IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Criminal Appeal No. S – 54 of 2016

 

Appellant           :        Sikander Ali, Bashir Ahmed & Munir Ahmed,

all sons of Pir Bux Khoso, through Mr. Aamir Ali Bhutto, Advocate

 

Complainant:             Syed Chuttal Shah S/o Syed Shah Nawaz Shah, through Mr. Qurban Ali Malano Advocate

 

Respondent       :        The State, through Mr. Shafi Muhammad

Mahar, Deputy Prosecutor General     

 

Date of hearing :        02.09.2021, 06.09.2021, 20.09.2021 and 23.09.2021

Date of decision:                 08.10.2021

 

JUDGMENT

 

AMJAD ALI SAHITO, J:-   The appellants by way of instant Criminal Appeal have impugned judgment dated 12.03.2016, passed by learned 1st Additional Sessions Judge, Naushahro Feroze, in Sessions Case No.172/2011 (re- Syed Chuttal Shah vs. Muhammad Azeem and others) for offences punishable under Sections 3, 4, 7 and 8 of the Illegal Dispossession Act, 2005, whereby the appellants have been convicted and sentenced for offence u/s 3(2) of Illegal Dispossession Act, 2005 to undergo R.I for (04) four years and to pay fine of Rs.5000/- each and in case they failed to make payment of fine to further undergo S.I for two months, they were also directed to pay Rs.10,000.00 (ten thousand) each as compensation to complainant/victim Syed Chuttal Shah. The appellants were further directed to hand over / restore the possession of property mentioned above to complainant Syed Chuttal Shah at once, as provided u/s 8(1) of Illegal Dispossession Act, 2005. In case of failure, they shall be dealt with under the provisions of Section 8(2) of the Act.

2.      The facts in brief necessary for the disposal of instant criminal appeal are that complainant namely Syed Chuttal Shah filed Direct Complaint No.12 of 2010, before the Court of learned Sessions Judge, Naushahro Feroze, which was made over to the Court of learned 1st. Additional Sessions Judge, Naushahro Feroze for its disposal. It is alleged that the complainant is the owner of land bearing S.No.132 (4-36) Acres (subject‑land) situated in Deh Kandiaro and such record of rights also stand in his name in Deh form VII-B, whereas, the said land was partitioned in the year 1971 in between the complainant and his brother Syed Juman Shah by the competent revenue authorities and up to 20.04.2006 the possession of the aforesaid land was with him. The complainant made applications/complaints to the Minister Revenue, resultantly the Executive District Officer (Revenue) after hearing the parties passed the order dated 02.10.2008 with the opinion that the opponents have no ownership over S.No.132 (4-36) Acres of Deh Kandiaro and the Mukhtiarkar and Deputy District Officer (Revenue) Kandiaro were directed for vacating the possession through the police force. The accused were influential having links with the criminals, hence the revenue authorities could not restore the possession to the complainant. Meanwhile, the accused persons filed F.C Suit No.84/2008 in order to continue their illegal occupation over the land but apprehending dismissal of the suit on the application u/o 7 Rule 11 CPC filed by the complainant, they withdrew the same simply u/o 23 Rule 1 CPC, hence the said suit was dismissed vide order dated 08.01.2010. Thereafter, the complainant filed the instant direct complaint under Section 3, 4, 7 & 8 of the Illegal Dispossession Act, 2005, with the prayer that since the accused have trespassed into their land, therefore, they are liable to be prosecuted under the law, which was brought on regular file.

3.      After bringing the direct complaint on regular file, the learned trial Court framed the formal charge against the appellants at Ex.02, to which they pleaded not guilty vide their pleas were recorded at Ex.3 to 5, respectively.

