IN THE HIGH COURT OF SINDH,BENCH AT SUKKUR

Criminal Appeal No. S-56 of 2019

Appellant: Ehsan @ Ehsanullah, through Mr. Mehfooz Ahmed Awan, Advocate.

Respondent No.1: Mst. Gulzar Begum Solangi through Mr. Wajid Ali Vaseer, advocate

The State: Through Mr. Khalil Ahmed Maitelo,

Deputy Prosecutor General.

Date of hearing: 07.03.2022.

Date of decision: 18.04.2022

J U D G M E N T

ZULFIQAR ALI SANGI, J:- Through this appeal, appellant Ehsan @ Ehsanullah, has challenged the Judgment dated 19.04.2019, passed by learned Sessions Judge, Sukkur, in IDA Complaint Sessions Case No.39/2016 re-“Mst. Gulzar Begum v. Ehsan @ Ehsanullah and others”, under Section 3, 4 & 7 of Illegal Dispossession Act, 2005, whereby the appellant was convicted for the offence u/s 3(2) of Illegal Dispossession Act, 2005 and sentenced to suffer R.I for three years and to pay fine of Rs.10,000/- and so also to pay amount of Rs. 20,000/- to be paid to complainant as compensation as provided under Section 544-A Cr.P.C, in case of default he would suffer simple imprisonment for two (2) months more. However, benefit of Section 382(b) Cr.P.C was extended to him.

2. Succinctly the facts of the prosecution case are that complainant Mst. Gulzar Begum was residing with her children alongwith her husband Arbab Ali Solangi in the disputed house situated near Kashana Muhammad Ali, Adam Shah Colony, Sukkur but after the death of her husband, on 03.2.2016 in the night at 2300 hours, she was informed by neighbors that accused Nisar (the brother of complainant’s husband) and Abdul Rehman (husband of sister of complainant’s husband) have sold out the disputed house to accused Ehsan Chachar and have also robbed 20 Tolla Gold and 20 sewed and un-sewed clothes. The complainant came back and found the outer door of the house locked with different lock. Due to night time she came back to her daughter's house and on 04.2.2016 she approached to P.S “A” Section, Sukkur for registration of the complaint. She also approached P.S Garden but could not succeed and police did not receive her complaint and then she filed above complaint by stating that she and her children are exclusive owners of the disputed house and the accused have illegally dispossessed her by selling the same, for which, they had no authority.

3. On the above complaint, the reports were called from Mukhtiarkar Revenue, Sukkur and SHO Police Station “A” Section, Sukkur and thereafter the trial court took cognizance of offence. A formal charge was framed against the accused to which he pleaded not guilty and claimed for trial.

4. To prove the charge against the appellant complainant Mst. Gulzar Begum examined herself at Ex.10, she produced original payment of water charges, Slip dated 20.1.2018 issued by Municipal Corporation, Sukkur Original Sui Gas Bill for September 2018 in the name of her husband Arbab Ali, original electricity bill for the month of December, 2018 in the name of Arbab Ali at Ex. 10-A to 10-C. The Photostat copy of list of joint survey of Municipal and Railway Land at Adam Shah Colony, Katchi Abadi. She has also examined PW Abdul Rasheed at Ex.11 and the side of complainant was closed vide statement dated 19.5.2018. The case was then transferred to the Session Judge Sukkur vide order dated 12.11.2018 passed by this court in Crl. Transfer application No.S-118 of 2018.

5. The statement of accused was recorded under Section 342 Cr.P.C at Ex.13, wherein he denied the allegations of the complainant and claimed himself to be innocent. However, neither he examined himself on oath nor any witness in his defence. Learned trial court after hearing the parties convicted and sentenced the appellant as stated above.

6. Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt; that learned trial Court has failed to properly assess the evidence brought on record by the prosecution; that the impugned judgment is based on surmises and conjunctures; that the complainant is neither lawful owner nor the lawful occupier of the said property; that the impugned Judgment is against the law, facts, principles of natural justice and equity; that learned trial court has erred in convicting the appellant by not taking into consideration the entire material and thus the impugned Judgment is liable to be set-aside. He finally prayed that by extending benefit of doubt, the appellant may be acquitted.

7. Learned Counsel representing the Respondent No.1 (Complainant), at the very outset, contended that the property in dispute was occupied by the Respondent No.1 alongwith her husband and admittedly utility bills for the said property are also in the name of her husband Arbab Ali. He further contended that the disputed property is situated in Katchi Abadi and the joint survey of the area where the suit property exits was conducted and in this regard attested copy was produced by the Respondent wherein name of her husband is mentioned at serial No.9. It is further argued by learned Counsel that when Respondent No.1 went to her daughter’s house, appellant had forcibly and illegally occupied the house of Respondent No.1 and she approached the concerned PS but no action was taken and the Respondent, being compelled, knocked the door of Court for seeking possession of disputed house by filing complaint under Illegal Dispossession Act, 2005. He lastly submitted that the learned trial Court has rightly convicted the appellant and passed the well-reasoned judgment, which does not require any interference and is liable to maintained.

