 

                                                                                                                                                                       JUDGE

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