THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
(Criminal Appeal No.S-43 of 2017)
Appellants: Ashique Ali Khoso and others
Through Mr. Habibullah G. Ghouri, Advocate.
Complainant: Nawab Ali Peerzado through M/S.Asif Ali Abdul Razzak Soomro & Ashfaque Hussain Abro, Advocate(s).
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
(Crl. Revision Application No.S-25 of 2017)
Applicant: Nawab Ali Peerzado through M/S.Asif Ali Abdul Razzak Soomro & Ashfaque Hussain Abro, Advocate(s).
Respondents: Ashique Ali and others through Mr. Habibullah G. Ghouri, Advocate.
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
Date of hearing: 06.03.2023.
Date of decision: 17.03.2023
JUDGMENT
ZULFIQUAR ALI SANGI, J;- Through this common judgment, I intend to dispose of Criminal Appeal filed by appellants/accused, which is directed against the Judgment dated 03.05.2017, passed by learned 1st Additional Sessions Judge, Mehar, in Sessions Case No.290 of 2011 (Re-Nawab Ali v/s. Ashique Ali and seven others) for the offence punishable under Section 3 of Illegal Dispossession Act, 2005, whereby they were convicted and sentenced to undergo R.I for a period of one year with fine of Rs.50,000/- (Rupees Fifty Thousands only) each to be paid to the complainant and in default thereof, to suffer S.I for three months more. Besides this, Criminal Revision Application has also been preferred by the complainant for enhancement of sentence awarded to the accused.
2. Brief facts of the case as unfolded in the complaint filed by the complainant are to the effect that a land bearing block No.368 area 3-35 acres situated in Deh Nau Goth, Taluka Mehar, District Dadu, was Government Naqabooli land which was under occupation of the complainant, allotted by the Collector District Dadu, vide allotment order dated 09.07.2011 and entry No.27 was kept in record of rights in favour of the complainant. The accused started litigation with the complainant by filing F.C.Suit No.7/2022 before the Court of learned Senior Civil Judge, Mehar, which was tried and dismissed vide Judgment and Decree dated 27.05.2004. The said Judgment with Decree challenged before the appellate forum was also dismissed by learned Additional District Judge, Mehar vide Judgment dated 12.06.2006, which was challenged in Civil Revision Application before this Court, but it was also dismissed vide order dated 26.09.2007. It is alleged that after dismissal of Civil Revision, the accused remained silent but on 24.02.2011 they attacked upon the land of the complainant and cut away standing trees and forcibly occupied it, for which F.I.R was registered and the accused persons vacated the land in question. Again on 10.03.2011 the complainant was available on his land when he saw accused (1) Ashique Ali, (2) Abdul Hameed, (3) Ghulam Rasool, (4) Faiz Muhammad, (5) Mehmood, (6) Darya Khan, (7) Gul, (8) Qasim and (9) Abdul Lateef, all by caste Khosa, armed with deadly weapons came over there and forcibly occupied the land in question and issued threats of dire consequences to the complainant. Therefore, in order to save his life and dignity, the complainant disappeared from the scene and filed such complaint against the appellants/accused.
3. After completion of formalities, a formal charge was framed against the appellants/accused, to which they pleaded not guilty and claimed trial. During pendency of case, accused Faiz Muhammad was reported to be expired vide statement of process server recorded and the proceedings against the said accused were abated vide order dated 03.09.2014.
4. In order to substantiate the charge against the appellants/accused, the complainant examined himself at Ex.13, he produced (i) true copy of order passed by the Deputy Commissioner Dadu at Ex.13-A, (ii) allotment order at Ex.13-B, (iii) copy of form K-3 at Ex.13-C, (iv) copy of Judgment and Decree passed by Senior Civil Judge, K.N.Shah at Ex.13-D, (v) Copy of Judgment passed by District and Sessions Judge, Dadu in Appeal No.60/2004 at Ex.13-F, (vi) copy of Judgment passed by this Court in Civil Revision No.44/2006 at Ex.13-G, (vii) true copy of F.I.R. No.2/2011 at Ex.13-H, (viii) complaint under section 3 of the Act, 2005 at Ex.13-I and (ix) Statement of Complainant recorded during P.E at Ex.13-J. Thereafter, side of the complainant was closed by learned Advocate at Ex.14.
