FAHIM AHMED SIDDIQUI, J. This appeal has been directed against the judgment dated 07.09.2020 passed by learned Additional Sessions Judge Mirwah in Criminal Complaint No. 337 of 2018 (Riaz Ahmed Samore v. Muhammad Umar and others). Through the impugned judgment, the appellant Muhammad Hashim son of Ghulam Hyder by caste Islami has been convicted and sentenced to five years rigorous imprisonment and to pay a fine amount of Rs.25000/- for an offence under section 9 of Illegal Dispossession Act, 2005 (hereinafter referred to as 'IDP Act'). In case of failure to pay the fine amount, the appellant was directed to suffer six Months more simple imprisonment.
The appellant was also directed to pay compensation of Rs. 1,00,000/-(Rupees one lac only) which has to be recovered by the complainant while as per the above-referred judgment, the complainant could not prove the case against the remaining respondents/accused who were acquitted by the trial Court.
2. The facts leading rise to the present appeal, in brief, are that complainant and his co-sharers are owners of agricultural land bearing Survey No.1568 (2-31) acres situated in deh Hindyari, Taluka Mirwah District Khairpur. From the said area, the complainant party has sold out 1-20 acres, as such there remains 1-11 acres area from said survey number. It was stated in the complaint that on 15.10.2016 at 0300 hours, the accused persons (nominated in the Criminal complaint) on the point of weapons occupied left over area of 1-11 acres from S. No. 1568 and issued murderous threats. It was further stated in the complaint that accused Karim Bux Islami and Muhammad Islam Islami put DHINGERS (thorny bushes) and built a katcha house on the said land of the complainant within sight of witnesses Akber Maitlo, Waryam Samore, and Zahoor Ahmed Samore. Complainant has further alleged that a civil suit was filed by the accused side before Civil Judge-I, Mirwah which was dismissed but even then the accused persons have illegally occupied an area of 1-11 acres from survey No.1568 of deh Hindiyari, Taluka Mirwah District Khairpur and thereby the accused persons have committed offence under section 3 of IDP Act.
3. Haji Shamsuddin Rajper learned counsel for the appellant vehemently, contends that the appellant is innocent and has falsely been involved by the complainant. He submits that during cross-examination of the complainant he admitted that whole survey No. 1568 does not belong to him. According to him, the complainant has admitted that he had withdrawn from the previous complaint due to the reason that name of Dad was wrongly mentioned instead of Dad Ali. He continues, by saying that complainant Riaz Ali has admitted in his cross-examination that Muhammad Hashim had filed a civil suit but he had not filed any written statement in civil court. He submits that the complainant has himself admitted in his cross-examination that he had not mentioned in the complaint that his trees were available in the land and were cut down by the accused, while witness Waryam has disclosed in his cross-examination that he does not know that which accused was holding which type of weapon and he admitted that no one was injured in the incident including the complainant. According to him, SHO Syed Ghulam Asghar Shah has recorded statement of PW Waryam in which he stated that he came to know that accused Muhammad Hashim had purchased 1-11 acres out of S. No. 1568 from complainant Riaz through agreement to sell. Mr. Rajper further submits that during the inquiry, SHO found that there were houses of accused persons over disputed land for a long-time and they are residing there.
According to Mr. Rajper, the SHO was not cross-examined by the complainant's, counsel though the chance was given to him while Mukhtiarkar (Rev) Mirwah was examined who submitted documents of the land and further stated that as per report/information collected by him through Tapedar of the beat, Muhammad Ismaeel had cut off trees but the same was not belonging to Riaz Ahmed and said Muhammad Ismaeel was illegally trying to occupy the land of Riaz Samore. He further submits that the alleged incident is shown to have taken place in the year 2016 and the complainant has filed a criminal complaint in the year 2018 with a delay of two years. He also states that witnesses of an agreement to sell and coharers were not called and examined. Tapedar was not examined even report of Tapsadar was not produced and such report is silent for appellant Muhammad Hashim. Mukhtiarkar has not said that Riaz is a co-sharer in the property.
