IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acquittal Appeal No.S-59 of 2021

Appellant: Syed Jan Ali Shah through

Mr. Shabbir Ali Bozdar, Advocate

Respondents No.1 & 2: Soomar Jagirani and another

Through Mr. Amanullah G. Malik,

Advocate

Respondent No.3: Syed Naseem Shah through

Mr. Muhammad Junaid Akram,

Advocate

State: Through Mr. Zulfiqar Ali Jatoi,

Additional Prosecutor General

Date of hearing: 18.03.2022

Dated of order: 23.05.2022

J U D G M E N T

Zulfiqar Ali Sangi, J: Through this Criminal Acquittal Appeal, the appellant has assailed judgment dated 27.04.2021 (impugned herein), passed by learned Additional Sessions Judge (H), Sukkur, in Sessions Case No.928/2014, arising out of Criminal Complaint No.20/2011, filed by Appellant under Section 3 & 7 of Illegal Dispossession Act, 2005, whereby Respondents have been acquitted of the charges.

2. Brief facts of the instant complaint filed by complainant Jan Ali Shah are that the property bearing C.S No. 2031/1-10 measuring 15168-7 sq yards belongs to the complainant and such entry in the city survey record appears in his name. It is further stated that there is G.T road in front of said property, showroom on the southern side, open space towards west measuring about more than 5000 sq yards and rock in the northern side, which too belongs to complainant and they have donated an area of 17623 sq yards for Graveyard. It is further stated that on 17.04.2011 in the dark hours of night above named respondents forcibly occupied an area of approximately 4300 sq yards on the western side belonging to the complainant, then on 19.04.2011 in the morning complainant while going to Sukkur saw some persons excavating over the complainant's plot, he asked them that why they are excavating the land, on which one of them disclosed that Soomar Jageerani and Syed Naseem Shah had given them boundary marks for construction, therefore the complainant approached to above named accused but they refused to vacate the possession of the said property, thus the complainant moved applications to various authorities, but of no avail, hence this complaint.

3. After taking cognizance of the instant complaint, the case papers were supplied to the accused at Ex.01 and the charge was framed against them at Ex.2, to which they pleaded not guilty and claimed to be tried vide their pleas recorded at Ex.3 to 5 respectively.

4. In order to prove the case complainant Jan Ali Shah was examined as PW 01 at Ex. 6, who produced an original extract from a property registered card and copy of the direct complaint at Ex. 6/A and 6/B respectively. PW 02 son of complainant namely Aoun Muhammad Shah examined at Ex.7. PW 03 SHO Ayaz Ali was examined at Ex. 08, who produced letter and report at Ex.8/A & 8/B respectively. PW 04 Mukhtiarkar Zahid Ali Shah was examined at Ex.09, who produced the report at Ex. 09/A. Then advocate for the complainant closed the side vide his statement at Ex.10.

5. Statements of accused U/S 342, Cr.P.C were recorded at Ex.12 to 14 respectively, wherein they have denied the allegations of the complainant and stated that they have not illegally occupied the property of the complainant and submitted copies of F.C suits and other documents, learned Advocate for accused has also submitted a statement on behalf of the accused at Ex.15, stating therein that all the accused have nothing to do with C.S No.2031/1-10, neither they have occupied the above said city survey number, nor they have illegally dispossessed the complainant and prayed for their acquittal. They further stated that no alleged incident has been taken place. However, neither examined themselves on oath nor produced any witness in their defence.

6. Learned counsel for the Appellant/Complainant, at the very outset, submitted that the impugned judgment is bad in law; besides against the facts and circumstances of the case; that the impugned judgment has been passed by learned trial Court in hasty manner without considering the material; that the learned trial Court wrongly gave weight to civil suit filed by the appellant/complainant though the said suit was withdrawn by the appellant as the same was not filed for declaration and the learned trial Court without applying its judicious mind acquitted the Respondents from the charges; that the property in question is still in illegal and unlawful possession of the private Respondents without any title documents; that the Respondents are land grabbers and inspite of having sufficient material against the Respondents, learned trial Court did not consider the relevant aspects of the case; that it is matter of record that the property is still entered in the name of present appellant in revenue record but the Respondents have illegally and unlawfully occupied the same and committed offence for which they are liable to be convicted in accordance with law. In the last, he prayed that instant appeal may be allowed, impugned judgment be set aside and respondents may be convicted for the charges.

