THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No.S–57 of 2013
Appellants: Muhammad Ramzan, Abdullah alias Eidan, Sajjad, Ismail and Irshad Ahmed through Mr. Asif Ali Abdul Razzak Soomro, Advocate
Complainant: Baboo Ghulam Muhammad Pathan through Mr. Safdar Ali G. Bhutto, Advocate
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General
Criminal Revision No.S–54 of 2013
Applicant: Baboo Ghulam Muhammad Pathan through Mr. Safdar Ali G. Bhutto, Advocate
Respondents: Muhammad Ramzan Larik and 4 others through Mr. Asif Ali Abdul Razzak Soomro, Advocate.
The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General
Date of hearing: 14.11.2022
Date of decision: 14.11.2022
JUDGMENT
AMJAD ALI SAHITO, J:- The appellants by way of instant Criminal Appeal have impugned Judgment dated 30.09.2013, passed by learned Sessions Judge, Shikarpur in Sessions Case No.434/2010 (re- Baboo Ghulam Muhammad v/s. Muhammad Ramzan and 4 others) for offences punishable under Sections 3, 4 & 7 of the Illegal Dispossession Act, 2005, (hereinafter referred to as “the Act, 2005”) whereby the appellants have been convicted and sentenced for offence u/s 3(2) of the Act, 2005 to undergo R.I for (03) three years and to pay fine of Rs.25000/- each and in case they failed to make payment of fine to further undergo S.I for six months, they were also directed to pay Rs.1000/- (Rupees one thousand) per month in all Rs.38000/- as provided under section 544-A Cr.P.C. as compensation to complainant. The appellants were further directed to hand over / restore the possession of property mentioned above to complainant. The benefit of Section 382-B Cr.P.C was also extended to the appellants. Whereas the complainant filed Revision Application for enhancement of the sentence awarded to the appellants.
2. The facts in brief necessary for the disposal of instant Criminal Appeal are that complainant namely Baboo Ghulam Muhammad Pathan filed Direct Complaint under sections 3, 4 and 7 of the Act, 2005 on 06.08.2010, stating that one open plot No.11 attached to Dargah Ameen Shah Chisti, Shikarpur was allotted by the Auqaf Department to his late father Khair Muhammad on tenancy and after his death, the title of the said plot was changed in his name by the Administrator Auqaf Department, Sukkur and Larkana Divisions at Hyderabad vide Letter No.AUQ(A&S)/2002/424 dated 15.08.2002. The said plot was in his legal and lawful possession since 16.08.2002. Before that it was in possession of his father since last fifty years and they were regularly paying tenancy rent to Auqaf Department. It was further mentioned in the complaint that on 02.08.2010 the complainant was sitting in his otaq on the said plot alongwith witnesses Tariq Hussain, Abdul Ghani and Inayatullah when at 02:00 p.m. there came accused Muhammad Ramzan, empty handed, Abdullah alias Eidan, Sajjad and Irshad all three sons of Muhammad Ramzan having guns and Irshad having TT pistol, trespassed in his otaq, aimed weapons at him, extended threats of dire consequences, encroached upon his property and dispossessed him from otaq and Godown constructed on the said plot. The complainant approached the concerned Police Station for lodging of F.I.R., but they refused to do so then he filed Complaint in the Court of Sessions Judge for taking cognizance of the matter and restoration of the plot in question to him as well as punishment of the accused under the provision of the Act, 2005. After due notice the matter was assigned to the III-Additional Sessions Judge Shikarpur for disposal in accordance with law, on whose directions the reports were called from the DSP Headquarters and Administrator Auqaf Sukkur Zone at Hyderabad. The DSP vide his report No.8970 dated 18.09.2010 informed that he visited the site and met with Muhammad Ramzan Larik, who informed him that Plot No.12 was allotted to him where a rice husking machine was installed, its path leads from plot No.11, which is blocked by the complainant. In the report it was mentioned that plot No.11 was allotted to complainant by Auqaf Department while plot No.12 was allotted to the accused, when path of accused was blocked by the complainant, the accused broke wall from plot No.14 and occupied some portion of plot No.11. Whereas the Manager Auqaf Larkana in his report dated 20.10.2011 sent to the Administrator Auqaf Hyderabad, mentioned that plot No.11 was allotted to complainant for personal use, but he converted it as commercial plot and sold/sub-leased it to Muhammad Ishaque Malik without getting tenancy rights, for which he was liable to face legal consequences. He further added that plot No.12 was allotted to the respondents/accused and plots No.11 and 12 were not measured properly, resulted the dispute in hand. Thereafter, the complainant filed the instant Direct Complaint under Sections 3, 4 & 7 of the Illegal Dispossession Act, 2005, with the prayer that since the accused have trespassed into his otaq constructed on the said plot; 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.01, to which they pleaded not guilty vide their pleas were recorded at Ex.3 to 6, respectively.
