WAZIR ALI Versus State
ANWAR HUSSAIN, J.--- The Appellants were tried, convicted and sentenced for imprisonment of 07 years and to pay fine of Rs.50,000/- each; in case of default in payment of fine they shall serve 06 months more imprisonment and further directed to pay compensation to the Complainant for Rs.30,000/- each; in case of default they shall serve six months more in prison vide Judgment dated 01.03.2015, passed by learned Additional Sessions Judge, Shahdad Kot, in S.C. No. 221 of 2011, arising out of Direct Complaint No.06 Of 2011, filed by Complainant/Respondent No.2, under sections 3 and 4 of the Illegal Dispossession Act, 2005, against the Appellants, before the learned Sessions Judge, Kambar @ Shahdadkot.
2. The facts narrated by the Complainant in the Complaint are that he is lawful owner of Agricultural Land bearing S. Nos. 388/1 and 388/4 measuring 6-38 acres, situated in Deh Belharo, Tapo Hyder Chandio, Taluka Miro Khan, Tehsil Sijawal (Taluka Sijawal), out of which the Accused/Appellants forcibly dispossessed the Complainant and occupied the area of 4-38 acres. The Complainant was in possession and cultivating the same through his harries. On 26.1.2011, the Complainant along with harries and P.Ws. namely Mour Mangi and Naveed Ali Jarwar, were available over the said land for seeding the wheat crop, when all of a sudden at about 12:30 p.m. the Appellants duly armed with deadly weapons came over there on tractor trolley and on gun point they forcibly ousted the Complainant Party from the said piece of land and illegally occupied the same. The Complainant approached the nekmards in respect of the same, but that went in vain and the Complainant along with said P.Ws. approached the Appellants for restitution of possession, the Appellants refused and pointed out the weapons at and extended threats to the Complainant. As such the Complainant filed the said Criminal Complaint under the Illegal Dispossession Act, 2005, against the Appellants before the learned Sessions Judge, who after calling reports from the Mukhtiarkar and the concerned SHO took cognizance and issued B.Ws. against the Appellants.
3. After supplying of case papers to Appellants at Exh.1, the Charge was framed at Ex.2 and the Appellants pleaded not guilty and claimed to be tried at Exh.2/A to 2/C.
4. Thereafter, in order to prove the Charge the Complainant P.W 1, examined himself at Exh.3, who produced Form-VII, and Complaint under sections 3 and 4 of Illegal Dispossession Act, 2005, at Exh.3-A and 3-B, respectively, P.W-2 Naveed Jarwar, who was examined at Exh.4 and other P.W. Mour Mangi, was declared hostile vide statement Exh.5, and thereafter the Complainant closed his side vide statement at Exh.6. Thereafter, the statements under section 342, Cr.P.C. of the Appellants/Accused, were recorded at Exh.7, 8 and 9, respectively, wherein they have pleaded innocence and Appellant Wazir Ali, pleaded that in the year 1990, the father of Complainant sold the land in question to his father through Sale Agreement; the Complainant has also executed written Iqrarnama, in his favour and since 1990 and he remained in possession of the said land and produced photostat copies of said Agreement dated 29.10.2011 and Iqrarnama. The Appellant Wazir Ali, examined two D.Ws. namely Hussain Bux and Gada Hussain, at Exh.10 and 11, respectively, and Appellants' Counsel closed their side vide Statement at Exh. 12.
5. After hearing the arguments and going through the evidence on record, the learned Trial Court vide impugned Judgment has convicted and sentenced the Appellants as stated above.
6. Learned counsel for the Appellants argued that since 1990, Appellants were in possession of land in question, which having purchased from the father of Complainant; the Complainant has tried to improve his case in evidence and there are material contradictions in the evidence of Complainant and eye-witness/P.W-2, Naveed Jarwar; and another Eye-witness Mour Mangi, was declared as hostile and not produced by the Complainant and as such the Complainant has miserably failed to prove the charge against the Appellants beyond reasonable doubt and impugned Judgment is not legal and proper. He further submitted that the Appellants and Complainant have patched up their differences outside the Court and possession of the land in question has been handed over to the Complainant and to this effect Applications duly supported by affidavits of the parties have been filed earlier; and further affidavits of Appellants duly sworn at Jail submitted in Court on 3.6.2016, and finally the Counsel prayed for setting aside the impugned Judgment and acquittal of the Appellants.
