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Petitioner: Basar & others VS Respondent: The State Complainant: Fakhar-ul-Jamil
Court Name: Sindh High Court Judge(s): Arshad Hussain Khan Title: Basar & others vs The State Complainant: Fakhar-ul-Jamil Case No.: Cr. Appeal No. 136 of 2014 Date of Judgment:2017-02-13 Reported As: 2017 SHC 134 Result: Instant appeal allowed
JUDGMENT
JUDGMENT ARSHAD HUSSAIN KHAN, J. The present criminal appeal has been preferred against the judgment dated 23.4.2014 passed by IInd Additional Sessions Judge Thatta, whereby the appellants were convicted under Section 3(2) of the Illegal Dispossession Act, 2005 to suffer R.I. for two years each with directions to pay Rs.25,000/- each as compensation to the complainant. In case of default in payment of compensation the accused persons shall suffer three months R.I. more. 2. Brief facts arising out of the present appeal are that complainant is the owner in possession of agricultural land bearing Survey No.617/1-A, 617/1-D and 617/1-C total measuring 1-20 acres, situated at Deh Badipur Taluka Jati, District Thatta [subject land] . The family members of the complainant also hold 280 acres of land in the surrounding and adjacent to above survey numbers. The survey Nos.617/A, 617/1D and 617/IC are situated by the side of road leading from Sujawal to Chuhar Jamali, which is being owned/possessed and cultivated by the complainant with the help of his son and local Haries. It is the case of complainant that in the last days of May, 2012 appellants namely (i) Basar , (ii) Moosa and (iii) Babu all sons of Qasim by caste Otho, who are allegedly the land grabbers and also belong to a group of land mafia have illegally grabbed the above land and occupied the same without having any lawful authority and thereby dispossessed the complainant from the said land. The complainant filed application before the Deputy Commissioner , Thatta. The report was called from Assistant Commissioner and Mukhtiarkar , Thatta, Jati after getting the site visit reported that the appellants have forcibly dispossessed the complainant and occupied his land. 3. The statement under Section 200 Cr.P.C. of the complainant had been recorded who reiterated the contents of his complaint the reports were called for from SHO PS Mureed Khoso and Mukhtiarkar Jati who supported the contention of the complainant. Inquiry under Section 3 and 4 of the Illegal Dispossession Act, 2005 was made bailable warrants were issued to the accused. Copies under Section 265-C, Cr.P.C. were supplied to the
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accused and Charges against them were framed for commission of alleged offence to which the appellants had pleaded not guilty and claimed to be tried. 4. The complainant in support of his case examined himself as Exh.03 and produced (i) Village Form VII (Exh.3/A) , (ii) copy of Sketch (Exh.3/B) , (iii) Report of Mukhtiarkar Jati (Exh.3/C) and (iv) report of SHO PS (Exh. 3/D), PW-3 Muhammad Ali, Mukhtiarkar Jati District Thatta as Exh.04, PW-3 Asif Ahmed SHO Mureed District Sujawal as Exh.05 who produced sketch (Exh.S/A) and report (Exh.S/B) . Whereas the statement of Appellants were recorded under Section 342, Cr.P.C. wherein they stated that they are innocent and have been falsely implicated by the complainant who himself encroached upon their land of Survey No.87 to which application was moved to Mukhtiarkar and Deputy Commissioner but no action was taken by them against the complainant. 5. The learned trial Court determined the following two issues:- 1. Whether in the last days of May, 2012 accused Basar , Moosa and Baboo without having any lawful authority or title or right, illegally encroached / dispossessed the complainant from his land bearing Survey Nos.617/1A, 617/1D and 617/1C total admeasuring 01-20 acres situated in Deh Badipur Taluka Jati District Thatta? 2. What should the judgment be? After recording of the evidence the learned trial Court convicted and sentenced the appellants vide its judgment dated 23.04.2014, which is impugned in the instant proceedings. Relevant portion of the impugned judgment is reproduced as under:- "18. I have perused the evidence in the light of submission made by the learned counsel for the parties. The learned defence counsel for the accused persons has not put a single question/suggestion from the complainant regarding the illegal dispossession by the accused persons from the land in question. The contentions of learned counsel for complainant that the land, which has been occupied by the accused persons are situated in their land main road of sujawal and Chuhar Jamali and due to this they are facing inconvenience. The evidence of Mukhatiarkar and SHO both officials witnesses have supported the contentions of complainant regarding the illegal encroachment land belonging to the complainant. The learned defence counsel for accused did not seek any contradiction from the complainant regarding disputed land. The report of Mukhtiarkar has been produced as Ex.3/C, wherein it has categorically mentioned that the land in question is illegally encroached by accused persons. 