1. IMAM BUX BALOCH, J.---Heard Mr. Imdad Ali Mashori, Advocate for appellant, Mr. Altaf Hussain Surahiyo, Advocate for respondents Nos.1 to 8 and Miss. Rubina Dhamrah, State Counsel.
2. Mr. Mashori, counsel for the appellant contended that the respondents Nos.1 to 8 have illegally occupied the agricultural lands of the appellant. Learned trial Court without assigning any plausible explanation has acquitted the respondents Nos.1 to 8. He further contended that the impugned judgment is not sustainable under the law and the learned trial Court has not considered the prosecution evidence and miscarriage of justice has been done with the appellant.
3. Learned counsel contends that the appellant has produced the documents in support of his evidence but the same has not been considered. He further contended that the impugned judgment may be set aside and the respondents Nos.1 to 8 may be convicted. Learned counsel has placed his reliance on the cases of Jalal and 11 others v. Kapri Khan and another PLD 2008 Karachi 369, Rahim Tahir v. Ahmed Jan and 2 others PLD 2007 Supreme Court 423, Nabi Bux and 6 others v.
4. Ghulam Muhammad and others PLD 2008 Karachi 518, Maqsood Ahmed Oureshi v. Muhammad Azam Ali Siddiqui and 8 others PLD 2009 Karachi 65 and Iftikhar Ahmad v. Zulifqar All and 3 others PLD 2008 Lahore 59. Lastly learned counsel for the appellant contended that the respondents Nos. 1 to 8 are in illegal possession of agricultural land of the appellant.
5. On the other hand Mr. Altaf Hussain Surahiyo, counsel for respondents and Miss Rubina Dhamrah, learned State Counsel contended that the impugned judgment is well-reasoned, During trial the appellant has failed to establish that respondents Nos.1 to 8 are in illegal possession of the agricultural lands. They contended that the appellant has admitted in his evidence that he and his sons have sold the agricultural land to the respondents through registered sale-deed. In such circumstances, learned counsel contended that for illegal possession the appellant/complainant has to prove his ownership and illegal possession of the respondents, which the appellant has been failed to establish in the trial Court. They contended that the appreciation of evidence in acquittal appeal and appeal of conviction is distinguishable. In appeal against acquittal, the respondents have gained double presumption of innocence as competent Court of law after recording its findings have given certificate of innocence to the respondents and in appeal under conviction, the Court is to appreciate the evidence with care and caution so that miscarriage of justice may not be done with the accused/convict. Mr. Altaf Hussain Surahiyo has placed his reliance on the cases of Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644, Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477, Muhammad Shaft v.
6. Muhammad Raza and another 2008 SCMR 329, Mst. Saira Bibi v. Muhammad Asif and others 2009 SCMR 946 and Muhammad Aslam v. Sabir Hussain and others 2009 SCMR 985. In the circumstances, learned counsel for respondents Nos.1 to 8 contended that the appellant has failed to establish the guilt of respondents Nos.1 to 8 during trial and that the learned trial Court has rightly acquitted the respondents Nos. 1 to 8.
7. In order to appreciate contention of learned counsel for respective parties and with their assistance, I have gone through the evidence produced by the appellant in the trial Court.
8. The appellant examined himself as P.W.1, Exh.7, he has produced mashirnama as Exh.7-C, dated 15- 11-2008, report of Mukhtiarkar, copy of C.P. No.D-39 of 2008, Syed Akbar Shah and others. Fida Hussain P.W.2 at Exh.7, Allah Rakhio P.W.3 at Exh.9. P. W.1 in his evidence deposed that the agricultural land bearing S.Nos.214, 215, 216. 217 to 224 and others measuring about 190 acres is owned by him, which he has inherited by his father situated in deh Khariro, tapo old Jamal and fresh Karampur taluka Tangwani District Kashmore. He further deposed that he has dispute over the land with his relatives and such litigation has gone up to honourable Supreme Court and the decision was delivered in his favour. He stated that in the year 1991, the possession of land was handed over to him and the respondents/accused are his Hari since 1991 and in the same year there was dispute between him and his Hari Umed Ali. The Mukhtiarkar was appointed Receiver under the orders of the Deputy Commissioner, Jacobabad. Again he has stated that on 15-11-2008, the possession was handed over to him through Mukhtiarkar, Revenue Kandhkot. He stated that in the month of December, the respondents/accused have illegally occupied his agricultural land and they in illegal possession of the land. He stated that some portion of land was sold by him and his sons to respondents/accused by sale agreement. In cross examination, he admitted that his sons namely Ali Shah, Nabi Shah, Hatim Shah and Hajan Shah have sold out S. Nos.211, 212 and 214 admeasuring 5.25 acres through registered sale-deed to the respondents/accused Abdul Wahid and his brothers Abdul Haq and Abdullah. He admitted that in respect of S.Nos. He has filed a suit against Mst. Shamul and Pir Sajid Hussain Shah before the Senior Civil Judge, Kandhkot which is pending adjudication. He has admitted the fact that Mst. Meher-un-Nissa was partner in agricultural land situated in deh Khariro. He also denied the suggestion that he has committed fraud with Mst. Mehrun Nissa and he was tried by the Court of Senior Civil Judge, Kashmore. He also admitted the fact that he was involved in anti-corruption case Crime No.2 of 1995. He admitted that S. Nos.221, 241, 255 and 903 were sold out by him to Muhammad Hassan Mirbahar and Abdul Rasool Ogai about 5/18 years back. He also admitted that he has sold out S.Nos.219, 553, 248, 902 and 546 to Abdul Hameed Bijarani, Noor Muhammad Mirbahar, Gurdino