7. On the other hand learned Counsel for Complainant denied the sale of the properly in question to the Appellants and admitted handing over possession to the Complainant after impugned Judgment. He further submitted that the impugned Judgment is proper and legal.
8. Learned DDPP has supported the impugned Judgment and argued that the compromise between the parties is not affecting the conviction, as the offence in the matter is not compoundable in view of Schedule II of the Cr.P.C.
9. Heard arguments and perused the evidence available on record.
10. The case of the Complainant consists of ocular evidence of Complainant and his one witness and on perusal of the same it has been observed that there are exaggerations and contradictions. The Complainant in his Complaint has stated that he along with his harries and P.Ws. Mour Mangi and Naveed Jarwar, were available at the land for seeding wheat crop; whereas in Examination-in-chief the Complainant deposed that he along with Asghar Ali, Naveed Jarwar and Mour Mangi were sitting at the Agricultural land; the Complainant in his Complaint has stated that the Appellants came at the side with deadly weapons; and in examination-in-chief the Complainant deposed that Appellant Wazir Ali armed with Repeater Appellant Siddiq armed with gun and Appellant Shahzado armed with hatchet, came over the land. The P.W. Naveed Jarwar in his examination-in-chief has contradicted the Complainant by deposing that Appellant Wazir was armed with gun, Appellant Siddiq was armed with hatchet or rifle and Appellant Shahzado was armed with gun. Another material contradiction is that the Complainant in his cross-examination, has deposed that Naveed Jarwar and Hakeem brought the wheat seeds on two motorcycles; whereas Prosecution Witness Naveed Jarwar, in his cross-examination has deposed that they had brought 10 mounds of wheat seed on Chingchi. Further the Complainant in his examination-in-chief, has deposed that two unidentified persons also came along with Appellants, while in his cross-examination he has admitted that he has not mentioned the two unidentified accused in his Complaint.
11. With reference to the cases of Abdul Haque v. The State, reported in PLD 1996 SC 01, and Ashiq Hussain v. The State, reported in 1993 SCMR 417, it is settled principle of law of criminal administration of justice that the burden of proof the charge rests on the prosecution and the guilt of an accused to be proved beyond reasonable doubt by way of un-impeachable evidence. The Complainant in the matter has simply examined himself and produced one witness only, but in view of the above exaggeration and contradictions in their evidence and non-production of another eye-witness Mour Mangi, who was declared hostile by Complainant, creates doubt as to the truthfulness of the Complainant's case and the ocular evidence of Complainant and his sole witness does not inspire confidence. In this regard reference is made to the cases of Akhtar Ali v. The State reported in 2008 SCMR 6, Saeed Muhammad Shah v. The State reported in 1993 SCMR 550 and Sahib Khan v. The State, reported in 2007 MLD 1115 (D.B-Kar).
12. It is also settled principle of law that benefit of doubt always goes in favour of accused and for that purpose it is not necessary that there must always be multiple circumstances to create doubt, but a single circumstance creating a reasonable doubt as to the guilt of an accused entitles him to such benefit, not as a matter of grace and concession, but as matter of right. In this regard reliance is made on the case of Tarique Pervez v. The State reported in 1995 SCMR 1345 and case of Ghulam Qadir v. The State, reported in 2008 SCMR 1221.
13. In view of the above, I am of the view that the Complainant has failed to prove his case beyond reasonable doubt against the Appellants, as such conviction and sentence awarded to Appellants by way of Impugned Judgment are not sustainable in law and facts.
14. The above are the reasons for the Short Order dated 3.6.2016, whereby allowing the Appeal, the conviction and sentence awarded to the Appellants were set aside and they were ordered to be released forthwith if not required in any other case.
JK/W-10/Sindh Appeal allowed.