'CH. IFTIKHAR HUSSAIN, J.- Habib Ullah, Zia Ullah and Azhar Shamim alias Jhangi through Writ Petition No,6389 of 2009 have called in question the judgment dated 9-9-2009, recorded by Malik Khalid Mehmood, learned Addl. Sessions Judge, Dera Ghazi Khan whereby ( he has convicted them under section 3(2) of the Illegal Dispossession Act No,XI of 2005, in a complaint case brought by Abdul Manan (petitioner in Writ Petition No,7380 of 2009) and sentenced them to undergo three years R.I. Each and fine of Rs,20,000 each and in default thereof to further suffer six months S.I. And Rs,30,000 to be paid by each of them to the complainant as compensation under section 544, Cr.P.C, and in default thereof to further undergo six months S.I. They were also directed to restore the possession of the disputed property to the said petitioner/complainant.
3. As both these writ petitions have arisen under common set of facts and hence are being disposed of by this single judgment.
4. Briefly the facts relevant for the disposal of these petitions are that Habib Ullah, Zia Ullah and Azhar Shamim alias Jhangi (hereinafter to be referred as the petitioners) were tried under section 3(2) of the aforesaid Act for having forcibly dispossessed the said Abdul Manan (hereinafter to be referred as the respondent) from House No, 45/46, Block-C, Dera Ghazi Khan (hereinafter to be referred as the disputed property) on the night between 27/28-2-2008.
'They on the conclusion of their trial were held guilty of such charge and so, convicted and sentenced as narrated above.
5. They feeling themselves aggrieved of their conviction and sentence have brought the same under challenge by way of the aforesaid first Writ Petition No,6389 of 2009.
'Respondent Abdul Manan feeling himself dissatisfied of their quantum of sentence has brought the other Writ Petition No,7380 of 2009, for enhancement in the same up to ten years imprisonment.
6. After pre-trial proceedings, they were formally charged under section 3(2) of the Act ibid. They pleaded not guilty. The respondent produced two witnesses namely Abdul Rehman (P.W.2) and Azhar Hussain, Inspector (P.W.3) in support of his case besides his own self as P.W.1. The petitioners after the conclusion of their evidence were examined under section 342, Cr.P.C. They denied the allegation appearing against them in the prosecution evidence. Their except Azhar Shamim alias Jhangi stance was that the complainant on the evening of 27-2-2008, had himself delivered the possession of the disputed property to them in presence of the witnesses and he thereafter had brought the complaint against them in order to usurp the arrears of rent amounting to Rs, 1,25,000 besides the electricity bill, whereas the stance of Azhar Shamim alias Jhangi is that he has falsely been roped in to restrain him to pursue their case. They, however, opted to lead evidence in their evidence and produced Sh. Mehmood Ahmad (D.W.l) and Muhammad Ashraf Qureshi (D.W.2).
7. The learned trial Court after hearing the parties came to the conclusion that they have committed the act complained of. It, so, has held them guilty of the charge and convicted and sentenced them as mentioned above.
8. It has been argued on their behalf that it stands established on the record that they are the owners of the disputed property and the complainant's stance is that he had taken the disputed property on rent from one Inam Qadir and Junaid-urRehman had taken the same from him (Inam Qadir) and thereafter, he became tenant under him, while none of these persons has been produced by him in the evidence in support of his such plea and hence, his version remained unproved on the record; that the complainant himself has vacated that property and voluntarily handed over the vacant possession of the same to them and this has so been proved by their evidence on the record and such fact has erroneously been over looked by the learned trial Court causing serious prejudice to them; and that all this shows that the learned trial Court has fallen in error in passing the impugned judgment of their conviction and sentence and it was the result of misreading and non-reading of the evidence on the record. In support of their such plea the reliance has been placed on the cases of Sattan Kumar v. Muhammad Yousaf 2009 PCr.LJ 1186 Kar., Muhammad Akram and 9 others v. Muhammad Yousaf and another 2009 SCM R 1066, Nazir Ahmad v. Asif and 4 others PLD 2008 Kar.94 and Zahoor Ahmad and 5 others v. The State and 3 others PLD 2007 Lah.
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9. Converse to that the learned AAG as well as DPG assisted by the learned counsel for the respondent (complainant) have supported the impugned judgment saying that it is well based on the evidence on the record; that the petitioners' version that the respondent/complainant himself has vacated the disputed property and delivered the vacant possession of the same to them is ridiculous as it is hard to believe that the respondent after having vacated the property had gone to register the criminal case against them with the police and then brought the complaint under the said Act against them as had he voluntarily vacated the same he had no need to proceed against them in all such ways; that it stands established on the record that they have forcibly dispossessed him from the disputed property and so have rightly been convicted and sentenced; and that the authorities referred to by their side are not aptly applicable to their case as the same have proceeded on different facts and circumstances than their case and so these are distinguishable from the same.
10. The learned counsel for the respondent (complainant) besides supporting the above contentions of the learned AAG and DPG has submitted that the sentence awarded to the petitioners is inadequate in the facts and circumstances of the case and the same may be enhanced upto ten years.