19. Both the official witnesses have deposed before this Court that the land in question is mutated in the name of complainant, whereas, the accused persons have illegally occupied the land bearing S.Nos. No. 263, 617/1-A, 617/1-C, 617/1-D which is owned by complaint Fakhar-ul-Jameel son of Muhammad Ishaque Shaikh and such entry is available on their record. PW SHO Asif Ahmed has stated that he made inquiry from the local people and they disclosed to him that the disputed land situated in S.No. 617/A, 617/C and 617/D is originally owned by the complainant Fakhar-ul-Jameel. The learned defence counsel for the accused persons did not seek any contradiction from both officials witnesses in respect of illegal dispossession of disputed land in favour of the accused persons. 20. The learned defence counsel has failed to shatter the evidence of complainant and the official witnesses in their cross- examination by putting question nor brought any material contradictions regarding the illegal dispossession of the complainant from the land in question by the accused persons from S.No. 617/A, 617/D and 617/C total admeasuring 01-20 acres situated in deh Badipur, Taluka Jati District Thatta. The accused persons have stated in their statement u/s 342 Cr.P.C. that the complainant himself encroached their land situated in survey No.87 and they moved such application to Mukhtiarkar and Deputy Commissioner but no action was taken by them. The accused persons have failed to produce any documentary evidence in support of their contention along with their statement u/s 342 Cr. P.C. Even otherwise they have denied to examine them on oath u/s 340 (2) Cr. P.C. and failed to examine any witness of locality in their defence in support of their version, which clearly shows that they do not have any substantial evidence viz any title documents or oral evidence regarding their contentions in respect of the possession of the disputed land. The plea of the accused persons that the complainant has encroached upon their land situated in survey No.87 but the accused persons have not produced any evidence which shows that the complainant has made any encroachment over the land of accused persons. The purpose of the illegal Dispossession Act, 2005 is to protect the right of possession of
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lawful or occupier and not to perpetuate the possession of illegal occupants. In this regard I sought strength from the case law relied upon by the learned defence counsel reported in PLD 2007 S.C. 423 . 21. The complainant has produced sufficient material and documents in his support, the report of Mukhtiarkar and SHO also supported the version of complainant; hence I am of the humble opinion that the complainant has established his case regarding the of fence of illegal Dispossession Act, 2005 against the accused persons. 22. In view of the above circumstances, and discussion, I am satisfied that complainant has established his case beyond the shadow of doubt against the accused persons, therefore, I answer point No.1 as proved. Point No.2 23. Since the accused persons are not habitual offenders, therefore, I am taking lenient view being first offenders and convict accused Bassar son of Qassim (2) Moosa s/o Qassim and (3) Babu son of Qasim all by cast Otho under Section 3(2) of the Illegal Dispossession Act 2005 for the alleged offence to suffer R.I for two years each with directions to pay Rs.25,000/-each as compensation to the complainant. In case of default in payment of compensation of Rs.25000/- each, the accused persons shall suffer three months R.I more. Accused persons are present on bail, their bail bond stands cancelled and surety discharged. They are taken into custody to serve out sentence awarded herein above to them today by this Court. Furthermore, under Section 8 of illegal Dispossession Act 2005 SHO Jati/Mureed Khoso is directed to restore the possession of subject land to the complainant after proper demarcation under the supervision of Mukhtiarkar (Revenue ) Jati after expiry of appeal period." 