4.      The prosecution to prove its’ case, examined PW-1 Complainant Syed Chuttal Shah (Ex.7), he has produced Schedule ‘A’, Deh form 10, copy of F.C Suit No.84/2006, deh form VII-B and photocopy of complaint at (Ex.7/A to 7/E) respectively;  PW-2 Muhammad Ali Siyal (Ex.8); PW-3 Abdul Hameed Panhwar, DSP Pir-jo-Goth at (Ex.10); PW-4 Gada Hussain Soomro, Mukhtiarkar, Board of Revenue Hyderabad at (Ex.11), he has produced the report at (Ex.11/A); PW-5 Khamiso Khan, Retired Inspector at (Ex.12) and then prosecution closed the side.

5.      The appellants in their statements recorded u/s 342 Cr. P.C denied the prosecution allegation by pleading with their innocence. They did not examine themselves on oath or anyone in their defence. 

6.      The learned trial Court on evaluation of evidence so produced by the prosecution convicted and sentenced the appellants, as stated above.

7.      It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant and the evidence which was adduced by the prosecution at trial being inconsistent and doubtful has been believed by learned trial Court without lawful justification; that the appellants are neither land grabbers nor members of the Qabza Mafia, therefore, the provisions of Illegal Dispossession Act, 2005 are not applicable in the instant case; that the incident had allegedly taken place on 20.04.2006, whereas, the direct complaint was filed by the complainant in October, 2010, as such there is delay of four years for filing of complaint; that the complainant and P.Ws have not given the specific date and time of the alleged dispossession in their evidence nor it is mentioned by the complainant in the memo of his direct complaint; that the appellants were already in possession of the land in question by purchase from its original owner Piyaro Khoso, who put them in possession legally, therefore, they cannot be said to have illegally occupied the land; that PW-1 complainant Syed Chuttal Shah has deposed in his cross-examination while admitting the fact that he has knowledge about the execution of sale agreement between one Piyaro Khoso and his brother Juman Shah, but he has not challenged the said agreement, meaning thereby that the said agreement is still in the field and he has also admitted that the appellants are businessmen; that the complainant has further stated in his cross-examination that he was informed by Loung Mangrio and Muhammad Ali Siyal that the appellants/accused have occupied his land forcibly and he has further admitted that he was not present at the land on the date of dispossession. It is further contended that the version of the complainant Syed Chuttal Shah is contradicted by PW-2 Muhammad Ali on material points. It is contended that PW-5 Inspector Khamiso Khan has admitted in his evidence that he has not visited the land nor issued notice to the accused of their appearance but he has prepared the report at the police station; that the appellants were in legal possession of the land which they had purchased from its original owner Piyaro Khoso through registered sale deed in the year 2004. He has lastly prayed that the impugned judgment is liable to be set aside and the appellants may be acquitted from the charge. In support of his contentions, he has relied upon the cases reported as 2019 M L D 1622 [Peshawar]; 2013 M L D 1444 [Sindh]; 2018 P Cr. L J 1522 [Sindh]; 2018 P Cr. L J 1341 [Sindh]; 2017 Y L R Note 409 [Sindh]; 2018 P Cr. L J Note 8 [Sindh] and 2019 M L D 1163 [Sindh].

8.      Conversely, learned counsel appearing for the complainant has contended that the appellants being members of Qabza Mafia have forcibly occupied the landed property of the complainant; that infact the complainant is the owner of the property; that the evidence adduced by the prosecution is fully supported and there are no such major contradictions in the evidence of the complainant and PWs, therefore, the learned trial Court has rightly awarded conviction and sentence to the appellants. In support of his contentions, he has relied upon the case reported as (2019 M L D 57 [Sindh]).

9.      Learned Deputy Prosecutor General, appearing for the State by supporting the impugned judgment has prayed for dismissal of the instant appeal.

10.    I have heard the learned counsel for the appellants/accused, learned counsel for the complainant and learned Deputy Prosecutor General for the State and perused the record.

