' IJAZ AHMAD, J.---This is an appeal against the conviction ordered and the sentence passed by the learned Additional Sessions Judge, Gujar Khan vide judgment dated 28-5-2013.
2. Respondent No.1 filed a private complaint under section 3 of the Illegal Dispossession Act,' 2005 against the appellant and three others. It was alleged that the respondent/complainant was an owner of 13 marla of land in Khewet No.30, Khatoni No.98, Khasra No.411 in mauza Barki Badhal, Tehsil Gujar Khan, District Rawalpindi. It was purchased by Allah Ditta, the father of the complainant through registered sale-deed No.188 dated 13-5-1967 who constructed a house and four shops.
Allah Ditta transferred it to Mst.Mehboob Jan, the mother of the complainant. The latter transferred it in the name of the complainant through registered Sale-deed No.998 dated 28-8-2000. The house had been rented out to one Farrukh. The shops had been rented out to Punnu, Afzal and- Riaz. The complainant emigrated to U.K. She had appointed Arshad Yaqoob to take care of the property and receive the rent. One room of the house had been retained by the complainant for her personal use whenever she would return to Pakistan. On 3-12-2011, at 2300 hours, the appellant along with the co-accused in collusion with said Farrukh, the tenant of the house, illegally possessed the complainant's house. Farrukh committed theft of household articles. The accused also illegally occupied the shops.
3. In view of the preliminary statements of the complainant and the witnesses, the appellant and the co-accused were summoned to face the trial. Charge under section 3 of the ibid Act, was framed. The accused pleaded to be not guilty and claimed their trial. The complainant appeared as P.W.1 and also had the statement of Nasir Khalil P.W.2 recorded in support of the complainant.
Statements of Abdul Rehman, Inspector Excise and Taxation and of Raja Akhtar Ali, Inspector were recorded as CW-1 and CW-2 respectively. Sale-deed in favour of Khurram Shehzad, the appellant Exh.P-C and the complaint titled Mst.Badar-un-Nisa v. Mst.Shahida Parveen, and others Exh.PD were produced. The statements of the accused were recorded under section 342 Cr.P.C. It was deposed that the complaint had been filed in order to deprive the appellant of his due share. The accused did not appear as witnesses in their defence. Documentary evidence was produced as Exh.D-A to Exh.D.CC. The learned Judge through the impugned judgment acquitted all the accused except the appellant. The appellant was convicted under section 3 of the ibid Act and was sentenced to simple imprisonment for 7 years. He was also ordered to pay Rs.3,00,000 under section 544 Cr.P.0 to the complainant as compensation and a fine of Rs.1,00,000 and in default to further undergo 6 months' S.I.
4. It is contended. By the learned counsel for the appellant that the respondent/complainant in para 2 of her complaint and in her preliminary statement referred the disputed property falling in Khasra No.411. The same was claimed to have been transferred to her with possession thereof.
While appearing as P.W.1, the complainant has altogether taken a new stance. She claims the ownership of Allah Ditta her father from Khasra Nos.407 and 411 but handing over of the possession from Khasra No.407. The same ownership and possession are said to have devolved on the complainant. In view of this controversy, the conviction ordered is not sustainable. Nasir Khalil who appeared as P.W.2, when subjected to cross-examination, deposed that Khalid his brother-in-law informed him about the illegal dispossession. This hearsay evidence renders no support to the complainant's case; that the statement made by CW-1, the Inspector Excise and Taxation 'is not a proof of the ownership or of the possession over the disputed premises by the complainant; that Raja Akhtar Ali, the Inspector had not himself inspected the property, his statement does not support the prosecution case; that according to the revenue record, the appellant is an owner of the property in view of the mutations, sanctioned in favour of Badar-un-Nisa, the mother of the complainant and Fakhar-unNisa, the aunt of the appellant; that according to Shajra Qistwaar, Exh.D-F, Khasra Nos.407 and 411 are not contiguous. The shops and the house fall in Khasra No.407.
