2010 P Cr (PLP)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this writ petition, the petitioner has assailed the order dated 18-7-2008 passed by learned Additional Sessions Judge, Sahiwal. The dispute between The parties relates to piece of land measuring 58 Kanals, 5 Marlas situated in Square No.25 Kilas Nos.3, 4, 5, 6, 7, 8 and 23/2 Mauza Doda Sahu Tehsil and District Sahiwal which is alleged by the petitioner subject of joint owner of her aunt, Sakina Bibi and Nasreen Bibi.

2. Brief facts of the case are that the petitioner filed private complaint under section 3 of the Illegal Dispossession Act, 2005 against respondents Nos.2 and 3 of their trial under section 3 of Illegal Dispossession Act, 2005 on the ground that she being owner is in possession of 6-1/4 Acers of land situated in Square No.25 Killas Nos.3, 4, 5, 6, 7, 8 and 23/2 Mauza Doda Sahu `Tehsil and District Sahiwal, which the same is subject of joint ownership of the petitioner and her Aunt Mst. Sakina Bibi and Nasreen Bibi, who are in possession and owner of this land. About six months back from the institution of the complaint by the petitioner the respondents Nos.2 and 3 forcibly illegally and unlawfully, with show of criminal force took possession of the 4 Kanals of land in Killa No.6 of Square No.25 from the Southern side of the property of the petitioner.

3. That after recording the summary evidence in the complaint, investigation report supported by Revenue Record the respondents were summoned to face the trial. Both the respondents appeared before the trial Court. Charge was framed under section 3 of the Illegal Dispossession Act, 2005 against them on 28-6-2008. After summoning the respondents Nos.2 and 3 evidence of the complainant was recorded as the C.Ws. were called for and were recorded and cross-examined by the Court. That the respondents Nos.2 and 3 moved an application under section 265-K, Cr.P.C. for their acquittal from the charge which was dismissed by the learned trial Court vide order dated 18-7-2008 and the evidence of the complainant was called for and were recorded and cross-examined; that learned trial Court vide impugned judgment dated 20-11-2008 dismissed the complaint of the petitioner and acquitted the respondents Nos.2 and 3 from the charge of the complaint, which is illegal, void without jurisdiction and against the mandatory provisions of law. The last para of impugned order dated 20-11-2008 is reproduced below:

"In view of the above said discussion, I am of the candid view and considered opinion that the dispute about the land in dispute remained pending in the Civil Court from the year 2005, thus, it could be ascertained from the documentary evidence produced by the accused that the land in dispute is admittedly falling in the joint Khata. Redressal can be sought for from the Revenue authorities. Since the complaint has failed to prove her version of the complain against both the above said accused persons, therefore, both the accused persons are hereby acquittal from the charge of this complaint case. Accused Shaukat and Abdul Shakoor are present on bail; their sureties stand discharged."

4. Learned counsel for the petitioner submits that learned trial Court illegally dismissed the application under section 265-K, Cr.P.C. filed by respondents Nos.2 and 3 and now has illegally acquitted respondents Nos.2 and 3; further submits that there is sufficient evidence on record to convict and sentence the respondents, who forcibly took possession of land which was in possession of the petitioner.

5. I have heard the learned counsel for the parties and peruse the record.

6. Judgment of the learned trial Court dated 20-11-2008 is based on cogent reasons and learned trial Court has made, best appraisal of the evidence and discussed in all respect the evidence of the complainant produced during the trial. Learned trial Court has rightly held that statements of the accused persons were recorded under section 342, Cr.P.C. on 30-8-2008 in which both the accused persons denied the allegations levelled against them in the prosecution evidence. In reply to a question that "Why this case against you and why the P.Ws. have deposed against your" Shaukat accused replied as under:

"It is a false case. I and my co-accused Shakoor purchased land from Nasir Alam, Sarfraz Alam, Zarina Begum, Tasneem Begum, Sahmeen Begum, Samina Yasmin, measuring ,58 Kanals, 5 Marlas situated in Square No.75 Killa No.6 (four Kanals) Killa No.14 (7 Kanals, 8 Marlas) Killa No.15 (7 Kanals, 8 Marlas)', Killa No.16 (sic) Kanals 8 Marlas), Killa No.17, (7 Kanals 8 Marlas), Square No.64 Killa No.16/2 (6 Kanals, 9 Marlas), Killa No.24/2 (7 Kanals, 17 Marlas), Killa No.25 (8 Kanals) but we are in possession of 55 Kanals, 18 Marlas. Mst. Zahida complainant filed a suit for declaration against Nasir etc. titled Zahid Bibi v. Maqsood Bibi etc. Mst. Zahida Nasreen also filed a suit for the return of land, titled Zahida Nasreen v. Shaukat Ali etc. pending in the Court of Mr. Ahmad Saeed, learned Civil Judge, Sahiwal. The complainant has falsely involved us in this case in order to take back the possession of the aforesaid land. Nasir Alam P.W. has deposed against us falsely because we refused to give him money for effecting a compromise. Nasir Alam P.W. has deposed falsely to take benefit in the case filed against him by complainant which is also pending in the Court of Mr. Ahmad Saeed, learned Civil Judge, Sahiwal. In fact the land of complainant comprised of 27 Kanals, 3 Marlas but she deposed in the complaint that she had 6-1/4 acres land. She had 5 acres and 4 Kanals in Square No.75 and four Kanals in Square No.42 and in Square No.64 (2 Kanals, 8 Marlas). The Khewat is joint. She is in possession of 6-1/4 acres land in the same Khewat.''

7. The civil litigation is pending between the parties; they are joint owners and co-sharers in the Khewat. The possession of one co-sharer is in joint property possession and is deemed on each and every inch. There is also admission by P.W. that civil suits are pending in the civil Court between the parities. He admitted that with Mst. Zahida Nasreen complainant he remained litigating and version of accused person is that for taking some favour and gain in said litigation he appeared as witness from complainant's side. He admitted that the land in dispute is falling in joint Khewat; therefore, partition can be claimed through revenue authorities. The complainant also admitted civil litigation with the accused persons and suit pending about return of possession. She specifically admitted that possession of land which was purchased by the accused persons was taken over on 31-5-2008 at night time and in Khasra Girdawari the land in dispute is in possession of the accused persons. This is a private complaint under section 3 of the Illegal Dispossession Act, 2005 and is filed just to pressurize and humiliate the respondents, which is abuse, of process and misuse of section 3 of the said Act which is meant for land grabbers. Illegal Dispossession Act is not meant for co-owners, co-sharers of land claiming each of them title in the disputed land. It appears that the private complaint was false and frivolous and the learned trial Court rightly acquitted the respondent dismissing the complaint filed by the petitioners.

8. Resultantly, this writ petition being devoid of any force is hereby dismissed. H.B.T./Z-62/L Petition dismisse