2021 PLP 732 (YLR)

KHADIM HUSSAIN M. SHAIKH, J.

The captioned appeal is directed against the judgment dated 17.02.2017, passed by the learned Additional Sessions Judge, Kashmore, in Direct Complaint No.04 of 2016, re-Muhammad Hanif Soomro v. Barkat Dasti and another, for offence under section 3(2) of Illegal Dispossession Act, 2005, whereby respondents, namely, 1) Barkat and 2) Bhai Khan, both sons of Pir Bux alias Gabro, by caste Dasti, have been acquitted of the charge.

2. Briefly the facts of the case are that complainant Muhammad Hanif filed the subject complaint under the provisions of Illegal Dispossession Act, 2005, alleging therein that about three months prior to filing the complaint, accused, namely, 1) Barkat, and 2) Bhai Khan, both sons of Pir Bux alias Gabro, by caste Dasti, along with absconding accused, namely, Rasool Bux, Malho and Chakar, illegally occupied his land to the extent of 01-00 acres out of Survey No.262 (area 8-32 acres), situated in Deh Gullanpur, Taluka Kashmore. After necessary formalities the complaint was registered and brought on regular file.

3. A formal charge was framed against the accused, to which they pleaded 'not guilty' and claimed to be tried.

4. At the trial, complainant Muhammad Hanif examined himself at Ex.10, PW-2 Ilawaldin at Ex.11, and PW-3 Abdul Majeed at Ex.12. After closure of complainant's evidence, statements of respondents of the accused were recorded under section 342, Cr.P.C, wherein they denying the allegations, pleaded their innocence and claimed to have been falsely implicated in this case due to their dispute with the complainant.

5. At the conclusion of trial and after hearing the parties' Counsel, the learned trial Court acquitted the accused ("the respondents") of the charge vide impugned judgment dated 17.02.2017.

6. Having felt aggrieved by the said judgment, complainant Muhammad Hanif ("the appellant") has preferred the present acquittal appeal.

7. It is, inter alia, contended by the learned Counsel for the appellant that the learned trial Court has not properly appreciated the evidence brought on record; that the appellant by examining himself and his witnesses has proved his case against the respondents beyond reasonable doubt; and, that the impugned judgment passed by the learned trial Court is illegal. The learned counsel, therefore, prays that the appeal may be allowed and the respondents may be convicted.

8. The learned Additional Prosecutor General as well as the learned advocates for respondents Nos.1 and 2, supporting the impugned judgment, have contended that the learned trial Court has acquitted the respondents after evaluating the evidence and other material brought on the record; and, that there is no illegality in the impugned judgment and they pray for dismissal of this acquittal appeal.

9. I have considered the submissions of learned Counsel for the appellant, learned advocates for respondents Nos.1 and 2 and the learned Addl. P.G., and have gone through the impugned judgment passed by the learned trial Court and the material brought on record.

10. From a perusal of the record it would be seen that no date and time of the alleged incident is either mentioned in the subject complaint filed under section 3(2) of Illegal Dispossession Act, 2005 or in the evidence of appellant Muhammad Hanif and his witnesses and even descriptions and boundaries of the subject land admeasuring 1-0 acres out of the area of 8-32 acres from S.No.262 of deh Gullanpur Taluka Kashmore have not been shown in the complaint which were essential for the identity of the subject area of 1-0 acre from the aforesaid S.Nos; the appellant has not produced any document to prove that he is owner of the subject land and he ever remained in possession thereof; the appellant examined two witnesses, namely, Ilawaldin and Abdul Majeed, who are his 'Haris' and caste-fellows and inimical towards the respondents, who have claimed that witnesses Ilawaldin and Abdul Majeed had already filed a false criminal miscellaneous application under section 22-A, Cr.P.C. against them and they also lodged false FIR regarding theft against them; Muhammad Haneef has neither examined Mukhtiarkar and SHO concerned in support of his complaint, nor has he produced their reports during the evidence, hence there was no occasion for the respondents to confront the reports submitted by Mukhtiarkar, Taluka Kashmore and SHO Police Station Kashmore, which could not be taken into consideration; there are also material contradictions in the evidence of complainant Muhammad Haneef and witnesses Ilawaldin and Abdul Majeed, PW-2 Ilawaldin has deposed that present accused along with absconding accused had occupied one acre land of complainant from survey No.262 deh Gullanpur about 3/4 months prior to this complaint; that at the time of alleged incident complainant and witness Abdul Majeed were also with him when accused occupied the land; PW-3 Abdul Majeed has deposed that the accused had occupied the land at gunpoint by keeping hedge surrounding one acre and also issued threats to the complainant of dire consequences; witness Ilawaldin has deposed that Sonwah is situated about 300/400 feet away from disputed land, while witness Abdul Majeed has stated in cross-examination that Sonwah would be 08 feet away from the disputed land; the complainant has stated that accused had made one hut at his one acre land forcibly, while witness Abdul Majeed has stated in cross-examination that accused had made two huts at the land of complainant and whereas witness Ilawaldin has stated that there are 4/5 houses at the land of complainant. Apart from the above material contradictions and discrepancies, rendering the case of the appellant doubtful, there are many other material and infirmities in this case, which need not to be discussed here just to save the time and space. The learned trial Court has acquitted the respondents extending them benefit of doubt on failure of the complainant to prove his case against them beyond reasonable doubt. It is reiteration that after acquittal of the accused by the Court of competent jurisdiction, presumption of double innocence is attached to the acquittal judgment, which normally does not call for interference unless the acquittal judgment or order is found arbitrary, capricious, fanciful and against the record. I have seen the impugned judgment dated 17.02.2017, passed by the learned trial Court, which is apt to the facts and circumstances of the case and it suffers from no illegality or misreading or non-reading of the evidence and the same does not call for any interference in exercise of jurisdiction under the provisions of section 417, Cr.P.C. And, thus this criminal acquittal appeal is liable to be dismissed. These are the reasons of short order announced by me on 08.11.2019, whereby this criminal acquittal appeal was dismissed. JK/M-161/Sindh Appeal dismissed.