Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 91 of 2019

Date of hearing : 03.02.2020.

Date of judgment : 03.02.2020.

Mr. Shafique Ahmed Laghari, Advocate for appellant / complainant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

J U D G M E N T

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Hoat Khan son of Muhammad Mithal Dahar has impugned the judgment dated 7^th May 2019. Respondents / accused (1) Mir Hamza son of Pahalwan, (2) Mir Khan son of Mehar, (3) Majeed son of Mehar, all by caste Abro, (4) Mukhtiarkar Line Revenue Daharki and (5) S.H.O. Police Station Daharki were tried by learned IV^th Additional Sessions Judge, Mirpur Mathelo in Sessions Case No.94/2017 for offence under Section 3 (2) of Illegal Dispossession Act, 2005. On the conclusion of the trial, vide judgment dated 7^th May 2019, above named respondents / accused were acquitted by the trial Court.

2. Brief facts of the prosecution case, as reflected in the judgment of the trial Court, are as under:

“The above Sessions Case arose out of criminal complaint under section 3 (2) of Illegal Dispossession Act-2005, to the effect that complainant is owner of plot measuring 4356 sq.ft. through survey No.244, situated in deh, Tapa and Taluka Daharki, District Ghotki as per registered sale-deed bearing Sr.No.217, dated 26.1.2015 and revenue entry No.2900, dated 12.5.2016 of deh Form-II deh Daharki. It is further alleged that above said plot was purchased from Nizam Hussain in sale consideration of Rs.250000/- through sale-deed No.217, executed by vendor before Sub-Registrar, Mirpur Mathelo on 26.1.2015, such possession of plot was handed over to complainant at the time of execution of sale-deed. The complainant improved the plot by spending huge amount. It is further alleged in the complaint that in the month of June-2016, accused Mir Khan with his father Mehar and some other persons illegally occupied over the said plot, therefore, complainant moved an application to SSP Ghotki at Mirpur Mathelo but accused second time illegally occupied the said plot and dispossessed the complainant. On 25.1.2017, at about 05:00 pm complainant along with Asghar Ali and Muhammad Anwar were available at plot, where above named accused came and forcibly occupied the said plot and dispossessed the complainant, therefore, complainant has filed complaint with a prayer to take cognizance against the accused in accordance with law and restore possession to the complainant.”

3. Trial Court framed the charge against the accused at Ex.03. They did not plead guilty and claimed to be tried.

4. At the trial, prosecution examined only one prosecution witness i.e. complainant. Thereafter, prosecution side was closed.

5. Statements of accused were recorded under Section 342, Cr.P.C at Ex.07 to 09, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in their defence and declined to give statement on oath in disproof of prosecution allegations.

6. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence, vide judgment dated 7^th May 2019, acquitted the above named accused.

7. Complainant being dissatisfied with the acquittal of the accused has filed this appeal.

8. Learned advocate for the appellant / complainant argued that respondents / accused have illegally occupied the land. It is further contended that there were minor contradictions in the evidence. The same will not affect the case of prosecution. Lastly, it is contended that trial Court failed to appreciate the evidence according to the settled principle of law. Learned counsel for the appellant / complainant prayed for converting the acquittal to the conviction.

9. Mr. Zulfiqar Ali Jatoi, learned Additional P.G argued that there were material contradictions in the evidence of the prosecution witnesses, which go to the root of the case. Learned Additional P.G argued that trial Court has properly appreciated the evidence, and acquittal order requires no interference by this Court.

10. I have carefully perused the impugned judgment and relevant record. It appears that trial Court, vide judgment dated 7^th May 2019, acquitted the accused mainly for the following reasons:

“9- In order to prove the case, complainant has examined himself at Ex.5, who in his examination-in-chief has deposed that he had purchased one residential plot admeasuring 00-40 ghuntas, out of S.No.44 deh Daharki, from one Nazim Hussain on 26.1.2015, in sale consideration of Rs.2,50,000/- in presence of Sub-Registrar, Mirpur Mathelo. Such Khata was executed in his favour. He further deposed that he remained in peaceful possession of the above said plot and have constructed one Chapra over the said plot and 5000 bricks were lying there. On 25.1.2017, he along-with Asghar Ali and Muhammad Anwar, were available at his plot, when at about 05:00 pm saw accused persons namely 1.Meer Hamza armed with gun, 2. Mir Khan armed with pistol, 3.Majeed with lathi, forcibly trespassed into the plot and on the force of weapons dispossessed him and forcibly occupied the same in presence of witnesses. He further deposed that on the same day at about 06:00 pm he along-with above named witnesses went to SHO police station Daharki for reporting the matter, but SHO refused, therefore, he filed petition/direct complaint for redressal of his grievances. Lastly he deposed that accused present in Court are same.

