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Criminal Acquittal Appeal No. 230 of 2011, decided 16th June, 2014.

----Ss. 3 & 3---Criminal Procedure Code (V of 1898), S. 417(2-A)---Illegal dispossession of property---Appeal against acquittal---Scope of Illegal Dispossession Act, 2005---Appellant/complainant had challenged order passed by the Trial Court, whereby respondent accused had been acquitted of the charge against him---Old litigation existed between the parties over the plot of land in question; and both the parties had filed civil as well as criminal proceedings against each other---Scope of Illegal Dispossession Act, 2005, was very limited and the court exercising powers under S.3 of that Act was competent to give findings with regard to illegal dispossession; and it was not the function of such court to decide or adjudicate upon title of the property and/or to give any finding in regard to the authenticity of a document---Claim of the appellant/complainant that he was in possession of the plot in question on the crucial date, was belied by his own statement in his application, wherein he had stated that on the said date, respondent/accused was occupying the plot in question---Appeal filed by the complainant against acquittal of respondent/accused was dismissed, in circumstances. 2009 SCMR 1066; 2010 SCMR 1254; PLD 2009 Kar. 65; PLD 2008 Kar. 400; PLD 2007 SC 423; PLD 2008 Lah. 358; 2012 SCMR 229; 2012 MLD 1652; PLD 2008 Kar. 480 and YLR 2008 Lah. 2259 distinguished. 2009 PCr.LJ 199 and PLD 2001 SC 384 ref.

----S. 417(2-A)---Appeal against acquittal---Scope---Approach for dealing with appeal against acquittal would be different and distinguishable from that of appeal against conviction, because in case of appeal against acquittal, presumption of double innocence of accused was attached to the order of acquittal---Order of acquittal could only be interfered with, if the same, on the face of it, appeared to be perverse, arbitrary, illegal, wholly illogical or unreasonable, or in case the reasons assigned by the Trial Court for acquittal were speculative; and of artificial nature, or the findings were based on no evidence.

----Benefit of doubt---Scope---For giving benefit of doubt to accused, it was not necessary that there should be many circumstances creating doubt---If a simple circumstance would create reasonable doubt in the prudent mind about the guilt of accused, then he would be entitled to such benefit, not as a matter of grace and concession, but as a matter of right. Muhammad Nawaz Khan for Appellant. Raja Basantani for Respondent No.1. Ms. Akhtar Rehana, A.P.-G. for the State. Date of hearing: 15th April, 2014.

