1. ' BHAJANDAS TAJWANI, J.- This criminal acquittal appeal has been filed assailing the order dated 11- 11-2009, passed in Criminal Miscellaneous Application No,283/2009, of the learned II Additional Sessions Judge Karachi South, whereby he has acquitted the accused/ respondents involved under sections 3 and 4 of the Illegal Dispossession Act.
2. ' The brief facts leading to this case are that the appellant filed a Criminal Complaint No,283/2009, alleging therein that he is one of the legal heirs of Mst. Bashiran, his late mother, who owned the shop bearing No,G-7, situated on Plot No,l, Sheet No,BR-3, Bandar Quarters, Karachi. The late mother of the appellant mutually distributed the properties and the appellant has been running business in the said shop.
3. ' It is further alleged that on 26-3-2009 the present respondents during midnight time after breaking the lock of the said shop took out the material from the said shop and occupied the said shop at about 11-00 p.m. The appellant approached the police station but his complaint was not lodged.
4. ' After necessary preliminary inquiry the complaint was brought on the record and charge in the matter was framed but thereafter application under section 265-K, Cr.P.C, was moved on behalf of the accused on the ground that charge was groundless and that there is no probability of accused to be convicted. The learned trial Court after hearing the parties and perusing the record acquitted the respondents by way of the impugned order, holding that there is civil dispute between the brothers and sisters and that the sisters have sold their share to one Muhammad Hanif Lakhani and that for getting the share in the property the parties are litigating before the Civil Court by filing a Suit, which is pending adjudication.
5. ' I have heard the learned counsel for the appellant, learned counsel for the respondents and learned Assistant Prosecutor-General Sindh, appearing for the State.
6. ' Learned counsel for the appellant has contended that the impugned order is against all canons of justice as charge was framed and thereafter trial of the case would have been started but before that the application for acquittal was considered by the trial Court and accused were acquitted, therefore, the trial Court has reviewed its own order and according to learned Advocate this has happened, as the learned Judge, who framed the charge was transferred and after his transfer another learned Judge has allowed such application. The learned counsel stated that even dispossession at the hands of co-owners or pendency of dispute in the civil Court will not defeat the proceedings initiated under the provisions of Illegal Dispossession Act and that after framing of the charge the trial Court should have not considered or recorded the acquittal of the accused under section 256-K, Cr.P.C.
7. ' Learned counsel for the respondents Mr. Anwar Ahmad, has referred the application of the appellant filed before the S.H.O, in respect of the same incident in which he has taken another version in respect of the same incident and on the basis of this application the F.I.R, was lodged at P.S. Kharadar in Crime No,366/2009 under sections 147, 149, 452, 448, 506, 337-A (i) and 427, P.P.C, in which the present appellant has given totally different version as to time, number of accused and act of alleged occupation of his shop. He further contended that there is dispute between the appellant, his brother/ respondent No,2 and three sisters (present in Court), who are the co-owners of the property and the other co-owners except the appellant have sold the property to one Muhammad Hanif Lakhani and that no act of dispossession has taken place but the proceedings have been initiated by the appellant in order to usurp the shares of other co-owners for which a suit has been filed in this Court and rights of the parties are to be determined by way of civil litigation, the criminal law set in motion to resolve the civil dispute.
8. ' Mr. Abdul Rehman Kolachi, learned Assistant Prosecutor-General, appearing for the State, has supported the impugned order and according to him that when the F.I.R, in respect of the same incident by disclosing different version has been lodged and the respondents cannot be tried or convicted twice in respect of the same alleged offence, therefore, the learned trial Court has rightly acquitted the accused.
9. The admitted position is that the appellant and respondent No,2 are brothers, having three sisters who are present in Court and all are co-owners of the said shop by virtue of inheritance and except the appellant other co-owners claim that they have sold this property to one Muhammad Hanif Lakhani and the present appellant has also lodged criminal prosecution by lodging the F.I.R. For the same incident with different story and version and set of accused. The accused cannot be tried or punished twice in respect of the same alleged incident, which will be violation of Article 13 of the Constitution of Pakistan, therefore, the proceedings under the provisions of Illegal Dispossession Act cannot sustain before learned trial Court.
10. ' Reverting to the next contentiorf of the learned counsel for the appellant, that since the charge was framed therefore after framing of the charge the acquittal of accused cannot be recorded, except on completion of trial. In order to clarify this point section 265-K, Cr.P.C. Is reproduced as under:-- "265-K. Power of Court to acquit accused at any stage. Nothing in this Chapter shall be deemed to prevent the Court from acquitting an accused at any stage of the case; if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence".
11. The definition of above section will reveal that the Court can acquit the accused at any stage. The words 'any stage' will connote the stage even before or after framing of the charge. The word charge means allegation or charge levelled against the accused in the complaint or charge sheet, thereafter, if the trial Court is of the opinion that above provisions of section 265-K, Cr.P.C. Are attracted, it can exercise the jurisdiction and discretion vested in it by acquitting the accused at any stage of the case.
12. ' In this case the trial Court has considered the material before it and decided the fate of the case with reasons that the dispute is between brothers and sisters inter se on the property which is subjudice before this Court in a suit, the rights of parties with regard to ownership and possession can only be determined in the said suit and pendency of proceedings before the trial Court will have resulted in harassm ent and unnecessary humiliation as the same were to be faced as accused, therefore, there was no probability of respondents being convicted in the alleged offence and the trial Court has rightly exercised the discretion at proper time to secure the ends of justice.
13. ' For the foregoing reasons, this criminal Acquittal Appeal No,283/2009 being without any substance is hereby dismissed in limine.