1. ' SHAHID ANWAR BAJWA, J.--- A complaint under section 3(1) and (2) Illegal Dispossession Act, 2005 was filed by the complainant against the present appellant and two other persons. It was stated in the complaint that complainant was lawful owner and occupant of Flat No,D-16, 3rd Floor, Gulshan Complex, Plot No,241, ' Tapo Songal Deh Okewari, Rashid Minhas Road near old Drive in Cinema Karachi, which she obtained and purchased 'on the basis of a registered general power of attorney and she was lawfully occupying the same. It was stated in the complaint that in connection with her duties with Motorway Police she had to go to Islamabad for training. While she was there, on 24-11-2005 accused persons illegally and forcibly dispossessed the complainant's sister along with her family and occupied the said flat. She further stated that on making report to the police, since police did not take any action she approached the Court under section 22-A, Cr.P.C. And on its order F.I.R. Dated 24-7-2006 was registered against accused persons. Police caused delivery of possession of the flat on 4-8-2006 but just after two liours accused persons again illegally occupied the same. Consequently, she again moved the police. After investigation, police submitted report under section 173, Cr.P.C. And it was declared as "B" Class. Thereafter direct complaint was filed in the Court of District and Sessions Judge.
2. ' Charge was framed against the present appellant in the following words:--- "That you accused, Mustaqeem son of Ghulam Muhammad along with co-accused Arshad son of not known and Yousuf Rajput son of not known firstly on 24-11-2005 has illegally and forcibly dispossessed the complainant, Mst. Shazia Ali Korai from her lawful occupation of Flat No,D-16, 3rd Floor, Gulshan Complex situated on Plot No,214, Thpo Songal Deh: Okerwarai, Rashid Militias Road, subsequentlye possession was restored thereafter due to intervention of police but ereafter on 4- 8-2006 you have again illegally occupied the aforesaid flat belonging to the complainant Mst.
3. Shazia Ali Korai, thereby you have committed an offence punishable under section 3/4 of Illegal Dispossession Act which is within the cognizance of this Court."
4. ' Thereafter evidence of complainant lwas recorded. She produced a copy of general power of attorney executed on 7th September, 2005 and also produced her sister. Present appellant after his statement was recorded under section 342, Cr.P.C. Gave statement on oath. His version was that an agreement was executed between the present appellant and the complainant on 1-8-2005 and he paid Rs,20,000 at the time of execution of agreement and thereafter cheque for Rs,80,000 was paid. This cheque was returned and in lieu thereof cash was. Paid. Thereafter, the following further payments were stated to have been made. Rs,1,50,000 on 17-8-2005, Rs,67,000 on 7-8-2005. Then Rs,9750 and thereafter payment of Rs,66,000 to House Building Finance Corporation. It was stated by the present appellant that he was consequently put in possession. Illegal dispossession was denied. The appellant produced one Muhammad Anwar, General Secretary of Union and Association of the residents of flat complex and also occupant of neighbouring Flat No,D-15, one Touseef Azad as his witnesses.
5. ' After hearing arguments vide judgment dated 27th August, 2009 the present appellant was convicted and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs,50,000 and in case of failure in making payment of fine, to further undergo simple imprisonment for three months. CompensatidA of Rs,1,00,000 in accordance with provisions of section 544, Cr.P.C. Was also allowed. It was also ordered that delivery of possession be given to the complainant. Being aggrieved by the judgment, this appeal has been filed.
6. ' Learned counsel for the appellant made the following submissions:---
(1) That complainant is an Inspector in police. In spite of this on her F.I.R. The case was declared "B"
7. Class.
(2) That complainant failed to prove her ownership.
(3) That she has not produced any neighbourer and no one from Union appeared in her favour.
8. Learned A.P.-G. Submitted that no document establishing the possession was handed over by the complainant to the accused was produced. Learned counsel for complainant submitted that it was alleged that agreement of sale was signed on 1-8-2005 while power of attorney was executed on 20-9-2005. He further submitted that agreement of sale does not have any schedule for payment stated in it. He also referred to ,a cheque (Cheque No,20773) which was issued by the accused to the complainant and submitted that after the cheque had been given, how the cheque again came in possession of the accused.
9. ' I have considered the arguments submitted by the learned counsel. I have also gone through the record and proceedings of the case.
10. ' First witness was the complainant herself. She stated that on 21-11-2005 she went to Islamabad to receive training and while she was in Islamabad she was informed by her sister that on 24-11-2005 her family was dispossessed of the flat. She further stated that when police was approached they put them back in possession, but within two hours they were again dispossessed by the accused persons. She admitted in cross-examination that civil suit had been filed by the accused in respect of the same property, which is pending adjudication. She also admitted that in that civil suit (Civil Suit No,1042 of 2006) written statement was filed. Para. No,2 of the written statement may be reproduced here:--- "(2) That the contents of para.3 of the plaint are partly admitted and partly denied being false, misconceived and based on manoeuvred documents. It is submitted that the defendant No,1 had received only Rs,20,000 in cash at the time of agreement to sale and thereafter the, plaintiff gave cheque dated 6-8-2005 in the sum of Rs,80,000 which was deposited but it was dishonoured and returned back to the plaintiff and he promised to pay the above said amount in cash to the defendant No,1 but he did not pay the same to the defendant No, 1 . It is submitted that the receipt shown as Annexures "B/4", "B/5" and "B/6" are bogus and the defendant No,1 had not received the above said amount from the plaintiff in any manner."