Hindu, Indar Lal and Abdul Hameed Bijarani about 5/8 years back. He has also admitted that some portion of S.No.219, 553, 24, 902 and 546 was sold out by him with Nasrullah Khan Bijarani about eight years back. He has also admitted that S.No.241 and 244 was sold by him to Kashmir Malik and Ghulam Akbar Mirbahar in the year 1991. He has admitted that he has made an agreement in respect of sale of some lands from the lands mentioned in his complaint to accused Rasool Bux Bijarani but he has stated that due to their non-payment that agreement become to an end with result that the possession of the same was not legally handed over to him. He has also admitted that some portion of S.No.214 was sold out by him to the respondents/accused. P.W.2 Fida Hussain who was driver of the appellant stated that the appellant has agricultural land, about 10/11 months long back he along with appellant and Mukhtiarkar had gone to lands of appellant where appellant got down from the vehicle where 30/40 persons were available on the hotel which were situated on the lands near the road. They asked not to come on the lands as they had occupied the same. Thereafter he along with complainant returned to Shikarpur. P.W.3 Allah Rakhio, who is working as labourer with the appellant stated that-he has seen disputed lands of appellant which are situated in deh Khariro.
9. He stated that the same land was in possession of the appellant and in the month of December, he did not know the year. He accompanied with the complainant as driver, where 40/45 persons were available they were all by caste of Ogahi. They pushed the complainant and drove him from the lands. In cross-examination he stated that prior to his evidence his statement was not recorded before this Court. He did not know the survey numbers and area of the lands of the complainant.
10. He also admitted that prior to this he did not know the accused/ respondents. He also admitted that he did not know whether the respondents are owners of the land and they have not occupied the lands forcibly and unlawfully.
11. I have gone through the evidence produced by the appellant in the trial Court. The appellant has admitted that he has sold out portion of lands to the respondents through registered sale-deed and through agreement. After, such admission of the appellant, no room is left for consideration that the respondents Nos.1 to 8 are in illegal possession of the agricultural lands as stated by the complainant. The respondents have purchased lands from the appellant; there may be some dispute after purchase of lands from the appellant but the record is silent about demarcation of lands handed over by the appellant to the respondents No.l. To 8 and others. In such circumstances, where the appellant has not proved the illegal dispossession by the respondents.
12. Section 3 of the Illegal Dispossession Act, 2005 is necessary to reproduce here below:--
3. Prevention of illegal possession of property, etc.--
(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.
13. The respondents Nos.1 to 8 have been acquitted from the charge by the trial Court and they have gained double presumption for reversal of such findings, the appellant is liable to show that die same was not reasonable or was wrong. I would like to reproduce invaluable observations recorded by the honourable Supreme Court of Pakistan in the case of Saira Bibi (supra) which in my view is relevant to the case in hand:--
(12) The learned Appellate Court considered each and every aspect of the case in its true perspective and found that statement of Saira Bibi was not confidence-inspiring. In the above noted circumstances, we cannot but agree with the findings of the learned Appellate Court. It is a settled law that before the order of acquittal is reversed, it must be shown that the judgment of the learned Court was not reasonable or wrong. If two conclusions were equally possible, the order of acquittal should not be reversed. We would like to reproduce the relevant portion of the judgment of this Court in the case of Ghulam Sikandar v. Mumtaz Khan PLD 1985 SC 11 on the same, wherein it was observed as under:-- "However notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:--
(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.
14. This approach is slightly different than that in an appeal against conviction when leave is granted only for the reappraisement 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, till found guilty the accused is innocent: and two that again after the trial a Court below confirmed the assumption of innocence.
15. The honourable Supreme Court has also given guideline while deciding the acquittal appeal in the case of Muhammad Aslam (supra), the relevant portion of judgment is reproduced below:"--
(22) It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 "that the law relating to reappraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such findings cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading/non-reading of evidence.... Law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible.
16. After considering the law laid down by the honourable Supreme Court, I am of the considered view that once an accused has earned acquittal in his favour; he enjoys double presumption of innocence and the courts while examining the case of such accused must be very careful and cautious in interfering with the acquittal order and normally should not set aside the same merely for the reason that some other view is also possible. Learned trial Court has rightly considered the case of respondents and acquitted them in accordance with law. The appellant has failed to establish his case. Therefore, this appeal merits no consideration and the same was dismissed by my short order dated 9-5-2011 and these are the reasons for the same. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.