1. Mehta Kailash Nath Kohli, J.--This appeal is directed against judgment dated 22nd January, 2008, passed by learned Sessions Judge Nasirabad at Dera Murad Jamali in Complaint No, 01 of 2007, whereby; complaint filed by appellants Samandar Khan and Maula Bakhsh sons of Haji Abdul Rahman has been dismissed and respondents-accused have been acquitted of the charge under Section 3(2) of the Illegal Dispossession Act, 2005.
2. Facts of the case, in brief, are that an application under Section 3(2) of Illegal Dispossession Act, 2005 read with Section 544/200 Cr.P.C. was filed in the Court of Sessions Judge Nasirabad at Dera Murad Jamali on 17th August, 2005 stating therein that appellants-complainants are shareholders of 3 acres of agricultural land in 15 acres of land recorded vide Survey Number 85, as well as, other lands i,e, Survey No, 86 Measuring 15 Acres 2 Rods and 11 Poles; Mini Survey No, 114 Measuring 1 acre; Survey No, 113 Measuring 15 Acres, 2 Rods and 37 Poles, Survey. No, 134 measuring 8 Acres; Survey No, 161 measuring 4 Acres; total measuring 60 acres and Survey No, 87 measuring 10 Acres out of which accused-respondent Mazhar Hussain has occupied 4 Acres through his peasants i,e, accused-respondents Manik, Ghulam Hussain Bakhsh, Piral, Shaadoo, Umed Ali, Mirza, Khudoo, Imamuddin, Sahab Khan, Mandoo, Haji Abdul Majeed, Imdad Machi, Suleman, Wadoo and Ghazi Khan; Survey No, 112 measuring 16 acres occupied by accused Haji Abdul Rahman through accused-respondents Noor Muhammad alias Nooral, Mazhar Hussain, Javed Hussain, Saifal, Manik, Ghulam Hussain, Bakhsh, Piral, Shaadoo, Umed Ali, Mirza, Khudoo, Imamuddin, Sahab Khan, Mandoo, Haji Abdul Majeed, Imdad Machi, Suleman, Wadoo and Ghazi Khan; Survey No, 135 measuring 9 acres occupied by respondent Haji Abdul Rahman; Survey No, 160 measuring 16 acres from which accused-respondent Haji Abdul Rahman occupied 3-1/2 acres. Total measuring 10-6- 1/2 acres, situated at Mouza Shori Drabhi Androon, Taluka Chattar, District Nasirabad. It was further stated in the complaint/application that partition was made by the orders of Executive District Officer (Revenue) Dera Murad Jamali on 1st December, 2001 and the complainants were put into physical possession, while the entries were, made into map of Mouza Shori Drabhi Androon, Taluka Chattar and directions were made to the Mukhtiar-e-Kar Chattar to implement the partition order.
3. It was further averred that complainant-appellants were put into possession of above survey numbers. Record reflects that accused-respondent Haji Abdul Rahman challenged the above order in appeal before the Land Commissioner/Chairman Revenue Tribunal No, 1, Quetta, which was allowed, by the Tribunal and accordingly order of Executive District Officer (Revenue) Dera Murad Jamali dated 1st December, 2001 was directed to be set aside. The aforementioned order of Revenue Tribunal was assailed by the appellants before Senior Member, Board of Revenue in revision petition, which was allowed and the learned Senior Member, Board of Revenue was pleased to set aside the order of Revenue Tribunal vide order dated 28th May, 2003. A Constitutional Petition No, 540/2003 was filed by accused-respondent Haji Abdul Rahman challenging the impugned order passed by Senior Member, Board of Revenue, which was dismissed by a Division Bench of this Court and order passed by Senior Member, Board of Revenue was directed to be maintained. It is the case of appellants that the order of Executive District Officer (Revenue) Dera Murad Jamali dated 1st December, 2001 with regard to partition was compiled with by the Tehsildar and report was submitted to the Executive District Officer (Revenue) Dera Murad Jamali. It is further case of appellants that complainants are/were enjoying their peaceful possession of the land in dispute till 1st of August, 2005, and, on the same day at 5:00 a.m. accused-respondents attacked upon the above agricultural lands of appellants and they were forcibly dispossessed by the accused-respondents. Following prayer was made in the application/complaint:-- "The complainants, therefore, humbly and respectfully beg to pray as under:--
(a) That this Honourable Court may be pleased to convict the accused persons from No, 1 to 21 under Section 3, Subsection (2) of Illegal Dispossession Act of 2005, and in furtherance, the possession of the above mentioned land may be handed over to the complainants through police or any other forceful agency;
(b) To order for compensation under Section 544 Cr.P.C. read with Section 3 Sub-section (2) and Section 8 of Illegal Dispossession Act, 2005;
(c) To pass order under Section 7(1), (2), (3) and (4) of Illegal Dispossession Act, 2005 put the complainants into possession of above land; (d)To pass the order under Section 6(i) and (ii) of Illegal Dispossession Act, 2005."
