' SALMAN HAMID, J.---In a nutshell the facts deducible from the record of the present Criminal Acquittal Appeal (Appeal) are that Muhammad Anwar son of Muhammad Shafi, (Appellant) addressed a letter dated 11-8-2003 to SHO, Police Station T.P.X. With allegations therein that the respondents have trespassed into his house raised on Plot No,125, Muhammadi Colony, near Jamia Norani Masjid (House) and occupied the same. After enquiry F.I.R. No,207 of 2003 under sections 448 and 34, P.P.C. Emanated whereafter Criminal Case No,150 of 2004 (Criminal Case) proceeded before the VIIth Civil Judge and Judicial Magistrate Karachi West (VII-Judicial Magistrate) in which Criminal Case, after trial the respondents were acquitted from the charges leveled against them.
The reasons for such acquittal, as available in the Impugned Judgment dated 19-5-2011 was that the appellant failed to establish case against respondents beyond reasonable doubt.
2. Facts of the case would reveal that Agreement dated 1-11-2000 by which an amount of Rs,1,20,000 was lent by appellant to. Respondent No,1 was executed in consideration whereof the House was stated to be mortgaged and/or possession thereof was handed over to the appellant and that the House was to be returned back to the respondent upon repayment of the borrowed amount in one year. The respondent No,1 having failed to make payment of amount of Rs,1,20,000 the House remained in possession of the appellant, which possession, according to the appellant, Was disturbed and/or forcibly taken over by the respondents on 13-11-2000 when the wife of the appellant was thrown out from the House. The record of the file would also show that P.W.
Muhammad Arshad deposed that the Agreement respecting payment of Rs,1,20,000 was executed in his presence and he also deposed that the incident of the trespassing took place on 5-8-2005 at about 2 a.m. Whereas P.W. Muhammad Sadiq deposed that he was the tenant of the appellant and he came to know that the respondent No,3 occupied the House. P.W. Zafar Iqbal deposed that he remained tenant of he appellant for some time and that he 'came to know that some persons had trespassed into the House. The respondent claimed that since the appellant was police official illegally occupied their House and that such illegal occupation was also reported to the high-ups of the police official and upon enquiry possession of the House was handed over to respondent No,3.
3. In this backdrop of the matter the entire file was traced and it emerged that evidence of P.Ws.
Was based on hearsay and none of them were the eye-witnesses of alleged trespass. Even the appellant deposed that at the time of alleged trespassing he was not in the House but his wife was there who was thrown out from the House. Consciously enough, the wife of the appellant who was alleged thrown out from the House as not examined or even cited as a witness or that even the complaint or the F.I.R. Does not show such a fact. Similarly, the other witnesses from the prosecution side deposed that they came to know that the House was occupied and that the examination of the evidence of the witnesses would also reveal that the incident of 5-8-2005 at 2 a.m. Was stated by such witnesses to be incident of 6-6-2003 at 3 p.m. And therefore there was blatant inconsistency. Moreover though it was mentioned by the prosecution witnesses that they were the tenants in the House nothing to substantiate such was produced in shape of rent agreement or rent receipt etc.
4. Besides above position, it would be also interesting to note that it was alleged that the respondent mortgaged the House with the appellant upon loan of Rs,1,20,000 by itself show that at best the House was mortgaged and the possession thereof remained with the respondents. It was also claimed that Agreement was executed in favour of the appellant and that the appellant and respondent No,1 put their signature on it. However, scrutiny of the Agreement would show that it was in favour of one Muzamil Anwar, the son of the appellant at which time he was minor and that he could have not executed such Agreement and that the Agreement nowhere shows that the appellant executed the F same on behalf of Muzamil Anwar being his guardian. Even otherwise such documents being not registered could have not been tendered in evidence and that no evidentiary value attached to it.
5. Above factors being apart, it also came on record that a Civil Suit No,554 of 2003 before VII-JM, Karachi West was filed by the appellant against the respondents in respect of the House and was subsequently withdrawn on 4-11-2003 when the appellant upon order of the court appeared in person which filing of the Suit by itself shows that there was a civil dispute in respect of the House.
6. For all the above reasons, the respondents were not found to be in possession of the House illegally and/or by way of trespass, the criminal case was dismissed and/or the respondents were acquitted by. VII JM by giving them benefit of doubt. Resultantly appeal being meritless is dismissed in limine.