2021 PLP 2327 (YLR)

ABDUL HAMEED BALOCH, J.

This Criminal Appeal is directed against the judgment dated 13.10.2018 (impugned judgment) passed by the Additional Sessions Judge Sariab, Quetta (trial Court), whereby the appellant was convicted under Section 3 of the Illegal Dispossession Act, 2005 ("the Act") and sentenced to suffer Rigorous Imprisonment (RI) for four years with fine of Rs.10,000/- (Rupees ten thousand), in default whereof, further directed to undergo SI for three months. He was further directed to pay compensation amount of Rs.40,000/- (Rupees fourty thousand), in default whereof further directed to undergo SI for six months.

2. Brief facts leading to file the instant appeal are that the complainant Nizam-ud-Din filed a complaint under sections 3/4 of Illegal Dispossession Act, 2005 before the District and Sessions Judge, Quetta with the averments that he is owner in possession of property bearing mutation Nos.1684, 1685, old Khasra No.103, new Khasra No.263, measuring 10-Rods, 12-Poles, Kita-7, measuring 18-Rods, 12 Poles, Kitas-10, measuring 13-Rods, 07-Poles, Kita-2, measuring 09-Rods, 06-poles, total measuring 52-Rods and 36 Poles, Situated at Mohal and Mouza Khushaba Saadat, Tappa Shadezai-II, Tehsil City, District Quetta (hereinafter referred "property in question"). That on 26.10.2013 Syed Wajid Ali Shah and Shakar Khan without any justification and entitlement have started illegal and unlawful interference in the property of complainant in order to occupy the land of complainant by means of force and illegal manner. The complainant approached to the above named persons to desist from their illegal and unlawful act, but they bent upon to materialize their nefarious design; that on 31.10.2013, the complainant compelled by circumstances filed a suit for Declaration and Permanent Injunction coupled with application under Order XXXIX, Rules 1 and 2, C.P.C. against the said Syed Wajid Ali Shah and Shakar Khan in the Court of District Judge, Quetta, whereby the District Judge transmitted the same to the file of the Civil Judge-III, Quetta. The learned Civil Judge-III, Quetta vide order dated 31.10.2013 granted stay, but the above named persons did not comply the same, whereupon the complainant approached the SHO Shalkot and appraised the fact but unfortunately the SHO also did not pay any heed to the restraining order, as such the complainant filed contempt application against the above named persons. The complainant also filed an application to the Superintendent of Police Sariab, Quetta and finally on 13.12.2013 the SHO was pleased to obey the restraining order, passed by the Civil Judge-III, Quetta and demolished the illegal and unlawful construction of the land mafia made on the land of the complainant and handed over the peaceful possession of the same to the complainant and also submitted report; that on 01.11.2014 at midnight the appellant while taking the advantage of Moharram vacation by means of force occupied the land and constructed two Kacha rooms as well as constructed boundary wall by erecting KERAs (fence) made with wood branches. In the arising situation the complainant approached the SHO concerned, who visited the site and found a person namely Niazullah, who was arrested and whose statement was recorded. The said Niazullah stated that he has no concern with the land in question rather the appellant brought him to live in the said land; that the appellant illegally occupied the land of complainant while equipped with lethal weapon, therefore his presence on the spot may lead to breach of peace.

3. On receipt of complaint the learned Sessions Judge, Quetta transmitted the same to the file of Additional District and Sessions Judge-II, Quetta for adjudication, whereby inquiry report was requisitioned from the concerned SHO. The concerned SHO after conducting inquiry submitted report on 20.04.2015, on the basis whereof cognizance was taken. During the course of trial vide this court order dated 07.11.2017 the complaint was transferred to the court of Additional Sessions Judge Sariab, Quetta for adjudication, whereby after full dressed trial, the appellant was convicted in the aforesaid terms. Hence this appeal.