6. Learned counsel for the appellants during the course of his arguments while reiterating the contents of memo of appeal has contended that the impugned judgment is against law and facts both. Further contended that the appellants have no previous criminal record and are innocent and have been falsely involved in the case with malafide intentions and have no concern whatsoever with the commission of alleged offence. It is also contended that learned trial court while passing the impugned judgment misread the evidence and as such acted with material irregularities and illegalities in exercise of jurisdiction vested in it. Further contended that the learned trial Judge seriously erred in shifting the burden of proof on the appellants/accused persons for the purpose of proving their innocence whereas such a burden always lies on the prosecution and never shifts on the accused. It is also contended that the learned trial court while passing the impugned judgment has failed to consider that the version given in the complaint was never corroborated through any circumstantial evidence. Furthermore, the Prosecution witnesses so produced in the case clearly improved their version to strength the prosecution case. The learned trial judge has also failed to apply his judicial mind to consider that when a witness improves his version to strengthen the prosecution case his improved statement subsequently made in court cannot be relied upon as this affect the credibility of the witness making the evidence doubtful in nature and the veracity of such witness, being doubtful, cannot be relied upon. Further contended that the learned trial Judge not only ignored the deliberate dishonest improvement but on the contrary tried to justify the same. Per learned counsel wherever doubt has arisen, the same erroneously resolved in favour of the prosecution contrary to the established principles of law that the benefit of doubt always given to the accused. Further contended that the case law cited by learned counsel for the appellants completely ignored by the learned trial Judge. It is also contended that the conviction of the appellants is based upon conjecture, surmises and totally unsatisfactory evidence, such conviction of the appellants is therefore, not sustainable in the eye of law. Learned counsel lastly argued that the instant appeal may kindly be allowed and the appellant be acquitted from the case. Learned counsel in support of his stance has also relied upon the following case law; 1. PLD 2010 SC 661(Bashir Ahmed v . Additional Sessions Judge, Faisalabad and others) By virtue of recent pronouncement of larger bench of the Hon'ble Supreme Court in the case of Mst. Gulshan Bibi and others v. Muhammad Sadiq reported in PLD 2016 Supreme Court 769 the case of Bashir Ahmed does required consideration. 2. 2001 P .Cr.LJ 1312 (Muhammad Jumman v . The state) It is held in the case that one single circumstance in a criminal case leading towards the real doubt is sufficient to acquit the accused on benefit of doubt. 3. 2004 SD 258 (Muhammad Rafiq v . The state)
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In this case scope of Article of 71 of Qanun-e-Shahadat are discussed. It is held that evidence of witness who neither heard nor saw anything nor perceived anything would not come within ambit of Art. 71. Such evidence would not be admissible. 4. 2009 SCMR 230 (Muhammad Akram v . The State) It is held in the case that for giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts, single circumstances, creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right. 6. 2004 YLR 216 (Gul Muhammad alias Guloo v . The State) It is, inter alia, held that where despite availability of independent witnesses, none of them was produced to act as witness of incident, the presumption would be drawn that had they been produced, then they would not have supported the story of the incident of the case, as narrated by the prosecu tion, and that benefit of such circumstances is necessarily to be warde d to the accused. It is also held that bene fit of even single doubt created by defence in the prosecution case would go to accused and he need not to show that the prosecution case suffered from more than one doubts. 7. PLD 2005 SC 63 (Pir Mazharul Haq and other v. The State) It is held in the case that where the prosecution has failed to discharge the onus of proof by adducing cogent, concrete and forthright evidence the presumption of guilt would not arise against him and thus the question of conviction would not arise. It is also held that in no circumstances, the defence should be expected to prove the accusation. 8. PLD 2007 Lahore 231 (Zahoor Ahmed and others v . The state and others) This case was upheld by the Hon'ble Supreme Court in the case of Bashir Ahmed (PLD 2010 SC 661), however , since the case of Bashir Ahmed (supra) has already been declared as not good law by the larger bench of the Hon'ble Supreme Court in the case of Mst. Gulshan Bibi (Supra) therefore, the case of Zahoor Ahmed does not required consideration. 