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Criminal Acquittal Appeal No. 228 of 1980, decided on 25th Novem ber, 1982.

‑‑ S. 447‑Criminal trespass, offence of‑Dispute with regard to possession and title of immovable property existing ‑ Civil Court a proper forum for adjudication of such disputes‑Accused having orders of allotment of disputed plots duly issued by Housing Society and on basis of such orders given possession of plots by competent authority ‑ Civil suit filed for declaration and permanent injunc tion in respect of disputed plots also decreed in favour of accused--- Interference with orders of acquittal of accused under section 447, P. P. C., declined, in circumstances.

1981SCMR510ref.

Muhammad Ibrahim Memon, Addl. A.‑G. (Sind) for the State,

Gul Zaman Khan for Respondents.

Date of hearing : 25th November, 1982.

‑This acquittal appeal is filed against the order of acquittal passed by learned Magistrate First Class, Orangi Town (West), Karachi, on 31‑12‑1979, in a case pending in his Court for offence under section 447. P. P. C. The learned Magistrate has passed the impugned order under section 249‑A, Cr. P. C., and acquitted the respondents after recording evidence of one witness only.

2. Shortly stated relevant facts giving rise to this appeal are that 'complainant Dost Muhammad son of Faqir Muhammad registered F. I. R. at Orangi Town Police Station on 10‑2‑1979, in which it is alleged that 'he and his wife Mst. Zahida Begum are owners of Plots Nos. S. T‑I/1 and S. T‑1/2, situate in Aligarh Housing Society in Orangi Town, which are illegally and unlawfully occupied by the respondents, who have raised a construction and are keeping huge drums of oil. It is further stated in F. I. R. that complainant tried to get back the possession but failed in his attempt. After requisite investigation the case was challaned in the Court of learned Magistrate, who passed order under section 249‑A, Cr. P. C. after one witness was examined.

3. We have heard Mr. M. I. Memon, learned Additional Advocate General for appellant/State and Mr. Gul Zaman Khan, learned Advocate for the respondents. It is stated by the learned counsel fort he respon dents that the order passed by the learned Magistrate under section 249‑A, Cr. P. C. is perfectly justifiable and is in accordance with the provisions of law. The learned Magistrate is competent to pass order of acquittal at any stage of the proceedings and if he is satisfied that there is no case on merits and the accused persons are bound to be acquitted ultimately after the finalisation of the proceedings, such order of acquittal can be passed by him. On merits it is further stated by him that there are five witnesses and none of them is eye‑witness in the sense that action com plained against, which is criminal trespass as alleged, is not seen by any one of them. The learned Magistrate has examined one witness namely P. W. Saleh Qaiser and has also seen 161, Cr. P. C. statements of other witnesses. From the perusal of the evidence and material on the record the learned Magistrate has come to the conclusion that the case is bound to end in acquittal. Remaining witnesses are formal in nature and some of them are Mashirs and then there is investigating officer. Additionally, it is submitted by the learned counsel that this matter is purely of civil nature because the respondents also claim title to the plots in question and also possession thereof. It is submitted that the respondents have not committed criminal trespass as alleged because they have got orders of allotments of those plots issued by Aligarh Housing Society and on the basis of such orders they were given possession of the plots by the com petent authority. Such evidence was also produced during the investiga tion of this case. In any case, it is submitted that the respondents had filed a suit for declaration and permanent injunction in respect of these plots and complainant in this case had been impleaded as defendant in that suit and that suit has been decreed now in their favour. We have been shown by the learned counsel certified copy of judgment and decree in favour of the respondents. Even otherwise the correct legal position is that when there is dispute with regard to the possession and title of immovable property the proper forum for adjudication of such disputes is the civil Court. Reference can be made to the case of Dr. S. F. Marts and others v. Sardar Masih and 3 others (1981 S C M R 510).

4. For the facts and reasons stated above we find no reason whatsoever to interfere with the impugned order and we dismiss the appeal.

Appeal dismissed.

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