Mst. KHURSHEED BEGUM Versus Syed MAHMOOD SHAH
ABDUL MAALIK GADDI, J.--- This criminal acquittal appeal is directed against the Judgment dated 31.03.2017 passed by the learned Xlth Additional District and Sessions Judge, Karachi-South, in Private Complaint No.102 of 2012, filed by Appellant against the Private Respondents under Sections 3 and 4 of the Illegal Dispossession Act, 2005, whereby the learned trial Court after full-dressed trial acquitted the Respondent No.1 including the (Proclaimed Offenders Respondents Nos.2 to 5).
2. The brief facts of the case as unfolded in complaint are that Complainant Khursheed Begum was in possession of the house on Plot No.AK-10-2S-25 in Gali No.26, Gul Muhammad Lane, Chawkiwara, Karachi till 19.12.2012 when she was dispossessed by accused with their connivance with each other and complainant can identify them. All of accused trespassed in above house and threw away valuable goods and broken them and further stolen prize bonds worth Rs.20,000/- so also clothes. Deceased Abdul Wahid the father of complainant was in possession of above house since long and he died on 27.03.1968. After the death of her father complainant Khursheed Begum remained in possession of above house and she was unmarried. The above house was actually owned by one Usman and father of complainant was residing there with permission of said owner. The owner of the house Mr. Usman died leaving behind widow Mst. Sakina, therefore, possession of complainant and her deceased father was never disturbed by late Usman and his widow Mst. Sakina Complainant purchased the above house from Mst. Sakina vide agreement dated 15.07.2003 and paid a sum of Rs.100,000/- as sale consideration. Prior to alleged offence, accused being legal heirs of Abu Bakar Shah filed rent case No.805/1985 (Old No.1939/1976) against Usman through is legal heir before the Court of 1st Senior Civil Judge Karachi South for ejectment of Mst. Sakina from house while falsely claiming to be owner landlords of house but Mst. Sakina denied relationship of landlord and tenant and pleaded that Abu Bakar Shah had obtained fraudulent judgment in Suit No.1675/1979 which was not binding on her. Such rent case was dismissed and F.R.A. No.404/ 2001 and F.R.A. No.405/2001 filed against that order were also dismissed by Court of 7th Additional District Judge Karachi South with observation that Mst. Sakina was in possession of above house in her own rights as legal heir of her deceased husband. Complainant was in lawful possession of the house on the basis of sale agreement executed between her and widow of owner of the house but she was dispossessed by the accused illegally hence this case.
3. It appears from the record that Respondents Nos. 2 to 5 were absent from the trial Court and after adopting all legal formalities they were declared as proclaimed offenders vide order of the trial Court at Exhibit Nos.2 to 4. Formal charge was framed against the Respondent No.1/accused on 18.04.2015 at Ex.5, but he pleaded not guilty vide his plea at Ex.5/A. In order to prove his case, complainant Mst. Khursheed Begum examined herself at Ex.6 and produced copy of sale agreement at Ex.6/A and receipt of said sale consideration at Ex.6/B, copy of order dated 06.02.1989 passed in Rent Case No.805/1985 (old No.1939/1976) at Ex.6/C, copy of order dated 02.08.2006 passed in F.R.A. No.404/2001 at Ex.6/D. Complainant further examined CW-2 Mst. Gul Nisa daughter of Muhammad Ibrahim at Ex.7, CW-3 Sohail son of Abdul Aziz at Ex.8 and CW-4 ASI Muhammad Deen Awan at Ex.09 who produced his reports dated 16.03.2012 and 08.03.2012 at Ex.9/A and Ex.9/B respectively. Case was then transferred to the Court of XIth Additional Sessions Judge Karachi South and record was received on 10.12.2016. Learned counsel for Complainant then closed the evidence of Complainant vide statement placed at Ex.10.