4. Heard learned counsel for the parties and have perused the record with their able assistance. In order to bring the guilt of accused at home the complainant produced six witnesses. The complainant deposed that he is owner of the disputed land; that on 26.10.2013 Syed Wajid Ali and other started illegal interference; that the complainant filed a suit before the Civil Judge-III, Quetta along with an application for interim injunction; that the learned Civil Judge accepted the application for interim injunction and the parties were directed to maintain statuesque, thereafter the complainant approached the concerned SHO, and apprised the SHO about interim order, whereupon the SHO demolished the illegal construction; that on 04.11.2013 the appellant at midnight occupied the land in question and constructed two Katcha (mud) rooms, as such the complainant again approached the SHO, who visited the site and arrested a person namely Niazullah, on query the said person told that he was brought by appellant to leave in the said property PW-4 Abdul Haq (Patwari) appeared before the trial court and produced mutation record, which shows that the Intiqal No.1684 is in the name of complainant Nizam-ud-Din. The said witness also produced report in respect of property Mahal Khushkaba Saadat Ex-P/4-C. The complainant produced two witnesses i.e. PW-2 Nizam Muhammad and PW-4 Nazar Muhammad. They reiterated the statement recorded during investigation. PW-1 in his deposition stated that in 2014 accused forcibly constructed a Katcha room, whereupon he approached the concerned SHO and appraised him when the SHO on visit to the site arrested one Niazullah who told the SHO that the appellant brought him to live in the said property. In June 2015 the complainant registered FIR against the appellant/accused, meaning thereby the complainant simultaneously approached two form one by filing complaint under Illegal Dispossession Act, 2005 and the other is registration of FIR on account of same occurrence. The law protects a person not to be tried for an offence on the same fact twice. The Article 13 of the Constitution and section 403, Cr.P.C. forbidden the same offence twice. It would be relevant to reproduce the referred article and section as under:

13. Protection against double punishment and self incrimination. No person-- (a) shall be prosecuted or punished for the same offence more than once; or (b) shall, when accused of an offence, be compelled to be a witness against himself.