7. Conversely, learned counsel for respondent No.2/complainantafter oral submissions has also filed synopsis/written arguments wherein he has vehemently controverted the stance of the appellants in the present appeal. Learned counsel while rebutting the above said arguments has urged that the complainant is the owner of subject land. It is also urged that the appellants being land grabbers, belong to a group of land mafia, are illegally and unlawfully occupied the said agricultural land of the complainant in the month of May 2012. It is also urged that against the criminal act of appellants, the complaint filed criminal complaint under section 3, 4 and 8 of illegal Dispossession Act, 2005 before the Court of IInd Addl. District and Sessions Judge, Thatta and the said complainant was finally decided by the learned judge on 23.04.2014, which judgment is impugned in the present proceedings. Learned counsel also argued that the facts of the case has been evaluated by the learned trial Court and after proper appraisal of the evidence available on record passed the judgment impugned in the instant proceedings. He further argued that the respondent/complainant has proved his ownership by the title documents and report of Mukhtiarkar is also in favour of the respondent/complainant. It is also argued that in the case of illegal dispossession there is no need to produce any witness to prove the ownership of the complainant. It is also argued that Haries were belonged to Otho caste hence they did not come forward to give evidence against the appellants/accused as the appellants are also belong to the same caste. It is further argued that the defence counsel during the cross-examination failed to ask any question regarding applica tion which was submitted to the Deputy Commissioner prior to filing of the criminal complaint, hence the stance of the respondent/complainant gone un rebutted. Learned counsel furthe r argued that the impugned judgment is within the four corners of law and hence, doesn't warrant interference by this court in the instant proceedings. Learned counsel in support of its stance relied upon the following case law: 2010 MLD 1920 (Muhammad Ali v. Abdul Haq and others) In this case it is held that the complainant had made out a prima facie case of having invoked the provisions of Illegal Dispossession Act, 2005 as complainant had produced the title documents along with the registered sale deed, which was not only created a legal presumption of ownership of the land in question, in favour of the
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complainant, but also reflected the confirmation of possession of the complainant on the land, resultantly the criminal revision filed by Applicant/accused was dismissed. 8. Learned APG (state counsel), however , opposed the contentions of the learned counsel for the respondent/complainant and argued that the impugned judgment is suffered from material illegalities as the same is not based upon proper appreciation of evidence available on record and further the learned trial judge while passing the impugned judgment has failed to apply his judicial mind and the law hence, the judgment impugned herein is not sustainable in law and liable to be set aside. 9. I have heard learned counsel for the parties as well as learned APG and with their assistance perused the record. 10. From the perusal of the record, it appears that the respondent No.2/complainant on 04.06.2012 filed a complaint before the Deputy Commissioner Thatta, against the appellants for taking over illegal and forcible possession of subject land. For the sake of ready reference relevant portion of the said letter is reproduced as under: "I Date: 04/06/212 The Deputy Commissioner District Thatta Sindh. SUBJECT : COMPLAINT FOR TAKING LEGAL ACTION AGAINST BASAR OTHO, BABO OTHO & MOOSA OTHO ALL SONS OF QASIM OTHO FOR TAKING ILLEGAL AND FORCIBL Y POSSERSSION OF MY AGRICUL TURAL LAND SUR VEY NO.617/1A, 0.2 GUNT A, 617/1D 0.10 GHUNT A, 617/1C 0.30 GHU NTA, HAFIZ ISHAQUE SHAIKH FARMS DEH BAHADUR TALUKA JATI, DISTT . THATTA. Respected Sir, It is respectfully submitted that I am the sole owner and occupant of the subject land for the last 40 years and I am paying all the government dues against the subject land regularly . That about 5 days ago, the subject culprits entered into my land along with 30 to 40 persons equipped with arms, and in my absence, they threatened and beaten my Harris and forcibly grabbed my subject land and started cultivation without any lawful authority and upon query, they also cut off and takeaway with them by force four babul 30 years old trees which cost around 200,000/- (two hundred thousand rupees) and upon query, they are issuing threats for dire consequences to me and my family members. That about some years back, the same culprits had tried to grab my subject land but they could not get succeeded and now they are again trying to do so. In the light of above facts and circumstan ces, you are requested to kindly look into this matter on urgent basis and help me for re-taking the physical possession of my subject land from the above said land grabbers and take appropriate legal action against them for committing such criminal act, to maintain justice and peace in the area. Thanking you, Sincerely yours. Sd/- FAKHAR-UL-JAMIL SHEIKH SON OF MOHAMMAD ISHAQUE SHEIKH. [Underlining is to add emphasis] The respondent/complainant thereafter filed a private complaint bearing No. 08 of 2012, under section 3, 4 and 8 of Illegal Dispossession Act. of 2005, before the Court of Sessions Judge, Thatta. The complainant in the said proceeding also recorded his statement under section 200 Cr.P.C., which for the sake of ready reference is reproduced as under: " I am complainant and am owner of agricultural land bearing survey Nos. 617/1-A, 617/1D and 617/C measuring 1-20 acres, situated in Deh Badipur , Taluka Jati, District Thatta. I and my family own 280-00 acres land adjacent and surrounding to said survey numbers which is called M. Ishaque Farm. I produce village Form-VII in respect of entire land. The three persons namely Basar , Moosa and Babu all sons of Qasim Otho are land grabbers type
