' SALAHUDDIN PANHWAR, J.- Through this common order, I intend to dispose of applications under section 426 Cr.P.C. Filed in above captioned appeals, as same pertains to the same judgment.
2. Precisely, the relevant facts are that Ali Zulfiqar, Mukhtiarkar Qasimabad lodged F.I.R. On 26-10- 2013; contending therein that Tapedar Muhammad Bachal of Deh Qasimdabad reported that Survey No 107 is the property of Revenue Employees Society, whereas Survey No 200 is property of HDA. In between both survey numbers, there is a government plot admeasuring 30.32 ghuntas, which is in the occupation of appellants/ accused Mehboob Abro, Sikandar Ali, Peerano Khan Abro, Rab Nawaz Abro and others and they have occupied the said plot since last three years. On such complaint, notices through Tapedar were served upon the encroachers but they refused to receive the same, thus same were affixed on the walls of their houses. Such report was submitted to Mukhtiarkar A.C. Qasimabad as well as to D.C. Hyderabad. Thereafter, after seeking necessary permission such F.I.R. Was lodged.
3. It is further revealed that after usual investigation, challan was submitted against above named accused persons, thereby charge was framed against them, material witnesses were examined and statements under section 342 Cr.P.C. Were recorded and in consequence of conclusion of the trial the appellants were convicted for 10 years.
4. Learned counsel for appellants, inter alia contends that F.I.R. is delayed about three years and is not competently lodged; it is a matter of record that there is no ocular evidence that who and when occupied such property; mandatory provisions of Sindh Public Property (Removal of Encroachment) Act, 2010, were not complied with; trial was conducted in hurried manner; accused were not allowed to cross-examine the witnesses through their counsel; witnesses were examined on 10-12-2013. Thereafter application under section 540, Cr.P.C. was moved, same was allowed. Again witnesses were examined on 13-12-2013 but similarly opportunity of cross-examination was not provided to the accused persons, such material illegality committed by the trial Court is sufficient to suspend the sentence of appellants; application for adjournment was moved before the trial Court but the same was declined and statement under section 342, Cr.P.C.. was recorded.
5. Conversely, learned A.P.G., while refuting the contentions raised by learned counsel of respective appellants has argued that no material illegality has been pointed out by the appellants; sufficient evidence is available against the appellants and deeper appreciation is not permissible at this stage, thus instant application is devoid of merits.
6. Heard the learned counsel and perused the record.
7. Before dilating 'upon the contentions raised by the learned counsel for respective parties; suffice to say that scope for suspension of sentence under section 426 Cr.P.C., is narrow, not wider than the parameters of section 497 Cr.P.C. Further, it is settled principle of law that deeper appreciation of evidence while deciding bail application or application for suspension of sentence is not permissible under the law rather the law and apex court have restricted the powers by insisting that while deciding such application (s) only tentative assessment is permissible. In matter (s) of section 497, Cr.P.C. The question of further inquiry while in matter (s) of section 426, Cr.P.C. The patent illegality in judgment is to be seen.
8. The learned counsel has raised plea that manner of trial, so adopted by the learned lower court, was not proper as trial court has acted in haste. Before responding to this, I would like to refer the operative part of the judgment of honourable Supreme Court in SUO MOTU CASE NO.16 OF 2011 ALONG WITH CMAs (PLD 2013 SC 443), which is as under:-- "It has been informed that Anti Encroachment Force has also been created, which is headed by SP Dian Bahadur. We have enquired from him to explain to us the manner in which he is discharging his functions for removal of the encroachments, unauthorized structures, etc. He under instructions from Mr. Nazar Muhammad Laghari stated that Government of Sindh Revenue Department under section 9 of the Sindh Public Property (Removal of Encroachment) Act, 2010 conferred powers upon the authorized officers and under section 3(3) of the Act all the Assistant Commissioners and Mukhtiarkars or Collectors on behalf of Government of Sindh are empowered to remove such encroachments together with the structure, if any raised by anyone on the public property within a period not less than two days as may be specified by order in writing and if such person refuses to remove encroachment or the structure raised thereon, after the expiry of the notice period, the authorized officer shall require the in charge of a police station for police assistance within the local limits of which the property is situated. On such requisition the required assistance shall be provided under section 5(2) of the Act, 2010 and the matter shall be sent to the Tribunal or the Special Court for action against the land-grabber according to law. He further stated that under the provisions of Act, 2010 the Provincial Government has so far retrieved 10,690 acres of land and 9 kilometer railway track and at present 62 cases are pending before Special Court constituted under the Act of 2010. The SP Encroachment Cell is directed to submit his report within 7 days as to whether the' encroachments by the land-grabbers have been cleared within his jurisdiction", (Underlining is supplied for emphasis)
9. It is worth to add here that objective, importance and vitality of the Act shall stand further clear from another portion of same judgment which is reproduced hereunder:- "Mr. Shahadat Awan, learned Prosecutor General Sindh stated that from the date of promulgation of the Act, 2010, 145 F.I.Rs, were registered and put up before the Special Court, out of which 62 are pending decision whereas the remaining have been disposed of as 'A' Class or 'C' Class. We could not understand as to how such like cases can be disposed of in A or C class. The SP Encroachment Cell shall submit details of each case, which was disposed of either as 'A' or, as 'C' class during investigation. He shall also submit report about the cases, which were quashed. The learned Prosecutor General may also submit the details of such cases with his comments separately as to whether any further action in this behalf has been taken or not and if the cases have failed in Court for want of sufficient evidence, he would fix responsibility on the investigation team or other concerned. He would further point out whether the properties in possession of encroachers/land-grabbers have been retrieved or are still in their unlawful possession along with its complete details.'
(Underlining is supplied for emphasis)
' The above part not only shows the scope of the Act but also leaves nothing ambiguous that F.I.R.
(s) could well be lodged by quarter concern which shall be tried by the Tribunal or Special Court.
Nothing remains ambiguous that an F.I.R. Shall follow the procedure, so provided for an F.I.R./criminal charge.
10. Reverting to the objection, so raised by learned counsel for the appellants, I have examined the available record which shows that the appellants were alleged to have encroached upon the government property; they were served with notice(s) under section 3 of Sindh Public Property (Removal of Encroachment), Act, 2010 but on failure of appellants to remove encroachment or responding the notice (s), sanction was obtained from higher authorities and then they were sent up to face the charge/allegation. Thus prima facie, it appears that provided procedure was followed by quarter concern.
11. Besides, it is germane to mention here that the provision of section 426, Cr.P.C. Does not permit to consider the manner of trial but requires the appellate court to consider the material, available on record in shape of evidence. It is a matter of record that the appellants have never challenged the jurisdiction or authority of lower court in conducting the trial of the case. The trial court examined the witnesses, who were not cross-examined by appellants and even, the trial court allowed the application under section 540, Cr.P.C. Yet the appellants did not challenge the statements of the witnesses. Moreover, learned counsel for appellants have failed to point out any material illegality in the impugned judgment, therefore, without hesitation, I am of the considered view that instant applications are devoid of merits, hence same are dismissed accordingly. However, office is directed to prepare paper book within 15 days, thereafter fix it for regular hearing, according to roster.
12. Needless to mention here that the observations made hereinabove are tentative in nature and will not prejudice the case of either party on merits.