11. ' She further stated that she had no knowledge about assertions made in para. No,2, as it has been made by her counsel without her consent. She stated that she could produce utility bills, which she consequently did but all the utility bills that she produced were unpaid bills. She is not eye-witness to the alleged act of dispossession because she stated that it was her sister, who informed her in Islamabad that her sister had been dispossessed first as well as second time. In her cross- examination the complainant admitted that she is not eye-witness of the occurrence. However, she denied suggestion that she handed over possession of the subject flat to the accused.
12. ' Her sister also appeared as witness and narrated the incident of 24-11-2005. She did not say a single word about the allegation of second dispossession. She stated in her cross-examination that at the time of dispossession from the flat in question 'inhabitant of the building came out and made enquiry about the mishap. She did not produce any of the inhabitants. Although the complainant claimed that police put her sister in possession again and within two hours she was dispossessed once again, no Police Officer has been produced or summoned as a witness. So far as act of dispossession is concerned in respect of the second dispossession, there is no assertion by the sister of the complainant. On allegation of dispossession there is solitary testimony of sister of the complainant. In para.2 of her written statements, the complainant specifically admitted that there was a sale agreement and she received Rs,20,000 in consequent of that agreement. Now her stand is that it has been written by her counsel without her consent. The counsel who argued this matter was unable to point out or state as to what action was taken by the complainant against her counsel who had filed such statement or as to any application or amendment that had been filed in the Civil Court which is dealing with the civil suit..
13. In statement under section 342, Cr.P.C. The appellant stated that there was a valid agreement of sale and purchase but since price of property was shooting up in these days, the complainant wanted to get more for the premises and therefore, has made this false case. Appellant produced a number of documents, which he claimed were receipts of amount received by the complainant from him from time to time. He produced sale agreement, receipt dated August 1, 2005, photocopy of NIC old as well as new of the complainant, cheque in question, receipt dated 6-8-2005, receip dated 17-8-2005, receipt dated 7-9-2005, deposit slip for House Building Finance Corporation (dated 30-12-2005), receipt from association and utility bills. (all paid copies)
14. ' Learned counsel for the appellant as well as complainant has referred to the cheque, cheque number is 20773, it is dated 6-8-2005, it is for an amount of Rs,80,000. The name of the account- holder is stated as that of the present appellant. The name of the payee is stated to be Shazia Ali.
15. Face of the cheque states that it was presented in Saudi Pak Commercial Bank, which the bank on the presentation of cheque put its crossing stamp on the face of the cheque,. No question was asked in the cross-examination whether that Shazia Ali was same as the complainant. No question was asked in the cross-examination that the complainant was not maintaining an account with Saudi Pak Commercial Bank. Now all these create doubt and there is no authority needed for the position in law that benefit of every doubt must go to accused.
16. Accused also produced Anwar Khan, who was General Secretary of the Association of the residents. Anwar Khan stated in his evidence that on 17-8-2005 complainants left the flat with a carrier truck and loaded her household items thereon. In the cross-examination he admitted that in his presence no handing over or taking over proceedings took place between complainant and the accused. Another person produced as witness by accused was next door neighbour Touseer Afzal. He stated that the complainant had taken away all her household articles on 7-8-2005 and on the same day accused shifted in the flat. After one year i.e. On 1-8-.2006 complainant came there and tried to break open lock of the flat and police mobile came. Upon this complainant went out. Nothing turns on the cross-examination of this witness.
17. ' Receipts claimed to have been executed by the complainant were produced in the Court below. It was available to the complainant to challenge them through any of the recognized methods for ascertaining whether receipt bore genuine signature or not. The question before the Court below was whether the complainant was in possession and whether the complainant had been illegally dispossessed. It is for the Civil Court to decide finer points of whether the agreement of sale is valid or not. The argument of the learned counsel for the complainant that the alleged agreement is stated to have been signed on 1-8-2005 and power of attorney is dated. 20-9-2005 would be an arguments for the Civil Court which is dealing with the question of sale agreement. The agreement of sale is admitted in written statement in para, No,2 quoted above and it will be for the Civil Court which is dealing with the case to decide D whether the agreement is valid or not, whether any right accrued to the plaintiff by virtue of that agreement. These are not the questions for the criminal Court dealing with the act of dispossession. They may be collaterally involved but they are not directly involved.
18. ' In this case the' direct question is: was she dispossessed on the fateful night once and then again.
19. As far as question of being dispossessed again is concerned her sister who was stated to be present there has not stated any word about it. As far as dispossession on the first occasion is concerned two witnesses living in the premises have come forward and have stated that no such forcible dispossession took place. I, therefore, set aside the judgnient of the Court below, acquit the appellant and direct that appellant be put back in possession within thirty days of the date of this judgment.