5. The appellants/accused in their statements recorded U/S.342 Cr.PC at Ex.15 to 23, denied the allegations leveled against them and pleaded their innocence, however, neither they examined themselves on oath nor adduced any evidence in their defence.
6. The learned trial Court on appraisal of the evidence brought on record and hearing counsel for the parties convicted and sentenced the appellants/accused, as discussed above.
7. Learned counsel for the appellants/accused contended that the impugned judgment passed by the learned Trial Court is illegal, unlawful and based on malafide without lawful authority and is against the principles of natural justice, equity and law of the land; that the learned Trial Court has failed to consider that the dispute in between the complainant and the appellants/accused is purely of civil nature and the object and the provisions of the Act, 2005 are not attracted at all; that there had been long standing dispute between the parties over the landed property and same is admitted; that the complainant has failed to establish before the Courts of civil jurisdiction that he is entitled for restoration of possession of the land; that looking into the peculiar facts and circumstances, the complainant had to file civil suit for possession and there is absolutely no justification to award possession in matters of civil nature by way of entertaining the complaints under Illegal Dispossession Act; that case of the appellants/accused is that they have no concern with survey number 368 of deh Nau Goth Taluka Mehar and their case is that they are residing in village Gul Khoso which is a sanctioned village and it is in Muhag of survey number; that the learned trial Court has failed to consider that Na-qabooli land was allotted to the complainant on 09.07.2011 but he lodged the complaint on 28.03.2011 even before the date of allotment when neither he was owner of the land in question nor he was dispossessed; that the mandate of Illegal Dispossession Act, 2005 is to safeguard the rights of the lawful owner and bonafide possessor of immovable property from the land grabbers and the provision of this act only comes when incident of Illegal Dispossession occurs and recourse to the provisions of this act has absolutely no concern and applicability so as to facts and circumstances of present case are concerned; that it is the case of misreading and non reading of the evidence; that the impugned judgment is not sustainable in law, therefore, he prays that the same may be allowed by setting aside the conviction and sentence awarded to the appellants/accused by the learned trial Court.
8. Learned counsels for respondent No.2/complainant has submitted that the appellants/accused have not denied the ownership of the complainant; that the appellants/accused have not established that they are in lawful possession of the disputed land; that the learned trial Court while convicting the appellants/accused has taken lenient view and convicted and sentenced the appellants only for one year; therefore, he filed Criminal Revision Application for enhancement of sentence awarded to the appellants/accused. Whereas, learned Additional Prosecutor General for the State argued the case in same line as argued by the learned counsel for respondent No.2./complainant and supported the impugned judgment while submitting that the instant appeal is without merits and is liable to be dismissed.
9. I have given due consideration to the arguments advanced by the learned counsel for the parties and have gone through the material available on record with their able assistance.
10. The meticulous res-assessment of the material brought on record is entailing that the entire case is hanged upon sole evidence of the complainant, who in his evidence has tried to support the version of his complaint but when his evidence and material brought on record scanned thoroughly, was found coupled with material infirmities. In that the complainant in his examination-in-chief deposed that on 10.11.2011, again all the accused persons duly armed with weapons at about 11.00 a.m, time again came at land and occupied the land in dispute, constructed the straw built shed on the disputed land and disclosed that it is their village and restrained him not to come again but his version is in conflict with his own complaint wherein he has stated that the opponents did not remain silent but again on 10.03.2011, he was available on his land, when at about 10.00 a.m he saw opponents Ashique Ali, Abdul Hameed, Ghulam Rasool, Raiz Muhammad, Mehmood, Darya Khan, Gul, Qaim and Abdul Latif all by caste Khoso, all armed with pistol, guns and rifle, came on the above mentioned land and they forcibly made aerial firing and also ousted him from the land and declared that they have forcibly occupied the same and issued threats to him that if again he tried to come on the land, they will kill him. If the version of the complainant adduced in his evidence at trial is believed to be true then the inconsistency as mentioned in his complaint has led his entire evidence at stake, which itself is sufficient to demolish the whole case and rendered it highly doubtful. This piece of evidence further suggests that the complainant has tried to prove his case by making dishonest improvements. The Honourable Supreme Court of Pakistan in case of Muhammad Mansha v. The State (2018 SCMR-772), has held as under:-
“Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that whenever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafique Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474).”