4. Mr. Safdar Ali Jogi, Advocate for the complainant has refuted the contentions advanced by learned counsel for the appellant and contended that the complainant is the owner of the property in question and lawful owner of S. No. 1568 from which the appellant has dispossessed him by using force. He submits that the accused namely Karim Bux and Islam Islami encircled an area with thorny bushes and built their katcha house therein. According to him, it is sufficient to establish that the accused persons have not only forcefully dispossessed the respondent/complainant but also built their house. He submits that the accused persons have filed a civil suit but the same was dismissed. However, he admits that the appeal was allowed but he submits that it will make no difference as criminal and civil proceedings can take place simultaneously.
5. I have considered the arguments advanced by learned counsel for the parties and have gone through the material available before me.
6. It is manifest from the provisions of IDP Act that the remedy is available to a person who has been dispossessed from an immovable property without following the due process of law. For the purpose of operation of this statute, the complainant must establish that he was actually under the possession of the property in question and the possession was taken over by the nominated accused persons without due course of law. It is the case of the respondent/complainant that he and his co-sharers are the owners of the agricultural land bearing Survey No. 1568/2-31 situated in deh Hindyari, Taluka Mirwah, District Khairpur. From the aforementioned agricultural land, they have sold out 1-20 acres as such there remains 1-11 acres.
7. Allegedly, the nominated accused persons on 15-10-2016 at about 03:00 hours while armed with deadly weapons illegally occupied the above-mentioned remaining area of 1-11 acres from Survey No. 1568 and issued threats of murder while accused Karim Bux Islami and Muhammad Islam Islami built their house/hut within the land. It is worth noting that the complaint filed by the respondent/complainant indicates that earlier a complaint was filed under IDP Act but the same was withdrawn as the name of one of the accused was incorrectly mentioned as such after correction, the fresh complaint was filed. However, the respondent/complainant did not bother to file the memo of the previous complaint nor the order of the previous complaint. Even it was not disclosed whether, at the time of withdrawing the previous complaint, the trial Court has taken cognizance or not, and permission was sought for filing a fresh complaint after the withdrawal of the earlier one. Although a person so dispossessed doesn't need to claim title over the property; however, he has to establish that he had possession of the property but this point was not properly addressed during trial.
8. As per statutory provision mentioned above, it is advisable that a trial Court before taking cognizance and occasion to a full-fledged trial, may issue directions for an investigation. The purpose of an investigation is to get the detailed and proper information to ascertain that whether the complainant was physically or constructively in possession of the property in question and at any point of time, he was illegally dispossessed from the property in question by the nominated accused persons. No specific procedure of investigation has been laid down in IDP Act except that in subsection (1) of section 5, it is mentioned that upon a complaint, the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court. Hence, it is clear that it is the prerogative of the Court either to direct for such investigation or not. Nevertheless, it is mentioned in section 9 of the IDP Act that the provision of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the Code') is applicable, as such if any investigation is ordered the same should be done up to some extent as per procedure laid down in Chapter XIV of the Code. Hence, it is clear that whenever an investigation is ordered, the officer-in-charge for the police station has to form his opinion regarding the alleged offence based on material collected by him during such investigation.
Hence, while investigating, he should collect all the material evidence indicating the delinquency or innocence of the accused against whom, the complainant has levelled the allegation of illegal dispossession. During such investigation, he has to record the statements of persons who are acquainted with the alleged offence. In case of a positive report regarding the offence, his opinion must contain the details of the time and mode of dispossession but before that, he has to clarify that either the complainant was actually or constructively in possession of the property in question.
9. There is no cavil about it that if sufficient material is available on the record which warrants cognizance, the trial Court may take cognizance without referring the matter for investigation but for the same a speaking order should be passed. Similarly, 'if the trial Court has referred the matter for investigation and the investigation report belies the contents of the complaint regarding dispossession, the trial Court has to give weight to the same. No doubt, the ipse dexit of the police is not binding on the Court but whenever a negative report is placed the same cannot be brushed aside without recording reasons. In the present case, the SHO has furnished a report belying the contention of the complainant regarding his dispossession by using force and opined that the appellant and respondent (complainant) entered into an agreement of sale regarding the same property. The investigation report is coupled with statements of witnesses belonging to the same locality and also placed on record such agreement of sale. Nevertheless, the learned trial Court has ignored all these factual facets of the case and taken cognizance against the appellant and others. Consequently, the charge was framed against the accused and after the trial, the learned trial Court concluded that the charge was proved against the appellant only and he was convicted as described in the intro of this judgment.
