ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Acqtl. Appeal No.S-01 of 2020
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DATE |
ORDER WITH SIGNATURE OF HON’BLE JUDGE. |
1. For orders on office objection.
2. For hearing of M.A. No.5271/2020
3. For hearing of Main Case.
Appellant : Gul Hassan Mallah through Mr. Ghulam Dastagir A.
Shahani, Advocate.
Respondents : Abdul Hafeez & 03 others, through Mr. Muhammad
Afzal Jagirani, Advocate, along with respondents
No.1 and 4.
Date of hearing : 15.12.2023.
O R D E R.
Through instant appeal against acquittal the appellant has assailed the judgment dated 13.11.2019 penned down by learned II-Additional Sessions Judge, Mehar (trial Court) vide Sessions Case No.218/2015 re-Gul Hassan v. Abdul Hafeez & others, whereby after full-dressed trial the trial Court has acquitted the respondents from the charge of offence punishable u/s 3, 4 & 7 of Illegal Dispossession Act, 2005 (the Act).
2. In brief the facts of the case are that on 25.07.2014, in the morning time, accused Abdul Hafeez, Abdul Rehman @ Hajjan, Muneer, Muhammad Younis and two unidentified accused persons, illegally dispossessed complainant Gul Hassan Mallah on gunpoint from his landed property bearing Survey Nos.52 (5-24 acres) and 54 (5-25 acres), situated in Deh Qomi Charo, Taluka K.N. Shah, District Dadu. Hence, this complaint.
3. Learned Counsel for the appellant submits that property in dispute was originally allotted to one Abdul Ghafoor son of Yaseen Rajput through claim. Later, after keeping necessary entries/mutations in revenue record of rights said Abdul Ghafoor had sold out the same to appellant through registered sale deed (page-74 of Court file) on 07.04.1981 vide registered sale deed No.623, therefore, the appellant become purchaser/bonafide owner of the property in dispute by virtue of registered sale deed. He next submits that said registered sale deed was not assailed by any of the parties; however, one Abdul Ghafoor son of Faqir Rehmatullah Larik filed an application before the then Assistant Commissioner, Dadu alleging that claim of Abdul Ghafoor Rajput was bogus and besides he (Abdul Ghafoor Larik) is holding possession of the said land; hence, same may be cancelled. The then Assistant Commissioner after hearing said complainant, cancelled the claim papers of Abdul Ghafoor Rajput, whose claim was satisfied in the year 1970 and such entry was kept in VF-VII on 08.10.1981. Later, the matter went up to the Member, Board of Revenue, who remanded same and finally it was decided by the then Additional Commissioner-II, Hyderabad Division, vide No.S-15-4-2-Reader/83, dated 14.11.1992 re-Gul Hassan v. Abdul Ghafoor Larik & others, whereby he cancelled the order of Assistant Commissioner, on the ground that Assistant Commissioner was not competent to cancel the claim papers. Learned Counsel for the appellant submits that all these documents though were not adduced in evidence, as the Mukhtiarkar concerned was not examined before the trial Court, as the Mukhtiarkar had submitted report in favour of the appellant, which has not been considered and the trial Court has dismissed the complaint, which made basis for acquittal of the respondents solely on the ground that Mukhtiarkar was not examined. He further submits that appellant had also filed an application u/s 540, Cr.P.C, which too was dismissed by the trial Court on 15.10.2019 holding that it was filed at belated stage. He, therefore, submits that proper documents were not considered nor the evidence was recorded by the trial Court properly, hence the appellant being bonafide purchaser by way of registered sale deed is the owner of the said land, therefore, trial Court was required to appreciate all these things which it failed and thereby has caused miscarriage of justice by acquitting the respondents. Hence, prays for grant of appeal and remand of case for rehearing.
4. As far as contention of learned Counsel for the respondents that the appellant has filed civil suit for declaration, cancellation of document viz., entry, which is pending adjudication before the Court of II-Senior civil Judge, K.N. Shah is concerned, learned Counsel for the appellant submits that it is settled by now that criminal as well as civil proceedings can run side by side. In support of his contentions, he places his reliance on the cases reported as Shaikh Muhammad Naseem v. Mst. Fareeda Gul, (2016 SCMR 1931) and Gulshan Bibi v. Muhammad Sadiq (PLD 2016 SC-769).
5. Learned Addl. P.G. appearing for the State does not support the impugned judgment and supports the appeal in hand on the ground that trial Court has not taken pain to dig out the truth and dismissal of application filed by appellant u/s 540, Cr.P.C was a flagrant violation of the settled principle of law. Hence, submits that it will be appropriate that by allowing instant appeal case may be remanded to trial Court for rehearing.
6. Mr. Muhammad Afzal Jagirani, appearing for respondents No.1 to 4, opposes the appeal on the grounds that once an accused gets acquittal, he earns double presumption of his innocence and superior Courts have also deprecated to cause interference in the acquittal findings given by the Courts below. He further submits that the appellant himself has filed civil suit, which is pending adjudication before the Court having jurisdiction, therefore, instant appeal against acquittal is not maintainable; hence, prays for its dismissal.
7. Heard. Record perused.
8. Admittedly the appellant had purchased the property in dispute from original claimant Abdul Ghafoor Rajput, which was granted to him through claim in the year 1970 and after keeping mutation entries in revenue record of rights he got the sale certificate and then sold it out to the appellant through registered sale deed bearing No.623 dated 07.4.1981. Though all these documents as well as assertions were not brought before the Court below, yet it could be the fault on the part of advocate and it is settled law that parties may not be penalized or punished only because of the fault or negligence committed by the advocate if otherwise he had got good case on merits. A perusal of impugned judgment also reveals that the trial Court has held that since Mukhtiarkar was not examined, therefore, he deemed it appropriate to acquit the respondents instead of digging the truth by calling the Mukhtiarkar himself for which he was competent. The entry set aside by the then Additional Commissioner-II Hyderabad division through his order dated 14.11.1992 and said order had not been assailed either by Abdul Ghafoor Larik or by other accused/respondents. Mere claim of the respondents that they being Haries does not make them owner or lawful occupier of the land in dispute, which had already been allotted to original claimant Abdul Ghafoor Rajput, who subsequently sold it out to the appellant in the year 1981.
9. Accordingly and in view of dicta laid down by the Hon’ble Supreme Court of Pakistan in the case of Gulshal Bibi (supra), instant appeal against acquittal merits consideration. Consequently, same is hereby allowed and the impugned judgment dated 13.11.2019 passed by trial Court is hereby set aside. Case is remanded to the trial Court with directions to examine the Mukhtiarkar concerned and after recording fresh statement of accused u/s 342, Cr.P.C. and providing equal opportunity of hearing to either side re-write the judgment in accordance with law. Appellant may be at liberty to adduce all those documents which he had not submitted before the trial Court earlier at the time of evidence. This exercise shall be completed within six months’ time under intimation to this Court. The respondents who were present before the Court on bail, shall be deemed to be on bail subject to furnishing their fresh surety in the sum of Rs.50,000/- (Rupees fifty thousand only) each and P.R. Bonds in the like amount to the satisfaction of the trial Court.
10. Since both Counsel are present before the Court, hence are directed to appear before the trial Court on 03.01.2024,9 without fail. Copy of order be communicated to the trial Court by sending it through fax to the learned Sessions Judge, Dadu, for compliance.
11. It may be made clear here that the observations recorded hereinabove are based on tentative assessment of the material available on record, which shall influence the trial Court while deciding the case.
JUDGE