It does not fall in the share of the complainant; that the best evidence that could be the statements of Arshad Yaqoob, the Manger and the rent receiver of the complainant's estate and the tenants, has not been produced in evidence and has been withheld. The receipts of the rent collected by Arshad Yaqoob on behalf of the complainant have not been produced. The presumption will go against the complainant; that complainant residing in U.K, thousands of k.Ms away from the property in question, cannot be termed to be possessing the property in question; that a civil suit regarding the same property is yet pending adjudication before the Civil Court. In these circumstances, the conviction ordered and the sentence passed,, is liable to be set aside.
5. On the other hand, it is contended by the learned ADPP that the complainant, by her own statement, the statements of P.W.2, CW-1 and CW-2 has proved her dispossession and appellant's illegal possession. The statement made by CW-1, the Excise and Taxation Inspector cannot be brushed aside. The tax for the property in question is paid by the complainant.
6. Heard. Record perused.
7. As far the argument of the learned counsel for the appellant that the complainant residing thousands of k.Ms away in U.K, cannot be said to be possessing the property, no question of dispossession arises, is not acceptable. The possession is not an act of clinching or having tenacity over the property. The possession is a relative term. The state of being in possession differs from case to case. A missing watch lying just a few feet away from its owner may not be in the owner's possession. A camel grazing a dozen of k.Ms away from a ranch that returns at the end of each day is yet I possessed by the rancher. The proxy presence of U.S, U.K, Norway and France through a few shepherds, rearing a few heavily subsidized herds of sheep in the tiny islands just above the Antarctic circle, is understood to be the possession of these States sufficient enough to justify their designs for future expansion further south along the meridian lines in future. In the instant case, the complainant, if was receiving the rent through a Manager or even had the property under her lock and key would be considered to be possessing the property in question.
8. In her complaint, the respondent claims that her predecessor was transferred the property from Khasra No.411 who constructed a house and 4 shops thereupon and the same devolved on her who continued to possess the same. The same was her stance in her preliminary statement got recorded. She cannot claim ownership and possession over Khasra No.407 through her statement recorded as P.W.1 after framing of the charge. The hearsay evidence of Nasir Khalil P.W.2 has no value in law. Arshad Yaqoob, the Manager and the rent receiver of the complainant and three tenants of the shops have not been produced in the witness box. The best evidence has been withheld. An adverse presumption may be drawn against the complainant, if produced, the said persons would have not supported the complainant's version. According to the Register Haqdaran Zamin for the year 1967-68 Exh.DB & DE, the land in question is owned and possessed by Badar-un- Nisa, the mother and Khair-un-Nisa, the aunt of the appellant. Mutation No.938 Exh.DC stands sanctioned in favour of the said two ladies on 29-4-1978. Mutation No. 349 dated 28-1-1963 also stands sanctioned in favour of Badar-un-Nisa and two aunts of the appellant. According to Shajra Qistwaar Exh.DF, Khasra Nos.407 and 411 are not contiguous and are distinct from each other.
Copies of Khasra Gardavri for the crops of Kharif 2010 to Rabie 2012 Exh.DG, DE & DH show the possession of Khair-un-Nisa, etc. Over Khasra No.407. In view of the above said documents, it cannot be said that the appellant has illegally dispossessed the respondent/complainant and has illegally possessed the land either exclusively owned or possessed by the complainant. The complainant has not established her case of illegal dispossession against the appellant beyond any shadow of doubt. In these circumstances, the conviction ordered and the sentence passed through the impugned judgment dated 28-5-2013, rendered by the learned Additional Sessions Judge, Gujar Khan is declared contrary to law and is set aside. This appeal is accepted and the appellant is acquitted of the charge. The findings of this Court in this appeal will however be constricted and be relevant to the accusation made in the complaint and will not effect the claims over the disputed land set up by both the parties in the civil litigation.