7. Conversely, learned Counsel representing the private Respondents No.1 and 2 submitted that the learned trial Court has rightly acquitted the Respondents from the charges as the appellant has no title document of the property in question; besides appellant had filed civil suits before learned IInd Senior Civil Judge, Sukkur but in both suits, the title of ownership of the appellant had been declined. Learned Counsel further argued that the appellant has miserably failed to prove the case of illegal occupation against the Respondents, therefore, the instant appeal is liable to be dismissed as the same is devoid of any merit. Lastly, he submitted that the respondents have filed their affidavits to the effect that they do not have the disputed property and they have nothing to do with the said property.

8. Learned Counsel appearing for Respondent No.3 contended that neither Respondent No.3 has illegally occupied the plot in question nor any of the witnesses have supported the version of the appellant regarding illegal occupation by the respondent No. 3, therefore, the learned trial Court has rightly acquitted the Respondent No.3 as appellant could not prove his case against the Respondents beyond a shadow of any reasonable doubt hence the present appeal may be dismissed.

9. Learned DPG representing the State adopted the arguments advanced by learned Counsel for the Respondents and further submitted that the learned trial Court has rightly passed the impugned judgment by considering entire material available on record hence it requires no interference by this Court.

10. I have heard the arguments of learned Counsel for the parties and have perused the record with their able assistance.

11. On perusal of the impugned judgment it is observed that the trial court has acquitted the respondents based on evidence produced by the appellant and on the statement of respondents in respect of the denial of their possession over the subject property. The trial court in para No. 15 of the impugned judgment has observed and decided that “However it is worth to mention that, as per their statement, they would not be entitled to the any portion of the said plot bearing C.S No. 2031/1-10 and they would not claim their ownership (as per their statement).” It is clear from the evidence produced by the appellant that the respondents were not available at the time when they (appellant party) went to the site, where some persons were making construction and the appellant party was informed by them that they are making construction on the behest of respondents. There appears no direct evidence against the respondents for dispossessing the appellant, therefore learned trial court has rightly acquitted them while giving the benefit of the doubt. The respondents also filed their affidavits before this court and stated that they are not in possession of the disputed plot. The respondents through their affidavits also stated that they have not dispossessed the appellant from the said plot. Therefore, the acquittal of the respondents by the trial court is maintained.

12. Learned trial court while deciding the prayer of the appellant for possession of the plot in question under section 8 of the Illegal Dispossession Act, 2005, has observed as under:-

16. So for the prayer of the applicant regarding vacant possession of the said plot as provided by section 7/8 of Illegal Dispossession Act 2005 is concerned, in this regard the complainant himself has admitted in his evidence that he has filed F.C Suit No.03/2004 and F.C Suit No.125/2004 before the Court of learned lInd Senior Civil Judge Sukkur on the said property/plot for compensation, but in both the suits the title of ownership of the complainant have been declined and both the suits of plaintiff have been dismissed by the said Court of learned lInd Senior Civil Judge Sukkur vide judgments dated 29.05.2009, although the said judgments were impugned before the appellate forum and both the suits were remanded by the Court of learned Vth Addl: Sessions Judge Sukkur vide judgments dated 7.05.2010, for fresh decision, which show that still title of ownership of the complainant on the said land/plot is under adjudication and have not been clarified.