11.   Allegedly, the incident took place on 20.04.2006, whereas the complainant has filed the complaint under illegal dispossession in October 2010 with a delay of about four years. The claim of the appellants/accused was/is that on 08.05.2004 in the sum of Rs.980,000/ in the presence of the witness they purchased land being Survey No. 132 measuring 4-36 acres from Piyaro khoso through sale agreement, whereas, the said Piyaro Khoso had purchased the land from one Abdul Jaleel son of Syed Shahnawaz Shah, the father of the complainant Syed Chuttal Shah. During private partition the subject land was exchanged by Syed Chuttal Shah with his brother Syed Abdul Jalil Shah since then the subject land was in possession of said Syed Abdul Jalil Shah, which was subsequently purchased by Piyaro Khoso. Since Syed Chuttal Shah exchanged some property with his brother Syed Abdul Jalil Shah and possession of the exchanged property was also transferred to each other, but the Revenue record of rights was not changed due to the death of Syed Abdul Jalil Shah Son of Shahnawaz Shah. The subject property was not transferred to its owner therefore, taking the advantage of the same, the brother of late Abdul Jalil Shah filed a complaint under the Illegal Dispossession Act before the trial Court. The report was called by the learned trial Court from the concerned Mukhtiarkar (Revenue), Kandiaro. According to the report dated 03.11.2004 filed by the Tapedar, the S.No.132, area 4-36 acres owned by Syed Chuttal Shah/Complainant but one Azeem Khoso/ appellant (who died during the pendency of the appeal) was in possession of said Survey number. On the other hand, the claim of the complainant was/is that he being the owner of the property was in possession from 1971 to 2005. On 02.09.2021 one Pervez Ali, claiming himself to be the son of complainant Syed Chuttal Shah was present in court, on the query about the land Revenue receipts since 1971, he sought time to produce the same on the next date of hearing but he failed to produce the said Dhal/land Revenue receipts, to believe that the complainant was in possession of the subject land and he was continuously paying Dhal/Land Revenue receipts/tax to the government of the said land. In cross-examination PW-1 Syed Chuttal Shah/complainant admits that “I have not challenged the sale agreement in between my brother Juman Shah and Piyaro before any court of law. It is fact that agreement between Juman Shah and Piyaro still is not cancelled. I do not know if accused have purchased the land in question from Piyaro. However, accused had managed a false agreement in between them and Piyaro.” He further admits that “ I had filed application U/S 145 Cr.P.C before DDO Revenue Kandiaro. The application was disposed of in favour of accused. DDO Revenue had shown the possession of land as legal one in favour of accused vide order dated28.4.2000.” The complainant has also admitted in his cross-examination that he has not filed suit for declaration of the subject land. The complainant has further claimed that the Khoso community was in possession of the land in question and they were his haris but he has failed to produce a single hari in the court to support his version/claim.

12.    Further the complainant was not sure how he was dispossessed from the subject land in para No.5 of the complaint, it is written that the complainant was dispossessed by the accused persons on gunpoint, whereas, in his evidence, he has deposed that Loung Mangrio and Muhammad Ali Siyal (PW-2) informed him that appellants/accused have forcibly occupied his land. PW-2 Muhammad Ali has deposed that on 20.04.2006 he along with Loung Mangrio was going to the village of Punjabi community, the accused persons occupied the subject land. In cross-examination he has admitted that Juman Shah and Chuttal Shah had exchanged property with each other, even he does not know who was in last possession of the S.No.132 of deh Kandiaro.

13.    PW-3 DSP Abdul Hameed was called by the trial court for his evidence, who has deposed that neither had he conducted any sort of inquiry in the matter nor submitted the report in this matter even it does not bear his signature and also he had no knowledge about the matter. The report was also called from SHO PS Kandiaro, who has also admitted that he had not visited the disputed survey number and only prepared a report at the police station. The statement of the appellants was recorded under section 342 Cr. P.C and they denied the allegations levelled against them.

