SHAHID ALI KHAN Versus ALI ASHRAF alias WILAYAT CHANDIO
KHADIM HUSSIAN M. SHAIKH, J.--- The captioned criminal acquittal appeal is directed against the judgment dated 06.09.2019, passed by the learned Sessions Judge, Dadu, in Sessions Case No.662 of 2016 re-Shahid Ali Khan Thebo v. Ali Ashraf alias Wilayat Chandio and others, for offence under Section 3(2) of Illegal Dispossession Act, 2005, whereby the respondents, namely, 1) Ali Ashraf alias Wilayat son of Ghulam Ali, 2) Akhtar Ali son of Noor Nabi, 3) Masood Ali son of Noor Nabi, 4) Ghulam Hussain son of Mohammad Bachal, 5) Akhtiar Ali son of Mohammad Soomar, 6) Shabir son of Wazeer Ali, 7) Dino alias Dinal son of Buxial, 8) Nadeem son of Liaquat Ali, 9) Gulzar Ali, and 10) Munawar Ali son of Mohammad Khan, all by caste Chandio, have been acquitted of the charge.
2. Briefly the facts of the case are that complainant Shahid Ali Thebo filed the subject complaint under the provisions of Illegal Dispossession Act, 2005, alleging therein that on 15.09.2016, at 5.30 p.m., accused, namely, 1) Ali Ashraf alias Wilayat son of Ghulam Ali, 2) Akhtar Ali son of Noor Nabi, 3) Masood Ali son of Noor Nabi, 4) Ghulam Hussain son of Mohammad Bachal, 5) Akhtiar Ali son of Mohammad Soomar, 6) Shahir son of Wazeer Ali, 7) Dino alias Dinal son of Buxial, 8) Nadeem son of Liaquat Ali, 9) Gulzar Ali, and 10) Munawar Ali son of Mohammad Khan, all by caste Chandio, illegally dispossessed him on gunpoint from his agricultural land measuring 4-34 acres out of Survey No.116, situated in Deh Seerabad, Taluka Khairpur Nathan Shah. After necessary formalities, the complaint was registered and brought on the regular file.
3. A formal charge was framed against the accused, to which they pleaded 'not guilty' and claimed to be tried.
4. Record reflects that after framing of charge, an application under section 265-K, Cr.P.C. was filed by the accused which was allowed by the learned Trial Court vide order dated 05.05.2017. The complainant challenged that acquittal order before this Court by filing Cr. Acquittal Appeal No.S-31 of 2017, which was disposed of vide order dated 08.6.2018, whereby the acquittal order dated 05.05.2017 was set-aside and the matter was remanded to the learned trial Court for deciding the case on merits after recording evidence of the parties.
5. At the trial, complainant Shahid Ali examined himself at Ex.17, who produced copy of complaint, Deh Form VII, registered sale deed and record of rights at Ex.17-A to 17-E; PW-2 Noor Mohammad at Ex.18; PW-3 SIP Mohammad Ibrahim Bozdar at Ex.20, who produced report with statements of Karim Bux and Piar Ali at Ex.20-A to 20-C; and, PW-4 Ghulam Shabir Kalhoro, Mukhtiarkar, K.N. Shah at Ex.21, who produced copies of record of rights and letter at Ex.21-A to 21-H. After closure of the complainant's evidence, statements of accused were recorded under section 342, Cr.P.C., wherein they denying the allegations, professed their innocence and claimed to have been falsely implicated in this case due to their dispute with the complainant. The accused also filed several documents.
6. At the conclusion of trial and after hearing the parties' counsel, the learned trial Court acquitted the accused ('the respondents') of the charge vide impugned judgment dated 06.09.2019.
7. Having felt aggrieved by the said judgment, complainant Shahid Ali Thebo ('the appellant') has preferred the present criminal acquittal appeal.
8. The learned Counsel for the appellant has mainly contended that the learned trial Court has not properly appreciated the evidence brought on record; that the appellant by examining himself and his witnesses proved his case against the respondents beyond reasonable doubt; and, that the impugned judgment passed by the learned trial Court is illegal. Learned Counsel prays that the appeal may be allowed and the respondents may be convicted.
9. From a perusal of the record, it would be seen that according to the appellant, the respondents illegally and unauthorizedly dispossessed him from land bearing Survey No.116, situated in Deh Seerabad, Taluka Khairpur Nathan Shah, and whereas the respondents claimed that Government had introduced Goth Abad Scheme and `Sanads' have been issued in their favour. From the evidence, it would appear that both the parties are disputing over the land belonging to The Government. The appellant has not filed any document except the impugned judgment, which reveals that Mukhtiarkar, K.N. Shah, who was examined at Ex.21, has deposed that:--
"It is fact that entry No.19 reveals that word "New Allotment" is mentioned. It is fact that entry No.19 reveals survey No.116 seems to be inserted subsequently and pen of dark blue ink has been used and the rest of survey numbers are mentioned in the said entry with pen of light blue ink. No any T.O. Form in favour of Hayat in respect of Survey No.116 is available in our Revenue Record."
10. Patently, the appellant and the respondents both claim themselves to be owner of the subject property, but none of the parties has clear title over the subject property which rather is a Government Property. The appellant is claiming that the respondents have illegally occupied their houses in Survey No.116 and whereas the accused have claimed that they are in possession of plots allotted to them under Goth Abad Scheme being Government Land and they are residing in the State Land. It further reveals that during pendency of the subject complaint before the learned trial Court the respondents have filed First Class Suit No.20 of 2018 re-Ali Sher and others v. Shahid Ali and others, for declaration, cancellation of allotment order, registered sale deed revenue entries and permanent injunction, before the Court of Senior Civil Judge, K.N. Shah, which is still sub judice there, as is revealed from the observations of the learned trial Court in the impugned judgment. The learned trial Court has acquitted the respondents extending them benefit of doubt on failure of the complainant to prove his case against them beyond reasonable doubt. It needs no reiteration that after acquittal of the accused by the Court of competent jurisdiction, presumption of double innocence is attached to the acquittal judgment, which normally does not call for interference unless the acquittal judgment or order is found arbitrary, capricious, fanciful and against the record. I have seen the impugned judgment dated 06.09.2019, passed by the learned trial Court, which is apt to the facts and circumstances of the case, and same suffering from no illegality or misreading or non-reading of the evidence does not call for any interference in exercise of jurisdiction under the provisions of section 417(2), Cr.P.C. And thus, this criminal acquittal appeal is liable to be dismissed. These are the reasons of short order announced by me on 22.11.2019, whereby this criminal acquittal appeal was dismissed.
JK/S-89/Sindh Appeal dismissed.