' SYED IFTIKHAR HUSSAIN SHAH, J.---This single judgment will dispose of above captioned two writ petitions, one filed by Muhammad Hayat. Khan petitioner against judgment dated 6-4-2013 passed by the learned Additional Sessions Judge, Rawalpindi whereby he was convicted and sentenced to imprisonment for three years along with the fine of Rs.50,000 and also sentenced to pay compensation of Rs.50,000 to the complainant and was directed to vacate the disputed property within a period of 10-days and the other writ petition filed by Muhammad Irfan Siddiqi for enhancement of the aforesaid sentence of Muhammad Hayat Khan respondent No.2.
2. Succinctly, the facts of the case are that respondent No.2 made a complaint under sections 3 and 4 of the Illegal Dispossession Act, 2005 against the present petitioner alleging therein that Muhammad Shoaib, brother in law of the complainant purchased the land measuring 2-1/2 Marlas bearing Khewat No.302/1, Khatooni No.318/1, Khasra No.892/8 vide Mutation No.2123 and he constructed a double storey building thereon. He along with his wife/ sister of the complainant namely Mst. Rabia Akhtar lived in the said house and both of them died issueless. The property in question was locked by the complainant for its safe custody and the present petitioner/ convict Muhammad Hayat Khan had illegally occupied the same on 20-3-2012 by breaking the locks of the house.
3. Learned trial Court, after recording the cursory evidence of the complainant and summoning report from the S.H.O. Concerned, summoned the present petitioner vide order dated 16-7-2012 to face the trial. Learned trial Court framed charge under sections 3 and 4 of the Illegal Dispossession Act, 2005 on 19-9-2012 to which the petitioner did not plead guilty and claimed trial, . Therefore , the prosecution was directed to produce evidence and accordingly the statements of Muhammad, Irfan Siddiqui P.W.1 and Muhammad Younas P.W .2 were recorded. The petitioner/convict was examined under section 342, Cr.P.C. And he also appeared as DW-1 as witness to discard the allegation of the complainant and also examined Muhammad Asghar DW-2. Learned trial Court, after hearing the parties, convicted the petitioner/convict. Supra. Hence, these writ petitions.
4. Learned counsel for the petitioner/ convict has contended that the petitioner is the owner of the disputed property on the basis of sale-deed No.758 dated 7-2-2012 registered in his favour by its original_ owner, who handed over possession to him; that the petitioner is in lawful possession of the disputed property. Respondent No.2/ complainant has failed to produce any proof Of his ownership regarding the disputed property. Furthermore, there is no evidence on record that the petitioner had credentials or antecedents of Qabza group. Therefore, proceedings under section 3 of the Illegal Dispossession Act against the present petitioner are incompetent. Relies on cases titled "Habibullah and others v. Abdul Manan and others (2012 SCM R. 1533 [Supreme Court of Pakistan)", and "Zahoor Ahmad and 5 others v. The State and 3 others (PLD 2007 Lahore 231).
5. On the other hand, learned counsel for respondent No.2/complainant has contended that the house in question was owned and possessed by Muhammad Shoaib, his brother-in-law 0 and after his death it was occupied by Mst. Rabia Akhtar, widow of Muhammad Shoaib and sister of the complainant and after her death, respondent No.2/complainant locked the disputed house for safe custody being legal heirs of the aforesaid lady; that the present petitioner illegally occupied the same after breaking the locks on 20-3-2012; that the petitioner is a transgressor and belongs to Qabza group, therefore, the learned trial Court has rightly convicted him. Relies on "Muhammad Bakhsh v. Additional Sessions Judge and others" (2010 PCr.LJ 268 [Lahore)".
6 . I have heard learned counsel for the parties and have perused the record.
7. The case of the prosecution is that Muhammad Hayat Khan petitioner illegally occupied the house, which belonged to Muhammad Shoaib and Mst. Rabia Akhtar, brother-in-law and sister of the complainant Irfan Ahmad Siddiqi. Muhammad Shoaib died in the year 2002 and Mst. Rabia Akhtar died in the year 2005. Thereafter the house in question allegedly remained locked.
Respondent No.2/complainant along with the other legal heirs instituted a suit for seeking declaration to the effect that the complainant along with other are the legal heir of Muhammad Shoaib, who died on 8-4-2002 and widow of Muhammad Shoaib," Mst. Rabia Akhtar, who died on 4-9-2005. The said suit was decreed on 5-5-2012.
8. On the other hand, the petitioner has alleged that purchased the house in question on 7-2-2012 and obtained the possession. No house number has been mentioned in the sale deed No.758.
However the description of the property has been given and it pertains to 3-1/2 marlas of land.
