1. ' By this Revision Application which has been filed under section 435/439, Cr.P.C., applicant Muhammad Adam has called in question the judgment of. Civil Judge and F.C.M., Kandiaro, dated 29th September, 1981, whereby all the eleven private respondents who figured as accused persons in criminal case pending in the said Court were acquitted.
2. ' Briefly stated the facts of the case are that applicant Muhammad Adam bought the agricultural land in dispute from Miskeen Begum and Ubedullah and after paying the remaining instalments on their behalf he entered into possession of the said land. As the accused party threatened to occupy the disputed land, the applicant filed a civil suit against some of them namely Umardin, Shahan, Soomar, Ramzan and Khuda Bux on 14-9-1980 when he also succeeded in obtaining interim injunction. Four days later on 18-9-1980 at 8 a.m. The complainant accompanied by his servant Muhammad Kassim and Kamdar Shafi Muhammad went to visit the disputed land.
3. They found that some of the accused were digging foundations and others were filling in the foundations. The complainant prevented them from doing so but they did not listen to him and showed their readiness to fight with him. On this the complainant raised cries whereon Muhdmmad Kassim and Kamdar Shafi Muhammad came to his rescue. The complainant went to report the incident to Police but the S.H.O. Refused to register his case.
4. Then he went to S.P., Nawabshah who forwarded his application to the S.H.O., Tharushah with direction to register the complaint and thus the case was registered, which after due investigation resulted in sending up of the accused in Court.
5. ' Besides complainant Muhammad Adam, the prosecution examined, Shafi Muhammad, Kassim and Mashir Umed All in support of their case. The accused in their statements under section '342, Cr.P.C. Denied the prosecution allegations and produced some documents purported to show that they were in possession of the land of Central Government and not of the complainant. The learned trial Court after considering the material available on record acquitted the accused as stated above.
6. ' After hearing the learned counsel for the parties namely, Mr. Usman Ghani Rashid in support of the applicant, Mr. A.R. Mirza on behalf of the Private respondents and Mr. Imam Bux Shaikh for the State, the Revision Application was dismissed by short order, dated 26-2-1986 for reasons to be recorded later on. Following are the reasons in support of the said order.
7. ' I have gone through the impugned judgment of acquittal passed by the Civil Judge and F.C.M., Kandiaro. It is neither perverse nor is in any way illegal. The learned Magistrate seems to have been influenced mainly by the pendency of the suit between the parties. In the opinion of the lenrned Megistratt the accused, have been dragged in the Criminal case before disposal of the evil suit only to secure their surrender to the complainant. It is further observed by him that the witnesses examined in support of the applicant's case are interested and, therefore, it is doubtful if the incident had ever occurred. Obviously, the reasoning that prevailed with learned trial Court is not without substance. It is an admitted position that the two witnesses who rescued the complainant from the accused are his own men, P.W. Muhammad Kassim is admittedly, his servant and Shafi Muhammad his Kamdar. It is also admitted that on account of the dispute over the land, the complainant is inimical towards the accused. This finds support from the pendency of the suit filed by the complainant against th accused only 4 days prior to occurrence. In these circumstances, the learned trial Court was right in holding the above two witnesses a being,interested. There is obviously no corroborative evidence in suppor of the so- called ocular version of the above interested witnesses. A such doubt entertained by the learned trial Court about the truth o complainant's case, was natural.
8. ' Apart from above, a copy of the plaint in the complainant's suit against some of the accused has been filed. It shows that the suit has been filed only against accused Umardin, Shahan, Soomar, Ramzan and Khuda Bux.
9. The plea taken in the suit is that the complainant has been in possession of the suit land and, therefore. This prayer is that permanent injunction be issued restraining the accused from interfering with his possession. The learned counsel for the applicant argued that since the complainant was in possession of the suit .Land which was even recognized by the Civil Court by issuing interim injunction restraining the accused from interfering with his possession, it was clear that the accused have committed trespass by entering into possession of the said land. I have perused the order of interim injunction passed by the Civil Court. It is to the following effect:- "In the meanwhile, the interim injunction as prayed is granted in favour of the applicant till decision of the applicant under section 39, Rules 1 and 2, C.P.C."
10. This order is, dated 14-9-1978 which was obviously based on one-sided version put forward by the complainant.
11. The accused side was yet to be heard. Therefore, the order cannot be construed is have reflected the complainant to be in possession of the land. -Moreover, in the criminal case, the accused had taken the plea that the land in their possession belonged to Central Government and not the complainant. In view of this plea the burden was on the complainant to have first proved that it was his land which had been occupied by the accused. There is, however, no evidence to this effect excepting the interested oral evidence of the complainant himself and his servant and Kamdar. Moreover, if the complainant's possession was threatened by the accused, as is alleged by him, the convenient remedy available to him was to have approached the Police or in case of their refusal the Court concerned for taking out 107/145, Cr.P.0 . Proceedings. The fact that he chose to file civil suit tends to show that his title as well as possession o the land were doubtful. Again the complainant should have awaited the outcome of the suit instead of resorting to criminal proceedings. Th accused has really occupied the disputed land in violation of the interim injunction granted by the civil Court, the complainant should hav rather moved the civil Court for initiating contempt proceedings against them. In any case, the complainant cannot be allowed to argue on the basis of interim injunction issued by the civil Court that he was in Possession and that the accused committed the trespass. As state above the interim injunction was passed on complainant's own statement without hearing of the accused. Therefore, until the suit was finall decided the complainant could not claim to have title over the land in dispute. Consequently, his claim for possession was also not sustainabl until then nor the accused could be prosecuted for having trespassed into complainant's land. Apart from this, no appeal has been file' against the order of acquittal on behalf of the State.
12. For above reasons, I see no justification for interfering wit the acquittal order of the lower Court and as such, as stated above,' the Revision Application was dismissed.