2021 P Cr (PLP)

MUHAMMAD NAEEM ANWAR, J.

This single judgment shall also decide W.P. No.2279-P of 2013, as both are arising out of the same judgment. Through instant writ petition, the petitioners have challenged the judgment of learned Additional Sessions Judge, Charsadda at Tangi, dated 30.07.2013, whereby they were convicted and sentenced to one year's RI with direction to pay Rs.10,000/- each, as compensation to the complainant/respondent No.1, which shall be recovered from them as arrear of land revenue under section 544-A, Cr.P.C. and it was also ordered that possession of the property be restored immediately to the complainant, in private complaint No.4 of 2009 filed on 22.12.2009, whereas through Writ Petition No.2279-P of 2013, complainant, Mst. Taraja Begum (hereinafter called as respondent No.1) has sought enhancement of sentence of appellants.

2. Facts of the case are that respondent No.1 had filed a complaint under sections 3/4 of Illegal Dispossession Act, 2005, against appellants before the Court of Additional Sessions Judge Tangi, whereas it was averred that she is the owner of property bearing Khasra Nos.3163/2943-1071, 1073 to 1083, 1075 to 1078, 2944/1081-1082, 2945/1085 to 1087, 3163/1071/2 of the estate of Tangi Barazai, possession whereof was handed over to her through 'warrant-dakhal' (warrant of possession) on 16.12.2009, however, on 19.12.2009 at about 9.00 a.m., petitioners have forcibly taken the possession of the said property and ploughed it, which was witnessed by Abdur Rashid son of Bakhtiar, Khalid son of Riaz and Samiullah son of Aman Ullah Khan resident of Tangi Barazai. In response to the summons, petitioners appeared and provisions of section 265-C, Cr.P.C. were complied with. Charge against the petitioners was framed to which they pleaded not guilty and claimed trial.

3. Complainant/respondent No.1 produced Fakhr-ul-Hassan, Girdawar Circle Utmanzai as PW.1, Fida Muhammad, Patwari Halqa as PW2, Ali Gohar Shah, Patwari Halqa of Moza Sadu Khel, District Charsadda as PW.3, Sardar Hussain SI PS Nisatta as PW.4, Madad Khan as PW.5, Aman Ullah as PW.6 and complainant herself appeared as PW.7. Petitioners were examined under section 342, Cr.P.C. After completion of evidence the petitioners were convicted and sentenced as mentioned in Para-1 of the judgment.

4. During trial, complainant-respondent No.1 while appearing as PW.7 has deposed that possession of the property was handed over to her on 16.12.2009 and after three days she was dispossessed by the petitioners. The crucial questions, which required determination were; i) As to whether the possession of property was handed over to complainant- respondent No.1, on 16.12.2009, during execution proceedings, through warrant of possession? ii) As to whether she was dispossessed by the petitioners.

5. In order to prove the said facts, respondent No.1-complainant produced Fakhr-ul-Hassan, Girdawar Circle, who in his cross-examination categorically stated that "it is correct that no warrant of possession had been issued by the revenue officer for 16.12.2009, today, I have seen my signature on request for police assistance form, on the front of police letter dated 5.12.2009, the report dated 16.12.2009 is mentioned regarding the fact that due to unavailability of police no execution proceedings were carried out, the next date was fixed as 24.12.2009. It is correct that the date 15.12.2009 was slightly over-written from 15 to 16". He also admitted it as correct that possession of three Kanal agricultural property and one Kanal constructed area was not taken by him from the judgment debtor of partition proceedings. He also admitted it as correct that he has not given any notice to the appellants for execution. It is of worth perusal that he stated in cross-examination that complainant/respondent No.1 was not present at the time of execution proceedings and her husband was present. Likewise, Patwari Halqa (PW2) in his cross-examination has admitted that there is over writing in daily diary and it has not initialed and that there is cutting in DD on Sr. Nos.110 and 111 regarding the date mentioned as 16th December and 17th December, 2009. It is important to note that PW.4 (Sardar Hussain SI PS Nisatta) stated that he could not say that to whom the possession was handed over. In respect of the factum of handing over the possession of the property there is a contradiction in the statements of PW.2 and complainant/respondent No.1. PW.2 stated that the complaint was not present, however her husband was present on the spot, whereas the complainant/respondent No.1, while appearing as PW.7, has stated that, "It is incorrect to suggest that I was not present at the time of execution proceedings." Similarly report of warrant of possession dated 16.12.2009 was submitted as such:

6. The above-mentioned evidence is more than sufficient to come to an irresistible conclusion that physical possession of the property was not handed over to complainant/respondent No.1. The complainant/ respondent No.1 has not been able to prove her possession over the suit property, which was one of the ingredients of Section 3 of the Illegal Dispossession Act, 2005, which reads as: "Whoever forcibly and wrongfully dispossesses any owner or occupier of any property and his act does not fall within sub section (1), shall be punished with imprisonment which may extend to three years or with fine or with both, in addition any other punishment to which he may be liable under any other law for the time being in force. The person dispossessed shall also be compensated in accordance with provisions of Section 544-A of the Code". 6(sic.) Section 2(c) of Illegal Dispossession Act provides the remedy to the person who can approach to the Court for seeking the relief under the provision of the ibid Act. Definition of occupier and the owner for the purpose applicability of the provisions of the Act ibid, have been provided by clauses (c) and (d) respectively of section 2 of the Act ibid which reads as; 2(c) "occupier" means the person who is in lawful possession of a property; 2(d) "owner" means the person, actually owns the property at the time of his dispossession, otherwise then through a process of law".

7. Admittedly, in the instant matter, the complainant/respondent No.1 has sought recovery of possession but, as explained earlier, was required to prove his possession over the property in dispute. The complainant/respondent has miserably failed to prove his possession over the suit property by convincing, concrete and direct evidence, rather there are contradictions in the statement of PWs, thus there remains no case for recovery of possession against the petitioners. In a case titled Ghulam Haider and others v. Chuttal Khan and others (2019 MLD 1840) It was held by Sindh High Court that: "In such view of the matter, I refrain myself from giving any findings on the assertion of the applicant regarding the claim of ownership over the subject property on the basis of alleged purported sale statement, as it may prejudice the case of either party. Moreover, prima facie the possession of the applicant/complainant over the subject property could not be established as no evidence or any document has been produced by the applicants to prima facie establish that they were occupier of the subject property within the meaning of section 2 (c) of The Act ibid. In my humble view, in absence of any material establishing that applicant's earlier possession over the subject land, the contention of the learned Advocate for applicants that the applicants were in lawful possession of the subject land, at this juncture, is not tenable".

8. It is also significant to mention that as the complainant/ respondent No.1 has failed to prove his earlier possession of the subject property; in the same manner she could not prove her dispossession from the suit property as alleged by her. The witnesses produced by complainant/respondent No.1 have not contributed much to the factum of dispossession, as alleged in the complaint. Reliance is placed on case titled Muhammad Saddiaue v. Muhammad Hanif (2018 PCr.LJ 1341). "The extract area of land from where the complainant claimed he had been dispossessed was to identified. No independent witness was examined who could have testified that the complainant party was in possession of the land on the date it is alleged that the dispossession took place. In fact, no evidence apart from the complainant party statements (and copies of a bundle of disputed documents) was produced in trial to prove that an offence under the Illegal Dispossession Act, 2005, was constituted by the appellants.

9. In this view of the matter, when the complainant/respondent No.1 could neither prove her possession nor dispossession from the subject property, as such, the charge does not specify the allegations which could constitute an offence under the provisions of Illegal Dispossession Act, 2005. Even otherwise, the statement of the complainant/respondent No.1 before the trial Court does not disclose anything which would attract section 3(2) of the Act, 2005.

10. In the above circumstances the petition is allowed, the impugned judgment is set aside, resultantly, the petitioners are acquitted from the charge framed against them by the trial Court under which the appellants were convicted. As the petitioners are on bail, therefore, their bail bonds are cancelled and sureties are discharged.

11. As the instant petition has been allowed, therefore, the Writ Petition bearing No.2279-P/2013, filed by the complainant/respondent No.1 has become infructuous, thus, stands dismissed. SA/147/P Petition allowed.