Through this Criminal Acquittal Appeal appellant Ashfaq Ahmed has challenged the Order dated 25-4-2011 passed by learned IVth Additional Sessions Judge, Karachi East in Criminal Complaint No.111 of 2010 whereby respondent No.1/accused namely Zafar Iqbal has been acquitted from the charge under section 3/4 of illegal Dispossession Act, 2005. Precisely, the [acts of We case are that the appellant/complainant lodged complaint under section 3/4 of Illegal Dispossession Act, 2005 against respondent No.1 stating therein that he is absolute owner of Plot No.367/1, Survey No.302, Deh Mehran, Jaffer Bagh, Model Colony, Karachi by virtue of registered lease deed. After lease the appellant applied to Revenue Department and acquired Form-II. It is further alleged that respondent No.1, who belongs to land mafia, attempted to dispossess the appellant from the said plot by different means including filing of Suit No.1492 of 2009 which was dismissed vide order dated 11-2-2010. According to him, respondent No.1 acquired fake and bogus Form-II from Mukhtiarkar on the basis of fake sale agreement with one Mohammad Aslam. Respondent No. 1 attempted to dispossess the appellant/complainant on 8-5-2010 whereupon the appellant moved application to the concerned S.H.O. who, instead of taking action against the accused, got registered false FIR against the relatives of the appellant. On 22-8-2010 respondent No.1 along with some armed persons again came at the plot and by breaking wall entered into the plot in question, however on the intervention of the mohalla people, they fled away which incident was reported by the appellant and consequently, the SHO sealed the plot on 25-8-2010 by putting a lock thereon, but subsequently respondent No.1 with collusion of SHO and high-ups of the police by breaking the lock entered into the plot and started construction thereon, hence the appellant filed the criminal complainant against respondent No.l. After filing of criminal complaint, preliminary inquiry was conducted through SHO Police Station Model Colony who submitted his report and on taking congnizance, the trial court issued B.Ws. against the respondent, who made his appearance. Accordingly, the trial Court after recording evidence of the witnesses, got examined DDO Shahzaib Khan as court Witness who produced the relevant record. Thereafter, statement of the accused was recorded under section 342, Cr.P.C. who denied the allegations leveled by the complainant and produced utility bills in his defence, however, neither he got examined himself on oath, nor produced any witness in his defence. The learned trial Court, after hearing the counsel for the parties, dismissed the criminal complaint and acquitted respondent No.1 from the charge, hence this Criminal Acquittal Appeal. I. have heard learned counsel for the parties and have gone through the material available on the record with the assistance of the learned counsel for the parties. Learned counsel for the appellant contended-that the trial Court has erred on facts and in law while passing the acquittal order. According film, the complainant had proved his case through evidence and substantiated his title over the property through lease deed having been issued in his favour, but the trial court has passed the acquittal order in a hasty and mechanical manner, as such the impugned order having been passed in violation of the law and norms of justice, is not sustainable in law and liable to be set aside. He further contended that the trial court has not discussed the contentions raised and the law cited on behalf of the appellant in the acquittal order. According to him, the trial court without giving clue weight to the report of the SHO and the statement of DDO Revenue, has acquitted the accused. He prayed for setting aside of the acquittal order. In support of his case, he relied upon various decisions including 2009 SCMR 1066, 2010 SCMR 1254, PLD 2009 Karachi 65, PLD 2008 Karachi 400, PLD 2007 SC 423, PLD 2008 Lah. 358, 2012 MLD (Peshawar) 1652, PLD 2008 Karachi 480 and YLR 2008 Lahore 2259. Conversely, learned counsel for respondent No.1/accused contended that the order passed by the trial court is just and proper and sound reasons have been assigned for passing the acquittal order. He contended that contrary to the allegation of the complainant that he had been dispossessed by respondent No.1 on 26-8-2010, he himself stated in his application addressed to TPO Bin Qasim Town on 23-8-2010 that respondent No.1 was in illegal possession of his plot on the said date. He further contended that it is settled principle of law that presumption of double innocence of the accused is attached to the order of acquittal and acquittal order could be interfered with only in cases where the acquittal order is perverse, arbitrary, illegal, wholly illogical or unreasonable or when the findings of the trial court are based on no evidence. He prayed for dismissal of the acquittal appeal. In support of his contentions, he relied upon the case-law reported in 2009 PCr.LJ 199 and PLD 2001 SC 384. Learned A.P.