4. The Complainant in order to prove his case, examined himself as witness No.-1 at Ex.7, he has produced Letter of Auqaf Department dated 15.08.2002, showing allotment of the plot in his name at Ex.7/A. He also produced copy of his complaint at Ex.7/B, Tariq Ahmed Shaikh as witness No.2 at Ex.8, Sikandar Ali Mangi witness No.3 at Ex.9, Abdul Ghani witness No.4 at Ex.10, Naseer Ahmed Shaikh witness No.5 at Ex.12, DSP Head Quarters Anwar Gopang witness No.6 at Ex.13, who produced his report at Ex.13/A, whereafter side of the complainant was closed vide statement at Ex.14.
5. The appellants in their statements recorded u/s 342 Cr. P.C denied the prosecution allegations by pleading with their innocence. They examined defence witness Ghulam Sarwar Soomro at Ex.20.
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 the Act, 2005 are not applicable in the instant case; 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 plot No.12 adjacent to plot No.11 allotted to them by the Auqaf Department, who put them in possession legally, therefore, they cannot be said to have illegally occupied the plot; that the Auqaf Department has legally allotted them plot No.12 adjacent to Plot No.11 but without demarcation. 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 subject 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]). He further stated that the learned trial Court by taking lenient view has awarded lesser punishment to the appellants/accused in this regard he has filed Criminal Revision Application tagged alongwith this Criminal Appeal for enhancement of the sentence awarded to the appellants/accused.
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 have perused material available on the record.
11. Admittedly, the complainant was allotted plot No.11 and the accused were allotted plot No.12 attached to Dargah Ameen Shah Chishti, Shikarpur by the Auqaf Department and infact neither the complainant is owner nor the accused as the plots are belonging to the Auqaf Department and the parties are lessee only. Per report of the DSP dated 18.09.2010 the Plot No.12 was allotted to Muhammad Ramzan Larik where a rice husking machine was installed, its path leads from plot No.11, which has been blocked by the complainant. In the report it was mentioned that plot No.11 was allotted to complainant by Auqaf Department while plot No.12 was allotted to the accused, when path of accused was blocked by the complainant, the accused broke wall from plot No.14 and occupied some portion of plot No.11. Whereas the Manager Auqaf Larkana in his report dated 20.10.2011 sent to the Administrator Auqaf Hyderabad, mentioned that plot No.11 was allotted to the complainant for personal use, but he converted it as commercial plot and sold/sub-leased it illegally to Muhammad Ishaque Malik without getting tenancy rights, for which he was liable to face legal consequences. He further added that plot No.12 was allotted to the accused and plots No.11 and 12 were not measured properly. The complainant in his examination in chief has stated that he changed the same plot in his name in the year 2002, but he has failed to produce any rent receipt or any order in his favour. It also transpires from the record that the complainant has not mentioned in his complaint or deposition the area of the subject plot. The complainant has also filed Suit No.13/2008, which is pending adjudication before the competent Court of law. The complainant has stated in his examination in chief that he was available in Otaq alongwith witnesses Tariq and Abdul Ghani and so also Inayatullah and accused trespassed in his otaq whereas witness Tariq Khan has deposed in his examination in chief that on 1300 hours some accused were present in the plot and were constructing wall over the plot. Seemingly, there appears no evidence of house trespass or land grabbing and there is pure dispute of civil litigation to be resolved by the Civil Court by adopting the appropriate course.
12. The preamble of the Illegal Dispossession 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.
13. 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.
14. 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.
15. In view of the above the instant Criminal Appeal is allowed. The impugned judgment dated 30.09.2013 passed by learned Sessions Judge, Shikarpur is set aside. Appellants Muhammad Ramzan, Abdullah alias Eidan, Sajjad, Ismail and Irshad Ahmed are acquitted from the charges. The appellants are present on bail, their bail bonds stand cancelled and surety is discharged. The case law relied upon by learned counsel for the complainant is quite different from the facts and circumstances of the present case. Consequently, the Criminal Revision Application filed by the complainant for enhancement of sentence awarded to the appellants/accused stands dismissed.
Judge
Manzoor