4. The statement of Respondent No.1/accused was recorded at Ex.11 wherein he pleaded innocence while stating that assertions of complainant Khursheed Begum are false and accused Amir Shah was not his son and at relevant time of incident he was at Egypt. Respondent No.1 / accused exhibited Judgment passed by VIII Rent Controller Karachi South on 17.05.1986 in Rent Case No.2580/1980 Re: Abu Bakar Shah v. Abdul Majeed and others at Ex.10/A, judgment passed in F.R.A. No.522/1988 by this Court at Ex.10/B, Judgment dated 13.11.1985 passed by IIIrd Senior Civil Judge and Rent Controller Karachi South in Rent Case No.4663/81 Re: Abu Bakar Shah v. Abdul Majeed at Ex. 10/C, order passed in Execution Application No.20/88 Re: Abu Bakar v. Abdul Majeed and others passed by VIII Rent Controller Karachi South at Ex.10/D, order passed in F.R.A. No.316/1989 Re: Mst. Khursheed Begum v. Abu Bakar Shah and others by this Court at Ex.10/E, two mashirnamas of Bailiffs submitted in Execution Application No.20/1988 at Ex.10/F and Ex.10/G respectively, order passed by this Court in C.P. No.S-441/ 2006 and S-442/2006 Re: Abu Bakar Shah v. Usman and others and Abu Bakar Shah v. Abdul Majeed, lease of plot bearing Nos.524 and 526 bearing registration No.1266 dated 17.08.1982 at Ex.10/H and 10/L, passport bearing No.LN5147361 at Ex.10/J. Respondent No.1 / accused however neither did examine himself on oath nor did he volunteer to produce evidence in his defence.
5. On perusal of record it reveals that the Respondents Nos.2 to 5 are called absent and none is present on their behalf and during pendency of this appeal, time and again notices were issued to the said Respondents at their given addresses including NBWs but they were not served/ executed. As such parties' advocates have been heard.
6. Mr. Syed Ali Ahmed Tariq, learned Counsel for the appellant has contended that the Judgment passed by the learned trial Court is perverse and the reasons are artificial, vis- -vis the evidence on record; That the grounds on which the trial Court proceeded to acquit the respondents are not supportable from documents and evidence on record. He further submitted that the respondents have been directly charged and that discrepancies in the statement of witnesses are not so material on the basis of which respondents could be acquitted. He further contended that the learned trial Court has based its findings of acquittal mainly on the basis of minor contradictions on non-vital points of the evidence of the complainant's witnesses and that the complainant's evidence and documents on record have not been properly appreciated. During the course of arguments, he has also reiterated the same facts and grounds which he has urged in the memo. of this appeal and submitted that in view of the documents and evidence on record this appeal may be allowed by setting aside the impugned Judgment and awarded an exemplary punishment to the Respondents / accused. In support of his contentions he has relied upon the following case laws:-
(1) Abdul Rehman alias Boota and others v. The State and another (2011 SCMR 34)
(2) Kashif Saddique v. The State (2008 PCr.LJ 1039 Lahore)
(3) Ghulam Rasool v. The State (PLD 2013 Sindh 214)
(4) Abdul Qahir alias Sadiq and 3 others v. Bibi Aisha and 2 others (PLD 2012 Balochistan 189).
7. Conversely Mr. Shabbir Ahmed Shaikh learned Counsel for the Respondent No.1 has supported the impugned judgment by arguing that the accused/Respondent No.1 is absolutely innocent and has not committed any crime. He further submits that the Complainant/Appellant is neither owner nor has any legal right over the property in dispute besides, never remained in possession of said house as alleged. He has also denied all averments pleaded by Complainant in Complaint and also denied the grounds of appeal and also challenged the veracity of agreement executed between Mst. Sakina and Complainant. He further submits that the learned trial Court while delivering the Judgment has already discussed all the points involved in this case in detailed which needs not to be interfere by this Court.
8. Mr. Abdullah Rajput learned Deputy Prosecutor General Sindh has also supported the impugned judgment and submits that the impugned judgment passed by the learned Presiding Officer of the trial Court is perfect in law and on facts needs not to be interfered by this Court.
9. I have heard the learned counsel for the parties at a considerable length and perused the documents and evidence on record with their able assistance.
10. That after careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of the offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is settled principle of law that burden is always upon prosecution/ complainant to prove the case against the accused beyond shadow of doubt. Keeping in view of this basic touch stone of criminal administration of justice, I have examined the evidence/documents on record and come to the conclusion that complainant has failed to prove her case against the respondents for the reasons that Complaint has been filed by Complainant on 25.01.2012, however in para-1 of the Complaint the Complainant has averred as under:-
"That complainant was in possession of house, situated on Plot No.K-10/190 bearing Excise and Taxation No.AK-10-2S-26, Gali No.26, Gul Muhammad Lane, Chakiwara, Karachi till 19.12.2012, when she was dispossessed by the accused persons with active connivance and collusion of other accused whose names are not known to the complainant, however she can identify them/ trying to ascertain their names. All of them trespassed into the said house and thrown all the valuable goods and those were broken and Prize bonds of Rs.20,000/- and valuable clothes, were stolen by them."