According to the complainant of this case, his predecessors namely Muhammad Shoaib and Mst.
Rabia Akhtar owned land measuring 2-1/2 marlas situated in Khasra No.892/8 vide mutation No.2123 and the said land is 2-1/2 marlas. However, the complainant has failed to place on record any document of ownership of his predecessors. Both the parties have claimed that they are owners of the disputed property and the contention of the petitioner/convict is that he got possession of the property as owner. He has also placed on record the copy of registered sale deed in his favour as Exh.DA whereas the complainant/respondent No.2 has failed to produce any such document of title on record. The learned trial Court, after going through the record, has held that respondent No.2 by using his good office being. a police man and in connivance with the revenue department got prepared and executed a false and fake sale deed, has illegally occupied the disputed house.
9. The complainant was admittedly not present at the place of occurrence at the time of occurrence and he himself has not seen the petitioner while breaking the locks of the house and occupying the same. It was allegedly seen by Muhammad Younas P.W.2, who had allegedly informed the complainant about the incident of taking over illegal possession of the disputed house by the present petitioner. The complainant has not mentioned in his complaint that how he came to know that the petitioner had illegally occupied the house after breaking the locks. He has not mentioned the same in rapt Mark-B, which was admittedly lodged by him that he was informed about the breaking of lock by Muhammad Younas P.W. He mentioned therein that on 20- 3-2012, he came to look after the house and found that its locks had been broken and one Muhammad Sultan was found in possession thereof. On query Sultan informed that his friend Zafri has sent him in this house with Muhammad Hayat Khan and Muhammad Hayat Khan had told him that he had purchased the house from Abdul Manan. In petitions made by the complainant under sections 22-1 and 22-B, Cr.P.C., he has not mentioned the name of any person who had witnessed the occurrence. Admittedly, Muhammad Yqunas P.W.2 is the resident of Malakwal whereas the complainant and Muhammad Shoaib brother-in-law of the complainant was also resident of Malakwal, therefore, his deposition without any independent corroboration, cannot be safely relied.
10. It is contended by the learned counsel for respondent No.2/complainant that the petitioner belongs to Qabza group, therefore, the learned trial Court has rightly convicted him while relying on "Muhammad Bakhsh v. Additional Sessions Judge and others" (2010 PCr.LJ 268 [Lahore)".
11. The perusal of record reveals that the complainant had failed to produce any evidence regarding the petitioner being belonging to Qabza group or the property grabbers. The complainant while appearing as P. W.1 has admitted that he does not know whether respondent No.1 had any previous record of grabbing lands illegally,
12. The complainant' had not produced evidence, oral or documentary to establish that the petitioner had credential or antecedents of being a land grabber. In fact the dispute between the parties is regarding the ownership of the property. The complainant has claimed ownership on the basis of mutation in favour of Shoaib, the copy of which has not been placed on record. The petitioner/convict has claimed himself to be owner of the, disputed property on the basis of sale deed. It appears that the dispute between the parties is regarding the demarcation of the house in question, which was not in possession of the complainant at the relevant time when allegedly the possession was taken over by the present petitioner by breaking the locks. No trustworthy evidence regarding the illegal possession of the petitioner has been produced on record and surely there is no credentials of the petitioner being member of Qabza group or land grabber.
13. The dispute between two individuals is of the title. The facts and the circumstances of this case were not sufficient to hold that the case falls under section 3 of the Illegal Dispossession Act, 2005 and the learned trial Court illegally connected the petitioner with the offence falling under sections 3 and 4 of the Illegal Dispossession Act, 2005 which has been made for, special purposes and for special objects and has wrongly sentenced the petitioner. The ease-law produced by the learned counsel .For the complainant is directly applicable to the facts and circumstances of the present case. The case-law cited as "Habibullah and others' v. Abdul Manan and others" (2012 SCM R 1533 [Supreme Court of Pakistan)" is applicable to the facts and circumstances of this case.
14. In view of above, Writ Petition No.963 of 2013 is allowed, impugned judgment dated 6-4-2013 is set aside and the petitioner is acquitted of the charge. The petitioner is present on bail, his bail bonds as well as surety is discharged from the liability. However, the parties are at liberty to get their dispute adjudicated from the competent Court of law and if the complainant files any civil suit claiming his ownership and possession over the disputed property, the Civil Court will decide the same within the shortest possible time preferably within three months from its institution.
15. Since the petitioner has been acquitted of the charge in view of above discussion, therefore, Writ Petition No.1050 of 2013 for enhancement of sentence of Muhammad Hayat Khan has become infructuous, the same stands dismissed.