8. Learned DPG appearing for the state has supported the impugned judgment and further contended that the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt by producing oral as well as documentary evidence; that the learned trial court has rightly convicted the appellant and he does not deserve any leniency; that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court.

9. I have heard learned counsel for the parties and have gone through the material available on record with their able assistance.

10. On reassessment of the entire evidence produced by the complainant party and documents so produced / exhibited in evidence, reflects that the complainant herself was an encroacher and not a lawful occupier of the dispute house. The report of joint survey of Railway and Municipal land also reflects that it was not the property of complainant and the same was either property of Railway or Municipal. Such even otherwise is not clear from the report exhibited by the complainant. The intention of legislature by promulgating the Illegal Dispossession Act 2005 was to protect the lawful owners and occupiers of immovable property from their illegal and forcible dispossession therefrom by the property grabbers. There is no title in the name of complainant or her husband and she admittedly has occupied the land of Railway or Municipal, therefore such act cannot be protected.

11. The report of Mukhtiarkar vide letter No.212 dated 17.8.2016 and the report of SHO Police Station “A” Section vide letter No. 1615 dated 22.8.2016 are available on record. Mukhtiarkar Revenue City Sukkur in his report submitted that property in question is built up on Katcha Patta only on possession basis but there is no any record of right of the said property. He has reported that the said property remained in possession of following persons:

1) Arbab Ali S/o Peer Bux (The husband of Complainant)

2) Nasir S/o Peer Bux

3) Shaman S/o Peer Bux

4) Abdul Rehman S/o Shahdad Khan Sandilo (The brother-in-law of the husband of Complainant)

12. The Mukhtiarkar further reported that the suit property at present is in deplorable/ damaged condition there is boundary wall with old construction. He also reported that Mst. Gulzar Begum after three days of death of her husband Arbab Ali had gone to the house of her daughter and then she never remained in possession of the disputed house since about 10/12 years but she was visiting in day hours after 5/6 months in the house of Nasir who was living in the suit property. He further reported that Nasir Ali Solangi, nephew of husband of complainant Mst. Gulzar Begum sold out the suit property to one Sanaullah Chachar in sum of Rs.19,00,000/- (rupees nineteen lacs) and handed over its possession to Sanaullah S/o Muhammad lshaque on 30.01.2016. Mukhtiarkar has denied the allegations of Illegal Dispossession of the complainant.

13 SHO Police Station “A” Section in his report 22.8.2016 mentioned that the disputed property is Katcha Patta not
entered in the record of right but Utility Bills of said disputed
property are in the name of deceased Arbab Ali (husband of complainant). SHO at the end of his report opined that proposed accused Nasir Solangi and Abdul Rehman alias Gulsher Sandilo are in joint possession over the disputed property. SHO also recorded statements of complainant Mst. Gulzar Begum, Abdul Rasheed, Sarwar Javed both by case Bhatti, Ehsanullah Chachar, Muhammad Yousif Shaikh and so also submitted the Photostat copy of agreement of sale in respect of the disputed property dated 30.1.2016 allegedly executed by Muhammad Nasir Solangi in favour of Sanaullah S/o Muhammad Ishaq Chachar (brother of present accused Ehsan Chachar.

14. From the above discussion it establishes that the complainant herself is an encroacher and not a lawful owner of the disputed house as there is no title document in the name of complainant or her husband and it is either the property of Railway or Municipal. Further the property in question was not exclusively in possession of complainant’s husband Arbab Ali, as besides her husband, Nisar, Shaman and Abdul Rehman who are relatives of her husband were also residing in the said property while nothing has come on record that appellant has forcibly dispossessed the complainant or occupied the subject property which is also evident from the evidence of witness Abdul Rasheed who admitted in his cross-examination that “it is correct to suggest that I had not seen any of the accused including Ehsan Chachr at the time of dispossessing to complaint or occupying upon his husband’s house.” The report of Mukhtiarkar also shows that complainant Mst. Gulzar was neither residing in the said property since about last 10-12 years nor she was illegally and forcibly dispossessed by any person and the proposed accused/appellant Ehsan has no concerned with the said property nor he is in its possession. It is established law that the prosecution is duty bound to establish the case against the accused persons and weak defence of accused or taking more than one defence is no ground to shift burden of proving the case upon the accused. Therefore in my view the complainant has failed to establish her case against the appellant. Resultantly, the Appeal is allowed, the impugned Judgment is set-aside and appellant is acquitted of the charge. Appellant is present on bail, his bail bond stands cancelled and surety discharged.

15. The appeal is disposed of in the above terms.

J U D G E

Suleman Khan/PA