2022 P Cr (PLP)

AFTAB AHMED GORAR, J.

By way of instant Criminal Acquittal Appeal, the appellant/complainant has impugned order dated 11.03.2019, passed by learned Additional Sessions Judge-III, Sukkur, whereby he has acquitted the private respondents of the charge for offence punishable under sections 3 and 4 of the Illegal Dispossession Act, 2005.

2. The facts of the case are that the appellant/complainant filed Criminal Complaint No.49/2018 under sections 3 and 4 of the Illegal Dispossession Act, 2005 for prosecution of the private respondents, alleging therein that he is owner of the landed property bearing S. Nos.78/1 (2-03), 78/2 (01-33), 78/3 (01-28) Acres situated in Deh Abad Jageer, Taluka New Sukkur to the extent of 50% share i.e. (02-32) Acres. It is alleged that on 15.07.2018 at about 10:00 a.m., the appellant/complainant along with his boys namely Abdul Sami and Abdul Haleem and haries were available at his lands, when all of a sudden there came private respondents duly armed with guns, trespassed and forcibly dispossessed the appellant/complainant from his aforesaid landed property and issued threats of dire-consequences and the private respondents have started constructing a Mud Wall surrounding the said landed property just to grab the land of the appellant/complainant. Thereafter, he along with is witnesses approached the SHO Police Station Abad Sukkur for lawful action against the private respondents but due to General Elections he kept him on hopes because the private respondents are very influential persons. The appellant/complainant then approached the SSP Sukkur, who referred him to DSP Site on 01.08.2018 for enquiry and report but the DSP asked the appellant/complainant for making private faisla with the private respondents, whereas, the private respondents have no title document as such the DSP Site did not submit any report to SSP Sukkur. There is serious apprehension of bloodshed, hence having no way he approached the Court of law by filing the present direct complainant by invoking the jurisdiction under Illegal Dispossession Act, 2005.

3. The learned trial Court after calling the reports from the concerned Mukhtiarkar (Revenue) Taluka New Sukkur as well as SHO Police Station Abad, and after hearing the learned counsel for the complainant, the learned trial Court brought the direct complaint on regular file vide order dated 08.10.2018 and Bailable Warrants were issued against the private respondents. Thereafter, the private respondents appeared and filed an application under section 265-K, Cr.P.C. for their premature acquittal, which was ultimately allowed vide impugned order dated 11.03.2019, hence the appellant/complainant has preferred the instant Criminal Acquittal Appeal.

4. It is contended by learned counsel of the appellant/complainant that learned trial Court has acquitted the private respondents of the charge without considering the facts, reports submitted by the Mukhtiarkar (Revenue) Taluka New Sukkur as well as SHO Police Station Abad; that the learned trial Court in the first instance believed both the reports as true, whereas, in the second phase while deciding the application under section 265-K, Cr.P.C. filed by the private respondents recorded premature acquittal of the private respondents without recording evidence of the complainant and his witnesses. He lastly prayed that the impugned order may be set-aside with direction to learned trial Court to proceed with the case in accordance with law.

5. Learned counsel for the private respondents sought for dismissal of instant Criminal Acquittal Appeal by contending that the private respondents are in possession of the land in question since last 25/30 years, therefore, the question of forcible dispossession does not arise, whereas, the appellant/complainant just to drag the private respondents has filed the instant direct complaint. He lastly prayed that the learned trial Court has rightly recoded acquittal of the private respondents hence the impugned order does not call for any interference by this Court and the regular trial against the private respondents would serve no purpose.

6. Learned DPG for the State did not support the impugned order by contending that the prosecution could not be denied chance to prove its case in accordance with law by adducing the evidence. In support of his contention, he has relied upon the case of Asif lqbal v. District and Sessions Judge Khushab and others (2011 SCMR 720).

7. I have heard the arguments of learned counsel for the appellant/complainant, private respondents and learned DPG for the State and gone through the record. The appellant/complainant has stated in his direct complaint that he has been dispossessed forcibly by the private respondents on 15.07.2018 when he along with his boys namely Abdul Sami and Abdul Haleem and haries were present at his landed property, whereas, the reports furnished by the Mukhtiarkar (Revenue) Taluka New Sukkur as well as SHO Police Station Abad disclosed that the father of the private respondents has remained in possession since last 25/30 years, as such the controversy between the parties requires evidence. In such circumstances, the learned trial Court ought to have proceeded with the case by recording the evidence of the complainant and his witnesses in order to thrash-out the crucial point involved in the matter with regard to the claim of the parties over the possession of the disputed land. There is no denial to the fact that the private respondents have been acquitted at premature stage in terms of section 265-K, Cr.P.C. without recording the evidence so far, as at the relevant time trial had not commenced. In view of the facts and reasons discussed herein above, the impugned order dated 11.03.2019 being not sustainable stands set aside and the matter is remanded to learned trial Court with direction to proceed with the matter in accordance with law. The appellant/complainant and his witnesses are directed to ensure their attendance before the trial Court for recording their evidence. The private respondents who were in attendance before learned trial Court on bail should remain on same bail subject to execution of fresh bail bonds. The instant Criminal Acquittal Appeal is disposed of in the above terms. SA/A-8/Sindh Case remanded.