14.    The appellants filed F.C Suit No.84/2008 before the Court of learned Senior Civil Judge, Kandiaro for Specific Performance of Contract and Permanent Injunction u/o 7 Rule 1 CPC against the complainant Syed Chuttal Shah and Piyaro Khoso and others in respect of the subject land, subsequently the same was withdrawn through the statement, on the ground that afresh suit will be filed, subsequently, F.C Suit No.43/2012 was filed. The said suit proceeded and ultimately it was dismissed vide judgment dated 24.08.2019 followed by decree dated 29.08.2019 passed by learned Senior Civil Judge, Kandiaro. The appellants have challenged the said judgment and decree before the Court of learned District Judge, Naushahro Feroze by way of filing Civil Appeal No.279 of 2019 (Haji Sikander Ali and others vs. Syed Chattal Shah and others), which is pending adjudication.

15.    The preamble of this Act is only to protect the lawful owners and occupiers from their illegal or forcible dispossession and prevent them from the land grabbers/Qabza group or land mafia. In the instant case, there is the question in respect of the examination of the title of the parties. It is pointed out that it is the sole function of the Civil Court to give an authoritative decision with regard to the title of the property and the Criminal Court is not competent to give any finding qua title of the property. In such like cases, Criminal Court is simply required to examine the material available before it to form an opinion as to whether a prima facie case is made out for holding that the person who has complained about his dispossession was in lawful possession or owner because the words used in Section 3 of the Act are "owner" and "occupier" of the property. The word occupier has been defined in section 2(c) of the Act viz. "occupier" means the person who is in lawful possession of a property; the word owner is defined in section 2(d) of the Act viz. "owner" means the person who owns the property at the time of his dispossession, otherwise than through a process of law; and the word property has been defined in section 2(e) of the Act, as "property" means immovable property. Thus to attract the provisions of section 3 of the Act, the Court is required to examine as to whether the property was an immovable property; secondly that the person was the owner of the property or in its lawful possession. Thirdly, that the accused has entered into or upon the property unlawfully. Fourthly, that such entry is with the intention to dispossess i.e. ouster, evict or deriving out of possession against the will of the person in actual possession, or to grab i.e. capture, seize suddenly, take greedily or unfairly, or to control i.e. to exercise power or influence over, regulate or govern or relates to authority over what is not in one's physical possession or to occupy i.e. holding possession, reside in or something. The definitions of the above words have been drawn from Black's Law Dictionary and Concise Oxford Dictionary. Though all the four words carry somewhat similar meaning in general, but individually applicable to different situations, times, places and circumstances, therefore, they cannot be given one and same meaning as by doing that one or more words become redundant, which cannot be attributed to the Legislature.

16.    To examine the question of title in respect of the property, as already pointed out, the Court has to simply form an opinion as to whether prima facie any party is coming within the ambit of definition mentioned in section 3 of the Act and if the Court forms such opinion from the material placed before it, then the Court can proceed with the matter or otherwise, as the case may be.

17.    The similar procedure is being adopted by Magistrate while exercising powers conferred upon him u/s 145 of the Code, which is normally required to be adopted in these proceedings. In the instant case, the application was filed by the complainant party u/s 145 Cr. P.C, same was dismissed by the Deputy District Officer (Revenue) and it was admitted by the complainant in his cross-examination. In the instant case, the question of title of the property is already pending before the competent Court of civil jurisdiction before the filing of the complaint,

18.   In view of the above the instant criminal appeal is allowed. The impugned judgment dated 12.03.2016 passed by learned 1st. Additional Sessions Judge, Naushahro Feroze is set aside. The appellants Sikander Ali, Basheer Ahmed and Munir Ahmed are acquitted from the charges. The appellants are present on bail, their bail bonds stand cancelled and surety is discharged. Appellant No.1 namely Muhammad Azeem has died, therefore, the proceedings of the appeal against him already stand abated vide order dated 28.10.2019. The case law relied upon by learned counsel for the complainant is quite different from the facts and circumstances of the present case.

Judge

 

ARBROHI