-G., while adopting the arguments advanced by the learned counsel for the respondent, supported the impugned judgment and contended that the order has been passed according to legal norms and cogent reasons have been given for acquittal of the accused. She also prayed for dismissal of the acquittal appeal. In the instant case, admittedly there is old litigation between the parties over the plot in question and both the parties have filed civil as well as criminal proceedings against each other. During the course of his cross-examination, the appellant admitted as under: "It is correct that since 1982 till the year 2006, my name did not appear in the record with Revenue Department. It is also correct that my relative who purchased the plot No.368 his name also did not appear in the record of Revenue. At my subject plot I got approved temporary Kumla connection from KESC Department in the year 2010. I do not know whether at present the KUNDA connection available at premises was applied by the respondent/accused....The fact of mistake in the proposed plan came to my knowledge first time when the accused attempted to illegally occupy my plot on the basis of such mistake. It is correctly mentioned in the said application dated 15-10-2009 that one Akber Awan and Asad Gujar forcibly and on the strength of arms has over my plot. Vol. says the preset accused is also the member of such land grabbers to which Akber and Asad were members." The DDO Revenue, who was examined by the trial Court as Court Witness, admitted in his evidence that the subject plot is situated in agricultural land and the same is not included in the layout plan of Model Colony and there is no official lay out plan available with the Revenue Department duly prepared -under scheme. He further admitted that the owners of agricultural land themselves made plotting on the subject land without approval of the revenue department. He also admitted that respondent/accused la far Iqbal is in possession of a portion of plot No.368. The trial court in the Fight of the evidence recorded during the trial observed as under: "Careful perusal of the evidence of DDO revenue Malir reflects that the subject plot is situated between the plots No.368 and 367 in survey No.302 and the plots in its original positions were admeasuring 500 Sq. yds. which were bifurcated by the owners thereof at their own without approval from the Revenue department. Further in the circumstances of this case the plot No.368 is sho"wn admeasuring 250 Sq.yds, whereas the subject plot as per claim of the complainant is also admeasuring 250 Sq. yds. situated beside the plot No.368 and in such circumstances the measurement shown as to plot No.367 as admeasuring 500 Sq. yds. calls for thorough enquiry as to the effect that whether the plot in question is Plot No.367/1 or it is Plot No.368/1. Thus the statement of DDO Revenue Malir has worth to be considered that the plot in possession of the accused is the portion of plot No.368. Further the DDO Revenue has admitted that they usually entered the entries in the record of right on the approach of the claimant as to the land of the area where subject plot is situated. The complainant has asserted in his application to the police that he was dispossessed in front of all mohallah people but he brought no witness of mohalla to corroborate his version during the trial. Beside the above although with objection a photo copy of Exh.3/N was taken on record during the cross examination of the complainant, which is an application moved by the complainant himself to the TPO Bin Qasim Town on 23-8-2010 wherein the complainant has admitted that on such very date the accused was in possession of the subject plot and as such his subsequent allegation to have been dis-possessed by the accused on 26-8-2010 is self contradictory." The scope of Illegal Dispossession Act, 2005 is very limited and the court exercising powers tinder section 3 of the Act, is competent to give findings only with regard to illegal dispossession and it is not the function of such court to decide or adjudicate upon title of the property and/or to give any findings in regard to the authenticity of a document. If any authority is needed, reference may be made to 2007 PCr.LJ 1920 and PLD 2012 Sindh 390. The claim of the appellant that he was in possession of the plot in question on the crucial date viz. 26-8-2010, is belied by his own statement made in the application dated 23-8-2010 addressed by him to TPO Bin Qasim Town wherein he has categorically stated that on the said date the respondent/accused was occupying the plot in question. Moreover, during the evidence, the complainant/appellant produced copy of FIR as Exh.3/L which is dated 21-6-2010, according to which the respondent/accused was in possession of the plot in question on the said date viz. 21-6-2010. Now question arises that if the respondent was in possession of the plot in question on 21-6-2010, as per version of the appellant himself, then the allegation of the appellant regarding his dispossession at the hands of the respondent on 26-8-2010 has no legs. The case-law relied upon by the appellant are distinguishable having different facts, as it is well settled principle of law that each criminal case is to be decided on its own merits. Needless to emphasize that obvious approach for dealing with the appeal against the acquittal would be different and distinguishable from that of the appeal against conviction because in the former case presumption of double innocence of the accused is attached to the order of acquittal. It is well settled that the order of acquittal can only be interfered with if the same, on the face of it, appears to be perverse, arbitrary, illegal, wholly illogical or unreasonable or in case the reasons assigned by the trial court for acquittal are speculative and of artificial nature or the findings are based on no evidence. It is also now well settled that for giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If a simple circumstance creates reasonable doubt in the prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right. The upshot of above discussion is that the Criminal Acquittal Appeal, having no merits, is dismissed in limine. Above are the reasons for short order passed on 15-4-2014. HBT/A-88/Sindh Appeal dismissed.

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