17. I have also gone through the statement, submitted by learned advocate for complainant during arguments, annexed with coupled documents, wherein the learned advocate has filed true copy of Constitutional petition No. 235/2014 of Honorable High Court of Sindh Bench at Sukkur regarding Syed Naseem Abass Shah vs. Deputy Commissioner Sukkur & others, wherein the said petitions at para No.6, it is mentioned as under:-

“That in the year 2008 the respondents No.3 called petitioner and informed him that the inquiry regarding the bogus entries in city survey record has been completed and such fraud was proved against the said Syed Jan Ali Shah, and he is awaiting for the response from his high ups or the cancellation of bogus entries in city survey record, the respondents No.3 also directed the petitioners to approach the office of respondent No.2, the petitioner then approached to the office of respondent No.2, where he was handed over copy of enquiry report addressed to the respondent No. l for taking necessary action, the relevant portion of the enquiry in respect of C.S No. B-2031/1 is reproduced as under:

"As per ruled card, first entry has been kept in the names of Bibi Ghulam Zuhra; 2. Bibi Taj Khatoon, 3. Bibi Ghulam Zainab and after wards on 29.07.1944, the Khata changed in favor of Syed Sardar Ali Shah S/o Muhammad Taqi Shah through oral statement. Again on 07.08.1958, the khata has been changed in favor of Syed Jan Ali Shah S/O Sardar Ali Shah through oral statement of gilt from Sardar Ali Shah. The city surveyor Rohri has reported that vouchers of said entries dated 29.07.1958 are not available on the office record. The rule card available on record is original and first entry made in favor of M/S Bibi Ghulam Zuhra; Bibi Taj Khatoon, Bibi Ghulam Zainab apparently looking to be bogus and false and same has been kept by deleting the original name with ink remover and visible signs are available in ruled card of rubbing the previous name and later on this entry has been kept in favor of above three ladies, in the enquiry register for the year 1920, after chalta entry no.10, the chlata entry No. 10-A has been incorporated in the vacant place in favor of aforesaid three ladies which is different one and written with another writing another ink. There are also no vouchers of entry dated 29.07.1944 made in C.s record in favor of Syed Jan Ali Shah and entry dated 07.08.1958 made in favor of Syed Jan Ali Shah. The plaintiff Syed Jan Ali Shah has sub divided an area (94230-04) sq yards and formed new C.S No. B-2031/1-1 to 11 in his favor. On spot there is grave yard exists in the said C.S Number in area of about 1/3^rd and remaining area left and may presumed meant for graveyard. The plaintiff Syed Jan Ali Shah with collusion of C.S office staff Rohri made present fraud in the C.S number. In fact the present entire C.S number is government property and meant for Graveyard AS per combined map of Rohri town for the year 1921, the said number has been entered in the map as Hillock that means Government property.

The DO Rohri under his letter NO. DDO/ 166 dated 14.03.2008 has referred the matter to EDO (Rev) Sukkur for taking notice of this fraud through suo-moto action, and cancelled these entries after completion of formal requirements”.

18. In this regard another complaint No.24/2011 filed by one Shabir Ali Pathan against Syed Naseem shah and Syed Jan Ali Shah, before learned Addl: Sessions Judge Sukkur, in the said complaint the complainant Shabir Ali Pathan has stated that the said property originally belongs to Railway department bearing Survey No.10(5-38) acres at Deh & Taluka Rohri and at that time the plot was in physical possession of Pakistan Railways, though the said complaint of the Shabbir Ali Pathan was dismissed, but a shadow of doubt upon the title of ownership of said properly still remains unresolved.

19. In this regard I have also gone through the report of DDO Revenue dated 14.03.2008 to the EDO (Revenue) Sukkur, produced by the accused with their statement u/s 342 Cr.P.C, wherein also the DDO (Revenue) Sukkur has produced the said report, mentioned above in Constitutional petition No. 235/2014 of Honorable High Court of Sindh Bench at Sukkur regarding Syed Naseem Abass Shah vs. Deputy Commissioner Sukkur & others.

