1989 P Cr (PLP)

This revision petition is directed against the judgment of the learned Sessions Judge, Dir Camp Timergara, dated 9‑5‑1984 whereby, in appeal, he acquitted the respondent Sher Zaman of the charge of theft.

2. On the report of the complainant Abdul Matin father of the petitioner, a case was registered in Police Station Timergara vide F.I.R. No. 13, dated 4‑2‑1980 under section 379, P.P.C. for dishonestly removing four trees by cutting away from the area of Village Ambarzai which site the complainant‑petitioner claimed as his property.

3. The case has a chequered history inasmuch as twice the case was remanded for recording fresh evidence and finally the accused‑respondent was convicted under section 14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 379, P.P.C. and sentenced to pay a fine of Rs.1,000 or, in default of payment of fine, to undergo six months' R.I. vide judgment of the trial Court, dated 31‑3‑1984.

4. I have heard Mr. Muhammad Aman Khan, Advocate, the learned counsel for the petitioner, Mr. Shahabuddin Burq, Advocate, for the accused respondent No.l and Mr. Habibur Rehman, Advocate, for the State and also perused the record with their valuable assistance. 4‑A. It is contended on behalf of the petitioner that the learned lower appellate Court has not taken into consideration all the evidence recorded and in particular the evidence of the two Court‑witnesses, namely, Hakim Muhsinul Haq and Fazal Ghafoor and as such the impugned judgment, setting aside the order of conviction and sentence passed by the learned trial Court, is unsustainable. It was thus urged that retrial of the accused‑respondent be ordered.

5. On the other hand, the learned counsel for the accused‑respondent has maintained that from the evidence recorded, the offence, for which the accused respondent was charged, has not been proved beyond shadow of doubt and the learned appellate Court has rightly acquitted him.

6. The learned counsel for the State also supported the impugned judgment and was of the view that, from the circumstances the conviction and sentence of the accused‑respondent is not tenable in facts as also in law.

7. I have given my serious consideration to the matter. A perusal of the record shows that the site from which the trees have allegedly been cut and removed, has remained subject of dispute between the parties and there had been litigations between them over it since 1966. The learned counsel for the petitioner could not satisfactorily explain that the ownership and possession of the disputed site, wherefrom the trees have allegedly been cut by the accused‑respondent, is proved from the evidence to be that of the complainant and could not, at the same time, refute that the site is certainly a disputed one.

8. In this context of the matter, I have no hesitation in holding that when it is not proved by the prosecution that the land belongs to, or is in possession of the complainant and rather the ownership thereof is subject of dispute and that the trees are removed there from by the accused is found to be in the assertion of a contested claim of right, however unjustified it may be, the act of the accused shall not be deemed to have constituted an offence of theft.

9. From the evidence recorded, therefore, I do not see such unimpeachable evidence forthcoming as to saddle the accused‑respondent with the criminal liability of the nature for which he was convicted and sentenced by the learned trial Court and as such I do not find any fault with the decision arrived at by the learned appellate Court as per its impugned judgment. Nor do I find the impugned judgment suffering from any illegality or impropriety to justify interference by this Court in exercise of its revisional jurisdiction.

10. Consequently, finding this petition devoid of any merits, I hereby dismiss it accordingly. S.A./769/P Revision dismissed.