From the perusal of above it reveals that Complaint was filed much prior of occurring of alleged incident which does not appeal to mind. When this infirmity, contradiction and lacuna in the case of complainant was confronted to learned counsel for the Appellant for his explanation, he has no satisfactory answer with him.
11. It is noted that the Complainant alleged in para-3 of her Complaint that she purchased the subject property through an agreement dated 15.07.2003 from Mst. Sakina in the sum of Rs.100,000/- and she paid all amount through payment receipt on record, but on perusal of said documents the plot number as mentioned in the said agreement is altogether different as mentioned in para-1 of the Complaint. This aspect of the case also creates doubt in the case in claim of the appellant. Not only this the attesting witnesses viz. Mst. Sakina, Abdul Rauf and Mukhtiar Ahmed who are allegedly the witnesses of the said agreement and payment receipt have not been examined in this case to prove the particular facts. Original sale agreement and original payment receipt have not been produced in evidence these documents are unregistered. Not only this the Stamp Vender namely Zahoorul Haq Advocate from whom the stamp paper was purchased and Mashkoor Ahmed Advocate (Notary Public) have not been examined. They were best witnesses to prove the sale agreement executed between Appellant and Mst. Sakina. No reason has been assigned that why they have not been examined. Under these circumstances, these documents cannot be safely relied upon. Even otherwise sale agreement dated 15.07.2003 does not confer any right or title of the subject property in favour of the Appellant. Be that as it may, the ownership of the property can only be transferred under the following terms:-
"(i) through registered sale deed as provided under Section 54 of the Transfer of Property Act, 1882:
(ii) through registered gift deed as provided under Section 122 of the Transfer of Property Act, 1882 or under Islamic Law;
(iii) through registered exchange deed as provided under Section 118 of the Transfer of Property Act, 1882; or
(iv) by way of inheritance on the death of muslim owner to his legal heirs under Islamic Law."
Obviously, the case of the appellant Mst. Khursheed Begum does not fall within any of the aforesaid categories. No convincing or tangible evidence on record to show that the Respondents have by force dispossessed the Appellant from the subject property or that the Appellant was the owner of the subject property. It is the case of the Respondent No.1 that on the day of alleged incident he was available in Egypt being far away from disputed house but the appellant has also failed to prove that he was available in Pakistan at that time. No FIR of the incident has been lodged.
12. I have gone through the evidence on record along with impugned Judgment and find number of contradictions in between evidence of complainant's witnesses which are material and fatal Jo the complainant's case and these contradictions/ lacunas and infirmities have already been highlighted by the learned trial Court in its Judgment of acquittal. Learned counsel for the Appellant could not show the specific part of the Judgment wherein the learned trial Court has committed any gross illegality or irregularity. The case laws cited by the learned Counsel for the appellant have been perused and considered by me, but did not find applicable to the facts of the present case.
13. Considering all the aspects of the case, I have come to the conclusion that the trial Court has rightly dismissed the Complaint filed by the Complainant and acquitted the Respondents and the impugned Judgment contains valid reasons to acquit the Respondents, hence does not require any interference by this Court. I may further observe here that there is clear distinction in appeal against conviction and appeal against acquittal. It is settled law that accused who has/have been acquitted in crime can claim double presumption of innocence, one at the pre-trial stage and the other he/they may earn on the basis of judgment of acquittal in his/their favour from the Court of competent jurisdiction. The competent Court in the instant matter has rightly acquitted the respondents after examining the entire evidence. Therefore, I see no reason to interfere with the impugned judgment. Consequently, this criminal acquittal appeal is dismissed along with listed application(s), if any.
14. Before the parting with this judgment, it appears that parties are/were in litigations with regard to the same subject matter, therefore, this judgment shall not apply in the pending litigations in between the parties.
JK/K-19/Sindh Appeal dismissed.