2021 PLP 125 (YLRN)

SADAQAT ALI KHAN, J.

Appellants (Muhammad Riaz, Muhammad Nawaz, Zahid Ali and Naeem/Nadeem alias Jhalla) have been tried by learned trial Court in two separate complaints under sections 3, 7, 8 of Illegal Dispossession Act, 2005 and were convicted and sentenced vide consolidated judgement dated 16.05.2011 as under:- Muhammad Riaz and Muhammad Nawaz (appellant) under section 3(2) of Illegal Dispos-session Act, 2005 Sentenced to imprison-ment for two years R.I. each with fine Rs.30,000/- each payable to the complainants under section 544, Cr.P.C. in default whereof to further undergo three months simple imprisonment each. Zahid Ali and Naeem alias Jhalla (appellant) under section 3(2) of Illegal Dispos-session Act, 2005 Sentenced to imprison-ment for one year R.I. each.

2. Heard. Record perused.

3. On 27.06.2007 and 11.07.2007, Ashiq Hussain (PW-2) and Muhammad Sharif PW-1 (since dead) respectively by filing separate complaints under sections 3, 7, 8 of Illegal Dispossession Act, 2005 stated therein that they along with other co-owners purchased suit land measuring 48-Kanals 08-Marlas Khasra Nos.224/4-1, 242/7-3, 243/6-15, 288/7-0, 289/6-9, 297/7-7, 298/4-0, 326/5-13, 288/0-12, 289/0-10, 327/2-11, Khatas Nos.94 to 96, Khewat No.51 according to Jamabandi for the year 1998-99. It is alleged that Muhammad Riaz (appellant) himself committed the murder of his mother and got registered case against them and others (total 15 in number) under section 302, P.P.C., 14 persons were acquitted whereas one person absconded (who later on was also acquitted on the basis of compromise). They along with others filed suit for recovery of `lagan' against Muhammad Riaz (accused/ appellant) qua suit land in the Court of Deputy District Officer (Revenue)/ Collector, Sialkot which was decreed in their favour and warrant Dakhal was issued and possession was given to them by bailiff on 23.06.2007. On 25.06.2007, all the appellants along with 9/10 unknown culprits with muffled faces armed with lethal weapons while trespassing into the suit land and damaging crop of cherry had illegally taken its possession. Muhammad Sharif (PW-1) stated in his examination-in-chief that disputed land is measuring 48-Kanals 06-Marlas; he is owner of 1/4th share of above property; further stated that Riaz (appellant) himself committed the murder of his mother and got registered case against him and 14 others under section 302, P.P.C., 14 persons were acquitted whereas one person absconded who was also acquitted on the basis of compromise; he stated in his cross-examination that accused persons (appellants) are also sharik khata, he did not get partitioned his share in the above property; previous litigations civil as well as criminal between the parties are pending at different forums and both parties are appearing; he earlier got registered two criminal cases against appellants regarding the suit property; Khasra Girdawari of the suit land is not in his name, volunteer Khasra Girdawari is in the names of appellants as tenants; he himself filed suit seeking the correction of the revenue record regarding the Khasra Girdawari which is still pending; appellants got registered criminal case for the murder of their mother; 15 accused were nominated including him; appeal of the murder is still pending; appellants were never convicted in any criminal case got registered by him; no portion of suit land is lying uncultivated and un-possessed; he stated in his cross-examination that he had purchased suit land from common Khata, volunteered they (4 persons) had purchased above land jointly; only he is the complainant of instant complaint; Ashiq Hussain, complainant of other complaint (PW-2) stated in his cross-examination that he is owner of suit land to the extent of 4- Kanals; appellants are also co-sharers in the above Khata; neither he nor any of the accused moved any application seeking partition of suit land; Khasra Girdawari is not in his name; a suit of pre-emption regarding the suit land filed by the appellants is also pending. Muhammad Zubair Butt, Naib Tehsildar (PW-4) stated in his cross-examination that it is not in his knowledge that accused persons are also co-owners in the above said Khata; it is not in his knowledge that at the time of proceedings at the spot accused persons (appellants) presented their titled documents, stay order, Fard Malkiat to show that they are joint owners in the above said Khata; further stated that he cannot say as to whether appellants are guilty or not; he stated in his cross-examination that he knows that above Khata is joint Khata but he does not have knowledge regarding the detail of the ownership of the owners; he has no knowledge as to whether any case was filed for the partition of the above land; he does not have knowledge that Muhammad Riaz (appellant) did not possess any land illegally because he was also owner of land in joint Khata. Ghulam Mustafa, Patwari (PW-5) stated in his cross-examination that Muhammad Riaz (appellant) also one of the owners in Khata; ownership of Muhammad Sharif is about 12-Kanals 02-Marlas whereas ownership of Ashiq Hussain is 24-Kanals 05-Marlas; he stated in his cross-examination that he went to spot for putting the complainant party in possession; Khasra Girdawari was in the name of appellant (Muhammad Riaz) and still is in his name; he further stated in his cross-examination that it is in his knowledge that litigations between the parties are pending; he further stated that Muhammad Riaz (appellant) is in possession of land being joint owner and is owner of 12-Kanals; he also admitted in his cross-examination that Khasra Girdawari of whole above Khata is in the name of Muhammad Riaz (appellant); he admitted that as per revenue record, Khasra Girdawari is a proof of possession of land which is continuously in the name of Muhammad Riaz (appellant) for the last 7/8 years.

4. In view of the above discussion, I am of the considered view that suit property is joint between the parties and has not been partitioned legally by the Court till today. In these circumstances, appellants neither could have been convicted nor shares of the complainants could have been directed to be separated from the co-owners including appellants under Illegal Dispossession Act, 2005 without legal partition of the suit land through impugned judgment which is result of mis-reading and non-reading of evidence and is not sustainable in the eyes of law. Reliance is placed on case titled "Bashir Ahmad v. Additional Sessions Judge, Faisalabad and 4 others" (PLD 2010 SC 661).

5. For the foregoing reasons, instant criminal appeal filed by the appellants (Muhammad Riaz, Muhammad Nawaz, Zahid Ali and Naeem/Nadeem alias Jhalla) is accepted, their convictions and sentences awarded by learned trial Court through the impugned judgment are hereby set aside. They are acquitted of the charges. Appellants (Muhammad Riaz, Muhammad Nawaz and Naeem/Nadeem alias Jhalla) are present on bail, their sureties stand discharged whereas appellant (Zahid Ali) is statedly behind the bars in another case, he is directed to be released forthwith from this case, if not required in any other case. SA/M-52/L Appeal accepted.