20. In view of above mentioned facts and circumstances, when still the title of the ownership of the complainant is under sword and has not yet been clarified by any proper forum of Revenue department or by the civil Court, thus, in the circumstances the complainant would not be entitled to get vacant possession of the said plot/land in question on the title of ownership as provided u/s 7/8 of Illegal Dispossession Act 2005.

13. It is observed that the trial court in para No.16 reproduced above has given wait to the Civil Suit filed by the appellant for the claim of compensation which though earlier decided against the appellant however on appeal the said judgment was set aside by the appellate court and case was remanded for fresh decision in accordance with law and on remand the said suit was withdrawn by the appellant. Since the suit filed by the appellant was withdrawn and earlier judgment of the civil court was set-aside therefore the same cannot be relied upon in favour or against any of the parties.

14. Learned trial court has also relied upon the report of DDO (Revenue) dated 14-03-2008 forwarded by him to the EDO (Revenue), Sukkur for taking suo-moto action on the entries in favour of the appellant and for cancellation and the same report is reproduced and discussed by the trial court in para No.17,18,19 and 20 of the impugned judgment and on such report learned trial court has declined the prayer of possession under section 8 of ibid Act and further observed that the ownership of the complainant/ appellant is under the sword and has not yet been clarified by any proper forum of Revenue department or by the civil court. The appellant has filed a statement dated:18-03-2022 along with certain documents including the reference on the basis of the above report which reflects that the EDO (Revenue), Sukkur has declined to cancel the said entries in favour of the appellant and passed an order which reads “Old entries cannot be disturbed. Filed.” In view of the order passed by the EDO (Revenue), Sukkur on the report of DDO (Revenue), the claim of bogus entries is not in the field and the reference has been filed. The order of EDO (Revenue), Sukkur has not been challenged by any of the parties which attained finality and the entries in favour of the appellant remained intact. In my view, the trial court while passing the impugned judgment has failed to appreciate all these facts.

15. Learned trial court has also considered the said report while giving reference to the Constitutional Petition No.2351 of 2014 filed by the respondent No.3 before this court which was not pressed by the respondent No.3 on 01-01-2020 and was not decided on merits. Learned counsel for the appellant also placed on record a memo of the said petition and report of the Assistant Commissioner Rohri in respect of the status of the disputed plot. The report of the Assistant Commissioner also reflects that on the basis of the report of the then DDO (Revenue), the EDO (Revenue), Sukkur passed his marginal minutes “Old entries cannot be disturbed. Filed.” It is observed that the trial court while deciding the criminal case has also exercised the jurisdiction of a civil court and gives findings on the title of the appellant. It is settled by now that the scope of the Illegal Dispossession Act, 2005 is very limited and the court exercising powers under section 3 of the Act, was not competent to give any finding with regard to the authenticity of a document as the said Act confines the trial court to give finding only on illegal dispossession and it is not the function of such court to decide or adjudicate upon the title of the property. Reliance can be placed on the cases of Muhammad Saleh and 2 others v. Province of Sindh through District Coordination Officer and 6 others (PLD 2015 Sindh 14), Gulzar Ali and another v. Station House Officer, P.S. Kandiaro and others (P L D 2012 Sindh 390) and Rahim Tahir v. Ahmed Jan and others (2007 P.Cr.L.J 1920).

16. In view of the above position I am of the considered view that the entries in favour of the appellant are still in the field and have not been cancelled by any of the authorities. The respondents are denying their possession and are not claiming any right over the disputed plot therefore the findings of the trial court in respect of the doubt in the ownership of the appellant as has been held in Para 16 to 20 of the impugned judgment are not sustainable under the law and are set aside. The appellant is at liberty to approach the revenue authorities or any other forum available to him under the law for the possession of the subject plot. Since the findings of the trial court in respect of title or ownership of the appellant in the impugned judgment are set aside therefore whenever the appellant approaches the legal forum for the possession, his case is to be decided in accordance with the law without taking any influence of said findings of the trial court.

17. The Acq. Appeal is disposed of in the above terms.

J U D G E