The Honourable Supreme Court of Pakistan in case of Muhammad Mansha (supra) also held as under:-
“In that eventuality, the conviction upon the statements of the witnesses who, in the assessment of the High Court, made dishonest improvements and their divergent stances in the FIR and the private complaint made them doubtful then there was no legal justification to convict the appellant Muhammad Mansha on the same set of evidence without independent corroboration conspicuously lacking in the instant case, as held by this Court in the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi v. The State (2000 SCMR 1758), Iftikhar Hussain and others v.The State (2004 SCMR 1185), Akhtar Ali and others v.The State (2008 SCMR 6), Muhammad Ali v.The State (2015 SCMR 137), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142) and Shahbaz v. The State (2016 SCMR 1763). The above principle has been appreciated by the High Court in the instant case, but erroneously convicted the petitioner against the said settled principle.”
11. Over and above this, the complaint was filed by the complainant with considerable delay of fifteen days of his being dispossessed from the land in question, for which he has failed to furnish any satisfactory explanation, which obviously reflects that the same was filed with due deliberation and consultation. Further, there is no report of Mukhtiarkar concerned who could have justified the ownership of the disputed land. Furthermore, the learned trial Court has also failed to examine the concerned SHO who conducted inquiry into the matter and submitted such report. In addition to this, the complainant also did not produce any of his witness to substantiate the claim of his being dispossessed from the disputed land at the hands of the accused. All these improbabilities in the case has created further dent in the case and rendered the entire story of the complainant to be doubtful.
12. It is observed that the rule of benefit of the doubt is essentially a rule of prudence which cannot be ignored while dispensing justice following the law. The conviction must be based on unimpeachable evidence and certainty of guilt and doubt arising in the prosecution case must be resolved in favour of the accused. The said rule is based on the maxim. "It is better that ten guilty persons be acquitted rather than one innocent be convicted" which occupied a pivotal place in the Islamic Law and is enforced strictly because of the saying of the Holy Prophet (PBUH) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent". It is well settled by now that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is casted upon the accused to prove his innocence. It has also been held by the Honourable Superior Courts that the conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In case of Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court that "In the criminal trial it is the duty of prosecution to prove its case against the accused to the hilt, but no such duty is casted upon the accused, he has only to create doubt in the case of prosecution. "Honourable Supreme Court in another case of Shamoon alias Shamma v. The State (1995 SCMR 1377), held that "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his/their defence. Failure of prosecution to prove the case against accused, entitles him/them to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case. Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his/their plea in defence does not arise. "Reliance is also placed on case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).
13. From the above discussion it is evident that the prosecution has miserably failed to prove the guilt against present appellants beyond shadow of any reasonable doubt and it is a well-settled principle of law that for creating the shadow of a doubt, there should not be many circumstances. If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right. In this respect reliance is placed on the case of Muhammad Mansha v. The State (2018 SCMR-772), wherein the Hon’ble Supreme Court of Pakistan has held that:-
“4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v.The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)”.
14. For what has been discussed above, I have come to the conclusion that learned trial Court has not evaluated the evidence in its true perspectives and thus arrived at an erroneous conclusion by holding present appellants as guilty of the offence. Thus, the conviction and sentence recorded against them by way of impugned judgment could not be sustained, it is set aside. Consequently, the instant Criminal Appeal is allowed and the appellants are acquitted of the charged offence. Appellants are on bail granted to them under Section 426 Cr.PC, their bail bonds stand cancelled and sureties discharged. Office is directed to return the surety papers to sureties of the appellants, after proper verification and identification.
15. Since, the appeal of the appellants is allowed and they are acquitted, therefore, the listed Criminal Revision Application being devoid of merits is dismissed accordingly.
JUDGE.
.