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persons, have forcibly dispossessed me from my Survey Numbers 617/1-A, 617/1D and 617/C illegally and criminally trespassed over the said land in the last days of May 2012. I moved such application to Revenue Authorities. Report are called confirming my contention but nothing was done in the matter . Hence, I approached this Honourable Court that accused namely Basar , Moosa and Babu all sons of Qasim Otho resident of Deh Badipur have illegally dispossessed me from the said land which is situated on the main road leading to Sujawal to Chuhar Jamli thereby caused us inconvenience. I therefor pray that this Honourable court may be pleased to direct the accused persons to restore my possession over to survey numbers referred above and to punish them in accordance of Illegal Dispossession Act. I may further add that during pendency of proceedings Court may grant interim relief directing the accused to hand over the possession of the land to me. I pray for justice and action according to law ." [Underlining is to add emphasis] The appellants/accused persons filed their statements under section 342 of Cr.P.C. wherein they while denying the allegations leveled by the respondent/complainant in the complaint, have stated that they are innocent and falsely implicated in this case by the complainant. Further the complainant himself has encroached upon their land situated in Survey No.87, in this regard though they had submitted application before the Mukhtiarkar and Deputy Commissioner but no action was taken by them. 11. Before going into further discussion it would be advantageous, for the sake of ready reference, to reproduce Sections 3, 4 and 8 of Illegal Dispossession Act of 2005:- "3. Prevention of illegal possession of property, etc.- (1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property . (2) Whoever contravenes the provisions of the subsection (1) shall, without prejudice to, any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code. 4. Cognizance of offence. - (1) Notwithstanding anything contained in the Code or any law for the time being in force, the 'contravention of section 3 shall be triable by the Court of Session on a complaint. (2) The of fence under this Act shall be non-cognizable. (3) The Court at any stage of the proceedings may direct the police to arrest the accused. 8. Delivery of possession of property to owner , etc. - (1) On conclusion of trial, if the Court finds that an owner or occupier of the property was illegally dispossessed or property was grabbed in contravention of section 3, the Court may, at the time of passing order under subsection (2) of that section, direct the accused or any person claiming through him for restoration of the possession of the property to the owner or , as the case may be, the occupier , if not already restored to him under section 7. (2) For the purpose of subsection (1), the Court may, where it is required, direct the officer-in-charge of the police station for such assistance as may be required for restoration of the possession of the property to the owner or, as the case may be, the occupier ." From the perusal of above provisions, it appears that the main ingredients of Section 3 of Illegal Dispossession Act, 2005 are Dispossess, Grab, Control, Occupy, without lawful authority and Intention to dispossess, grab, control or occupy property from owner. This shows that referred provisions are foundation for provisions of illegal possession and any person who has no lawful authority to control or occupy the property shall be punished under the said provisions, however , the application of said provision can only be justified when there is clear Intention to do such act of dispossession, hence the question of Mens rea is to be proved by the complainant on all counts and it is basic principle of law of evidence that he who alleges a fact has to prove the same and especially in criminal cases the proof must be beyond any reasonable doubt. In this regard reliance is placed on the case of Waqar Ali and others v. The state and others (PLD 201 1 SC 181 ).
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12. From…
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