403. Persons once convicted or acquitted not to be tried for the same offence. (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 36, or for which he might have been convicted under section 237. (2) A person acquitted or convicted for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, subsection (1). (3) A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequence had not happened, or were not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) Nothing in this section shall affect the provision of section 26 of the General Clauses Act, 1897, or section 188 of this Code. The Article 13(2) of the Constitution provide that no person shall be prosecuted/punished for the same offence more than once. For applicability of the Autrefois acquit (formerly acquitted) the following conditions have to be satisfied: (1) there must have been a trial of an accused for the offence charged against him (2) the trial must have been by a court of competent jurisdiction (3) there must have been a judgment or order of acquittal (4) the parties must be the same (5) fact and issue in earlier and subsequent trial must be identical. The complainant admitted that he registered an FIR in June 2015 in respect of illegal occupied land against the perpetrator. The trial court rejected the contention of the accused/appellant that the FIR and judgment of acquittal were not produced during the trial. Learned trial court has overlooked the statement of PW-1/complainant, whereby he admitted the registration of FIR. The learned counsel for the appellant produced the order of acquittal dated 30th May, 2017, passed by Judicial Magistrate-IV, Quetta, whereby the application under section 249-A, Cr.P.C. was accepted and the appellant along with co-accused were acquitted of the charge in case FIR No.120/2015, under sections 447-448-504-506-353-147-149, P.P.C., Police Station Shalkot, Quetta. Learned counsel also produced judgment dated 30th May, 2017, passed by Judicial Magistrate-IV, Quetta, whereby the appellant was acquitted of the charge in case FIR No.92 of 2015, under sections 447-448, P.P.C., Police Station Shalkot, Quetta. The complaint and the referred FIRs are in respect of the same property. Whereby any judicial decision was brought in the notice of the court, for the sake of administration of justice it has to look upon the judgments. In this regard reliance is placed on the case of Sultan Ahmed v. Additional Sessions Judge Gujranwala 2011 PCr.LJ 487, whereby it has been held that "Once an FIR was registered then a complaint under section 3 of the illegal Dispossession Act, 2005, would not be competent in respect of the same occurrence as has been held by full bench of this court Zahoor Ahmed and others v. The State and 3 others (PLD 2007 Lah. 231)". Now adverting to the evidence of complainant, in order to constitute an offence, the complainant must disclose the existence of an unlawful act (actus reas) and criminal intention (mens rea). The averment of complainant shows that there is a civil dispute in respect of the disputed land between one Shakar Khan and others. It was admitted by the complainant during cross-examination that: The trial court decided the question of maintainability of the complaint without giving consideration to the averment in the complaint. The complainant alleged that at midnight the accused has took possession of the land. The same story were narrated by the witnesses. The record transpires that neither the complainant nor witnesses have ever been seen any person who occupied the land. The complainant himself admitted that the civil dispute is subjudice before the competent civil court with one Shakar Khan and others. Meaning thereby the ownership of complainant has been challenged by one Shakar Khan. The complainant has to satisfy the court with regard to existence of every ingredients of alleged offence. The complainant must to give all material particular, with regard to act of illegal dispossession in the complaint itself. In the absence of material particulars, exact time and date of the alleged act of dispossession, no roving inquiry is to be conducted by the learned trial Court to ascertain whether or not the complainant was dispossessed in terms of Illegal Dispossession Act. Reliance can be made to the case of Muhammad Hayat Khan v. State 2014 YLR 3901, whereby it has been held as under: "9 The complainant was admittedly not present at the place of occurrence at the time of occurrence and he himself has not seen the petitioner while breaking the locks of the house and occupying the same. It was allegedly seen by Muhammad Younas P.W.2, who had allegedly informed the complainant about the incident of taking over illegal possession of the disputed house by the present petitioner. The complainant has not mentioned in his complaint that how he came to know that the petitioner had illegally occupied the house after breaking the locks. He has not mentioned the same in rapt Mark-B, which was admittedly lodged by him that he was informed about the breaking of lock by Muhammad Younas P.W. He mentioned therein that on 20.3.2012, he came to look after the house and found that its locks had been broken and one Muhammad Sultan was found in possession thereof. On query Sultan informed that his friend Zafri has sent him in this house with Muhammad Hayat Khan and Muhammad Hayat Khan had told him that he had purchased the house from Abdul Manan. In petitions made by the complainant under sections 22-A and 22-B, Cr.P.C., he has not mentioned the name of any person who had witnessed the occurrence. Admittedly, Muhammad Younas P.W.2 is the resident of Malakwal whereas the complainant and Muhammad Shoaib brother-in-law of the complainant was also resident of Malakwal, therefore, his deposition without any independent corroboration, cannot be safely relied". The learned trial court has shifted the burden of proof on accused/appellant which is not consonance with criminal principle of administration of justice. In the case of Dur Muhammad v. State 2010 YLR 470, it was observe that: "It is trite law that when the prosecution fails in establishing its case beyond reasonable shadow of doubt, the accused is to be acquitted, even if he had taken a plea and thereby admitted the killing of the deceased. Reference is made to the case reported as "Azhar Iqbal v. The State" (2013 SCMR 383) wherein it has been held as under: "It has straightaway been observed by us that both the learned courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139)" Reference is also made to case reported as "Javaid v. The State" (PLD 1994 Supreme Court 679), wherein it has been held as under: - "Even if defence plea is raised, burden on prosecution to prove the case beyond doubt is never lessened or lightened and remains the same and accused is always entitled to benefit of doubt if the prosecution case is not proved by satisfactory evidence." In criminal cases burden of proof is always on the shoulder of the prosecution to prove its case beyond reasonable doubt and the prosecution cannot take benefit from the weakness of defence. In the case of Tore Jan alias Jag v. State 2012 PCr.LJ 780, the Divisional Bench of this court held that the conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused and it is imperative for the court to examine and consider all the relevant proceedings and leading facts of the occurrence, so as to arrive at the correct conclusion. It is not denied that for giving benefit of doubt it is not necessary that there should be many circumstance creating doubts, if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused then the accused will be entitled to the benefit not as a matter of grace and concession but as right. In view of above the appeal is accepted. The judgment dated 13.10.2018, passed by the Additional Sessions Judge, Sariab, Quetta is set aside. The appellant Azizullah son of Muhammad Anwar is acquitted of the charge. He is on bail his bail bond stand discharged. SA/165/Bal. Appeal allowed.