10- Complainant in his cross-examination has stated that P.W Nazim Hussain is sister’s husband as well as Marot. He admitted that he and witness Nazim are residing in one and same village Ghulam Ali Dahar. Accused are known to him prior to 7/8 months of this incident as they are local residents. He further admitted that Arshad Mirani and Aishi Ram are not his witnesses in this case. On 25.1.2015, possession was handed over to him at about 12-00 noon time in presence of Asghar Ali and Muhammad Anwar. Complainant has further stated that prior to purchase of plot from Nazim Hussain, he was unaware status of plot. At the time of incident of dispossession no body appeared there excepting him and his witnesses. Witness Muhammad Anwar is Pitafi by caste, while another witness Asghar is his real brother. The accused remained present for about 30 minutes at the place of wardat. He made resistance with accused but they issued him threats of murder on the point of weapons.

11- Complainant has not examined single witness in support of his contention, though complainant in his cross-examination has admitted that witness Muhammad Anwar is by caste Pitafi, while another witness Asghar is his real brother.

12- Besides above, it is an admitted position that civil suit bearing F.C.S.No: /2019, a suit for cancellation, specific performance of contract and permanent injunction, between same parties in respect of same property is pending adjudication before learned Senior Civil Judge, Ubauro. Learned counsel for accused has submitted copy of such plaint along-with his statement bearing F.C.S.No:62/2019, hence same cause may be decided by Civil Court in its jurisdiction and parties will seek their proper remedies.

13- Accused Mir Hamza, in his statement u/s 342 Cr.PC has taken plea that he had purchased plot from Nazim Hussain on 26.5.2007 since then they are in possession of residential plot and constructed houses over it, they have not occupied the complainant’s plot.

14- Moreover, the alleged incident is shown to have taken place on 25.1.2017, while complaint in hand is filed on 04.2.2017, with the delay of about 9/10 days for which complainant failed to furnish any plausible and cogent reason, that also creates doubt in the case of complainant.

15- The version of complainant is not supported by independent corroboration. Moreover, complainant has not examined Mukhtiarkar Daharki, in support of his version in order to prove that he has been dispossessed from his land, which also creates dent in the case of complainant. Hence, this point No.1 is answered as not proved.”

11. In the present case, during the trial, complainant had submitted an application that his both witnesses have been won over by the accused and they were not examined before the trial Court. Only complainant examined himself. Complainant did not produce copies of the reports of Mukhtiarkar and SHO concerned, in support of his case. Mukhtiarkar and SHO concerned were not examine before the trial Court. Evidence of the complainant has not been corroborated by some other independent pieces of evidence. Dispute was of civil nature. There is no evidence to satisfy this Court that respondents dispossessed the complainant from his property. It is also matter of deep concern as to why complainant and his witnesses did not offer resistance to the accused at the time of dispossession. Delay in filing of the complainant would also be fatal to the case of prosecution. Learned Additional Sessions Judge, in para No.12 has stated that Civil Suit bearing F.C.S. No.____/2019, a Suit for cancellation, specific performance of contract and permanent is pending between the parties with regard to same property. Mr. Laghari, learned counsel for the appellant / complainant, no doubt has submitted that it has been managed by the accused, but there are a number of infirmities in the prosecution case, on the basis of which trial Court has recorded the acquittal. Hon’ble Supreme Court in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), has observed as under:

“2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses’ presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed.”

12. For the above stated reasons, while relying upon the above cited judgment of the Hon’ble Supreme Court, I have no hesitation to hold that impugned judgment is neither perverse nor arbitrary. Hence, this Criminal Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Abdul Basit