4. Initially the aforesaid complainant (Miscellaneous Application No, 40/2005) was dismissed by learned Additional Sessions Judge Nasirabad at Dera Murad Jamali vide order dated 12th September, 2005. Against aforementioned order Constitutional petition (S) 40/2005 was filed before this Court. This Court vide judgment dated 10th March, 2006, allowed the petition and accordingly the impugned order was set aside and the case was remanded to the trial Court to decide the matter in accordance with the provisions of law. After remand, on 14th April, 2006, learned trial Court directed enquiry by SHO and accordingly report was submitted on 29th April, 2006. Record reflects that charge was framed and prosecution produced following evidence i,e, PW-1 Samandar Khan (appellant), PW-2 Maula Bakhsh (appellant), PW-3 Muhammad Hassan son of Maula Bakhsh, PW-4 Nasrullah (Patwari). Statements of accused-respondents were recorded under Section 342, Cr.P.C. On conclusion of trial, learned Sessions Judge, Nasirabad. at Dera Murad Jamali, vide judgment dated 22nd January, 2008 dismissed the complaint in the following manner:-- "In the above discussed circumstances as well, as, evidence and the record shows, that there is no case is made out against the accused/respondents under the Illegal Dispossession Act, 2005, because in this respect the cases are pending trial in between the complainants and respondents since 2001. In my view the matter is civil in nature and is not come within the ambit of illegal dispossession Act, 2005, therefore, the charge against accused/respondents is failed and the complaint is dismissed while, the accused/respondents are acquitted of the charge.'
5. Against aforementioned judgment, present appeal has been filed before this Court. Mr. Muhammad Aslam Chishti, learned counsel appearing on behalf of appellants-complainants argued that the learned trial Court has seriously erred in acquitting the respondents as according to him as per report of the Investigating Officer, they have been dispossessed and there possession is established from the evidence on record. It was further stated that the judgment is based on misreading and misappreciation of the record. We have considered the arguments advanced by learned counsel for the appellants and perused the record. Learned trial Court acquitted the accused on appraisal of evidence had come to the finding; (i) that the proceedings relating to the property are pending before the High Court and the Hon'ble Supreme Court, while the case with regard to partition of property is also subjudice before Member, Board of Revenue, which facts were admitted in evidence; (ii) the order of Executive District Officer (Revenue) with regard to partition of the property was set aside and the case was remanded to the Member, Board of Revenue vide order dated 20th April, 2006. Referring to another witness i,e, PW-2, the learned Court, stated that the said witness did not know the Khasra number and Khatooni number, and claimed that they had obtained possession of the land in consequence of the partition; (iii) the SHO submitted his report, whereby; he has stated that bazgars are in possession of the property for the last 20 years. During the course of appraisal we found that this property was in the name of Government of Balochistan and vide order dated 3rd October, 2006, the same was transferred pursuant to title deed number 570 dated 22nd August, 2006, issued by Land Revenue Officer, Dera Murad Jamali relating to Khasra numbers 96 and 97 alongwith other order number 3564 dated 30th September, 2006 relating to Khasra numbers 62, 63, 83, 84, 85, 86, 87, 88, 110, 111, 112, 113, 114, 134, 135, 136, 137, 158, 159, 160, 161; the property was transferred in favour of Mst. Laila wife of Haji Abdul Rahman, Samandar Khan and Maula Bakhsh sons of Haji Abdul Rahman. Said document was produced as Ex: P/4-A. Examining the said document it appears that at the time of filing of the complaint, the appellants were not owners of the property and could not had invoked the provisions of Illegal Dispossession Act, 2005. This special Act was legislated on 6th of July, 2005, wherein by virtue of section 3 of the said Act the offence has been made punishable.
6. The word 'owner' has been defined in Section 2(d) of the Illegal Dispossession Act, 2005, which is reproduced herein-below:-- "2 (d) "Owner" means the person, actually owns the property at the time of his dispossession, otherwise than through a process of law."
7. Admitted position on record is that appellants were not owners of the property as per document (Ex: P/4-A) at the time of filing of complaint as the said entry of ownership was recorded on 3rd October, 2006, while; present proceedings were initiated on 17th August, 2005. Learned counsel for appellants was confronted with the said legal position, was not able to satisfactorily controvert the same. In the case in hand, from the perusal of evidence, it transpires that this is a dispute between legal heirs themselves and in order to settle their civil rights, the present proceedings were initiated, which fact is apparent from the perusal of evidence, as held by the trial Court. It is to further note that the present appellants claim that pursuant to partition made by the Executive District Officer (Revenue) Dera Murad Jamali they had come into possession. It has already been admitted by the complainants/ appellants that the said partition proceedings have already been set aside by the Hon'ble Supreme Court And presently the matter is subjudice before the Member, Board of Revenue. The learned counsel for appellants has not been able to point out any specific material omission or misreading or perversity of the judgment, where the jurisdiction to intervene the same to be exercised. The respondents have earned double innocence and the findings of the learned trial Court are based upon proper appraisal of evidence. It would be appropriate to reproduce herein-below the dictum laid down by the Hon'ble Supreme Court in the case of Ghulam Sikandar & another v. Mamaraz Khan & others (PLD 1985 SC 11) :-- "(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the, assumption of innocence.
(2) The acquitted will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
8. Following the above dictum of Hon'ble Supreme Court of Pakistan, we find no merit in this appeal, which is accordingly dismissed, in limine.