10. One of the prosecution witnesses is a relative of complainant and the other is his employee, and may be advisedly he has not produced any other 'independent witness of the locality during trial.
As per the memo of complaint, the land of complainant is situated in a rural area where the land of the applicant is surrounded by S. No. 1567 in the North, land of Muhammad Din Shar in the South, village Islami in the West and land of Altaf Rajper in the East. None of the persons from the adjoining village were asked to appear in the trial Court as a witness of the alleged incident. It is claimed by the applicant that he has sold out a portion of his said land to one Muhammad Din Shar but the said Muhammad Din Shar was also not produced as a witness of the alleged incident of illegal dispossession. In cross-examination, the complainant has admitted that the nominated accused namely Haji Najam Ali and Muhammad Ismail are physically disabled persons. He also claimed in the body of his complaint that the accused persons were armed with deadly weapons but such deadly weapons have not been disclosed or described in the body of the memo of complaint. Even at the time of recording his deposition, the complainant remained tight-lips regarding the nature of those deadly weapons. The complainant mentioned in his complaint that the accused Karim Bux Islami and Muhammad Islam Islami have built their house in the land after putting a hedge of thorny bushes. In contrast, when the complainant enters into the witness-box, he says that Ismail Islami is the accused who has built his house on his land. It is also worth noting that the complainant in his examination-in-chief states that the accused persons have cut down acacia trees available in the land but the memo of complaint is silent regarding any such allegation.
11. The prosecution witness Muhammad Waryam in his deposition claims that his land is adjacent to the land of the complainant but he has not produced any proof of his ownership, which creates doubt regarding such claim specially when it has come on the record that he is not residing in a nearby village but his village is situated about 15 kilometers away. What is more! The complainant in the memo of complaint-while describing his land has not shown that the said witness's land is adjacent to his land. The complainant in the memo of complaint discloses that his land touches the land of Muhammad Din Shar on the northern side while it has connexions with the lands of Altaf Rajper on the eastern side. Although, the complainant has mentioned in his complaint that Survey No. 1567 is situated in the North of his land but he did not disclose that the said survey number belongs to his cousin Muhammad Waryam. It is worth noting that this witness has admitted in cross-examination that he is a cousin of the complainant and he admits that in the alleged incident of dispossession none from the complainant side including himself received injuries while at the time of the incident the accused persons were armed with batons and hatchets. The next prosecution witness is Muhammad Akber, who is an employee of complainant Riaz Ahmed, as such his deposition cannot be termed as an independent witness. It was the aforementioned contradictions and convincing material, which has persuaded the trial Court to disbelief the complainant's case regarding dispossession up to the extent of the other accused. However, the trial Court conceived that only the appellant is responsible for the alleged offence. The reason for this persuasion is the statement of the appellant under section 342, Cr.P.C. in which he claims that he has purchased the land from the complainant and having possession of the same on account of the alleged Sale Agreement in which allegedly the complainant entered with him. It is settled law that the prosecution has to establish its case and no adverse finding can be drawn in favour of the prosecution solely on the basis of the statement of accused: The learned trial Court has unreasonably relied upon the possession of the appellant over the subject land which is continued till the date of judgment. The learned trial Court has not considered the pendency of the civil litigation regarding the same property and came to conclusion of the proof of charge against the appellant merely because he is still in possession of the land. The crux of the illegal dispassion proceeding is not the possession of the accused person but the fact that how he has come into the possession of the property. If possession is not established to be taken by the accused persons by using force or deceiving the complainant then a case of illegal dispossession is surely not made out. In the existing position of affairs, I am of the view that the case of illegal dispossession by the accused persons including the appellant is not established beyond a reasonable doubt through some credible evidence. In such a situation, there will be no option left for extending the benefit of doubt in favour of the appellant and acquit him from the charge. As such the appellant was acquitted through a short order dated 21-01-2021 and these are the reason for the same.