2014 PLP 370 (MLD)

FAROOQ ALI CHANNA, J.

The appellant has filed this Criminal Acquittal Appeal against the judgment dated 13-3-2012, passed by learned IInd Additional Sessions Judge, Karachi (East) (referred to hereinafter as trial Court) in Criminal Complaint No.102 of 2010 under section 3/4 of the Illegal Dispossession Act, 2005 (referred to hereinafter to as Act, 2005), acquitting the respondent.

2. Brief facts of the case are that appellant Shakeel Ahmed Khan filed the criminal complaint that he purchased the property bearing House No.A-124, Block-2, Gulshan-e-Iqbal, Karachi (referred to hereinafter as said house) from Mst. Shireen Jamal Akhtar, through her legally constituted attorney Mohammad Saeed under a valid registered sale deed in the month of April, 2009. The appellant was put in physical possession of said house however, the respondent dispossessed him and occupied the upper portion of said house illegally in the month of September, 2009. The appellant lodged F.I.R No.592 of 2009 under sections 380/448/454/457 P.P.C, so also the instant criminal complaint under section 3/4 of Act, 2005.

3. In first round the trial court dismissed the complaint on the ground that civil litigation was pending between the parties. The appellant filed criminal revision against the said dismissal order, which was allowed and the matter was remanded to the trial court with direction to decide the complaint afresh in accordance with law.

4. The trial court after framing the charge recorded the evidence of appellant and examined the respondent under section 342 Cr.P.C. and after hearing the counsel for both the parties acquitted the respondent vide judgment impugned in this Criminal Acquittal Appeal.

5. Learned counsel for the appellant has contended that from the evidence of the appellant and the record produced before the trial court it is proved that the appellant has purchased the said house from Mst. Shireen Jamal Akhtar through her attorney Mohammad Saeed, as such the appellant is the legal owner of said house, whereas the respondent has no title document in his favour entitling him to remain in possession, as such, he is illegal occupant and liable to be punished under section 3/4 of the Act, 2005. Learned counsel, to a query, has admitted that the appellant had also lodged F.I.R in respect of same incident and after trial, the trial Court has acquitted the respondent, however, the criminal complaint will not be hit by the provisions of section 403 Cr.P.C, as the earlier trial was conducted by the Magistrate, whereas proceedings under Illegal Dispossession Act being special law are to be tried exclusively by the Sessions Judge. Learned counsel has further contended that registration of F.I.R. will not debar the appellant from filing the criminal complaint under section 3/4 of the Act, 2005 simultaneously in respect of same offence.

6. Conversely, learned counsel for the respondent has contended that the respondent on the police report under section 173, Cr.P.C. in respect of same incident was charged and acquitted by the trial court, as such the second trial in respect of the same incident amounts to double jeopardy and barred in terms of section 403, Cr.P.C. Learned counsel in support of his contention has relied upon the case reported as Abdul Khaliq, and others v. The State (1999 UC 163) wherein it has been held that the controversy as whether two complaints arising out of the same incident and facts and against the same set of accused can go side by side, the answer definitely is in negative as it is not permissible under section 403, Cr.P.C. Learned counsel has further contended that the title of the appellant over the said house is sub judiced before the competent civil court in a suit filed by Mst. Shireen Jamal Akhtar the actual owner of said house, the suit was filed before filing the instant criminal complaint, in the circumstances learned counsel has requested that appeal may be dismissed.

7. The perusal of R & P of trial Court reveals that the appellant in order to substantiate the case has examined himself only. The respondent's plea before the trial court was that the appellant had never been put in physical possession of the said house. The appellant in his cross examination while rebutting the plea of respondent has stated that possession of said house was handed over to him by attorney Mohammad Saeed in presence of two witnesses namely Atif and Murtaza and thereafter he was dispossessed illegally by the respondent, however he has not examined any witness in support of his version in that respect. The appellant in his evidence has also admitted the pendency of civil suit and the entire case of the appellant is based upon sale deed executed in his favour, which admittedly is pending adjudication prior to filing of the criminal complaint and in a matter reported as Iftikhar Ahmed v. Zulfiqar Ali and 3 others (PLD 2008 Lahore 59), referring the dictum of the Hon'ble Supreme Court it has been held that the Illegal Dispossession Act, 2005 covers all cases of illegal occupants without any distinction except those which were already pending before any other forum. The facts of the instant case are identical to that of above referred citation. The respondent in his examination under section 342 Cr.P.C. has denied the allegations and has brought on record certain documents showing his possession to be legally delivered to him by the owner of said house, the documents produced by the respondent are the revocation of general power of attorney executed by Mst. Shireen Jamal Akhtar in favour of her son Mohammad Saeed, who allegedly executed the sale deed in favour of appellant, general power of attorney executed on 1-9-2009 by Mst. Shireen Jamal Akhtar the owner of said house in favour of the respondent Mohammad Suleman Khan duly attested by the Consular Attache, Embassy of Pakistan, Riyadh. The appellant has not controverted the execution of above said document nor challenged the validity thereof before any competent authority; as such both the parties are claiming their possession over the said house on the basis of valid documents executed in their favour. In the circumstances the proper forum to decide the controversy with regard to the genuineness of documents and ownership of the said house, of course would be the civil court, where such suits are already pending. The findings of trial court in this case are based upon cogent reasons, fortified by the evidence as such, I do not find any reason for interference in the impugned judgment by accepting this appeal which does not fall within the criteria laid down by the Hon'ble Supreme Court in a case of Muhammad Usman and 2 others v. The State (1992 SCMR 48), which reads as under:-- "In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the finding of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extend to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carried with it the two well-accepted presumptions; one initial, that till found guilty, the accused is innocent, and two that again after the trial a Court below confirmed the assumption of innocence. (2) The acquittal will not carry the second presumption and will also thus lose the first one if one points having conclusive effect on the end result the Court below: (a) disregarded material evidence (b) misread such evidence (c) received such evidence illegally. (3) In either case the well known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumption keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4) The Court will not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to the interfered with, after scrutiny under the forgoing searching light, should be found wholly as artificial, shocking and ridiculous. In view of the discussion and dictum referred hereinabove, the criminal acquittal appeal is dismissed. AG/S-40/K Appeal dismissed.