11. I have carefully considered the submissions made on behalf of the parties and perused the record.
12. As said earlier that the complainant in order to substantiate the charge against the petitioners besides his ownself has produced two witnesses named above. He himself has appeared as P.W.1 and stated that he had taken the house from one Junaid-ur-Rehman on rent Rs,4,000 per month and has set up a sweet factory there and on the night between 27/28-2-2008, Habib Ullah, Zia Ullah and Azhar Shamim alias Jhangi along with six unknown persons have scaled over the wall of the same and at that time Habib Ullah was armed with pistol, whereas remaining with sotas, and they forcibly occupied it and also took over his different articles lying there and cash Rs,3,00,000. The evidence of his witness Abdul Rehman is also on the similar line. Although, he is his employee but the same itself was not enough to brush aside his evidence. He has fully supported his version and stated that how the petitioners and others have occupied the disputed property. His testimony in all particulars is in conformity to his (respondent) version i.e, time and the mode A of occurrence and there had been found no inconsistency in the two. Inspector Azhar Hussain (P.W.3), who was the previous S.H.O. Of Police Station City, Dera Ghazi Khan has also supported his version to much extent. According to him, he on the receipt of the order of the Court had investigated the case and came to the conclusion that the disputed property was given on rent to the complainant by the petitioners about 3-1/2 years ago and he but did not pay them the rent as well as the electricity charges and so, they (petitioners) forcibly occupied and locked it and the complainant got registered case F.I.R. No,75 dated 28-2-2008 under sections 380, 448, 452, 148, 149, P.P.C. With the said police station against them. He proved his report Exh.PC/1 comprising of six pages. He was cross-examined by the petitioners' side at quite some length but nothing favourable to them has been elicited from the same. It may be interesting to mention here that he was suggested though denied by him that the complainant himself has delivered the key of the disputed property to Habib Ullah on 27-2-2008 and the next day he got registered a false case against them.
13. The crux of the evidence of their (petitioners) witnesses namely Sh. Mehmood Ahmad and Muhammad Ashraf Qureshi is that the respondent (complainant) himself has vacated the disputed property and he has done so in their presence. So, the line of evidence of the petitioners is that the respondent himself had vacated the disputed property and delivered them the possession of the same and he thereafter, in order to usurp their arrears of the rent to the above turn and the electricity charges has devised their prosecution by way of the complainant under discussion.
14. It is interesting to note here that the learned trial Court has mainly been influenced by the circumstance appearing from their (petitioners) own stance that the complainant himself had vacated the property and thereafter had initiated proceeding against them. According to it, this is not so believeable as he when had vacated the property as per their saying, then what was the need with him to have proceeded against them in such a way.
15. This approach or conclusion or inference of it seems to be absolutely logical as the respondent when had himself vacated the property, if it was actually so, then why he could get registered the aforesaid criminal case and bring the complaint against them. This is simply not understandable.
'This conclusion of the learned trial Court, thus, from such version of the petitioners is quite logical and appealing to reason as it is hard to believe that he (respondent) had vacated the property voluntarily and delivered the key of the same to the petitioners and then for nothing, he initiated the proceedings of criminal nature against them. So, this plea of the petitioners seems to be absolutely hollow and devoid of any intrinsic worth. It is their own stance in this regard that he on the next day of the vacation of the disputed property had got registered the criminal case against them. In the background of such analysis of the situation, the evidence of the respondent that they had forcibly dispossessed him on the night between 27/28-2-2008, is more appealing to reason and confidence inspiring. The learned trial Court, thus, was absolutely right to rely upon the same and discarding their (petitioners) version. Their such version was absolutely hollow and it so was rightly rejected and not relied upon.
16. The argument of their learned counsel that the respondent did not produce either Inam Qadir or Junaid-ur-Rehman in his evidence to support his version is hardly in such circumstances of any worth or value as the possession of the respondent over the disputed property as tenant is an admitted fact on the record by their own self. He, therefore, was an authorized occupant over the same. His possession over it by no stretch of imagination could be said to be an illegal or unauthorized one. This fact, however, stands established on the record that he was dispossessed therefrom on the aforesaid date; and time and in the way as has appeared in his evidence, which could not be shaken by their evidence. Therefore, this argument its quite irrelevant and without force as well and so, the same is repelled as such.
17. Similarly the other contentions raised on their behalf have al so been found to be without force.
Those are also repelled being so.
18. The above mentioned esteemed authorities, thus, referred to by their side are not aptly applicable to their case as those cases have proceeded on absolutely different and distinguishable facts and circumstances than that of their case.
19. The charge of forcible dispossession of the respondent from the disputed property against them fully stands proved on the record. They, therefore, have rightly been convicted and sentenced. The impugned judgment, therefore,, is open to no exception. The same, therefore, is upheld.
20. As regards the Writ Petition No,7380/2009 of the respondent (complainant) containing the prayer for enhancement in their (petitioners) sentence, I also find that the same to 1 be without any force. The sentence provided in the aforesaid Act for such as offence no doubt is extendable to t en years and fine and the victim awardablie compensation in accordance with the provision of section 544, Cr.P.C. I, but in the given circumstances of, the case, find that the sentence awarded to them is quite adequate and sufficient as there must be some proportion between crime and punishment. I, thus, have not been convinced from any good argument that it is liable to be enhanced. The writ petition brought by the respondent (complainant) is also without force.
21. Thus, both the writ petitions are liable to be dismissed. These, therefore, are dismissed.