This criminal appeal in case of acquittal filed by Qazi Muhammad Ayaz under section 417 (2), Cr.P.C. With leave of the Court arises in the circumstances that follow.
2. On the complaint of Qazi Muhammad Ayaz, dated 10-11-1990 prosecution of accused- respondents Ghulam Mustafa, Muhammad Idrees, Muhammad Sadiq and Tahir Mehmood took place before the Court of a Magistrate 1st Class, Abbottabad on a charge under section 447/427/34, P.P.C. The complainant was owner through purchase of a certain land measuring 4 Kanals 11 Marlas comprised in Khasras Nos.784/1, 785 in village Nawanshehr---Shamali and possessed it as such where he had also constructed a boundary wall. The accused on 2-11-1990 entered into the land by ploughing it with a tractor and dismantled also boundary wall erected around the fields by causing loss to the appellants in the sum of Rs.20,000 with intent to intimidate, insult and annoy the complainant. They not only remained unlawfully in the land afterwards but cultivated it also on 9-11-1990. P.W. Faqir Muhammad who happened to see the incident informed the, appellant who then lodged a written complaint which after local inquiry by the S.H.O., Police Station, Mirpur came for disposal before the learned Magistrate. He formally charged the accused under section 427 read with sections 447, 34 P.P.C. And on the conclusion of trial found them guilty of the commission of offences on both counts and convicted the respondents as under:-- All the accused were found guilty of the commission of an offence of criminal trespass under section 447/34, P.P.C. And sentenced (each) to 3 months' S.I. They were further convicted under sections 427/34, P. P. C., for causing damage to the boundary wall erected by the complainant on four sides of his landed property and sentenced them (each) to 6 months' S. I.
3. On appeal before Sessions Judge, Abbottabad against their conviction and sentence by the accused, the learned Sessions Judge on the acceptance of appeal recorded a judgment on their acquittal by setting aside the judgment and order impugned and set the accused free, vide judgment and order, dated 9-5-1994. Hence this appeal under section 417 (2), Cr.P.C.
4. I have heard Mr. Fazal Haq Abbasi, Advocate on behalf of theappellant and Qazi Muhammad Shehryar, Advocate for the accused-respondents. The State Counsel who was also heard supported the complainant's case. Record of the trial Court shows that Patwari Nawanshehr- Shamali has produced relevant revenue papers relating to land comprised in Khasra Nos. 784/1 and 785. The extract from the Settlement Jamabandi of 1982-83 indicates, that Qazi Muhammad Ayaz is recorded in possession of entire disputed land measuring 4 Kanals 11 Marlas in the cultivation column whose name is also mentioned as owner of the property in the ownership column. The same entries are repeated in the next following Jamabandi of 1986-87. Muhammad Ziafat Patwari has also produced extract from the Crops Inspection Register (Khasra Girdawari) between the period from 6-10-1987 to 22-4-1991 which further corroborates possession of the appellant over the land in dispute. He on the spot also made demarcation of the property during inquiry proceedings and stated that the land was found in possession of the complainant. A.S.I.
Umar Farooq during inquiry proceedings on the complaint (Exh. P.A.) got demarcated the land on the site with the help of the Patwari as the report Exh. P.W.1/4 shows. He further noticed remains of the wall built on the spot. He also stated of an old wall erected in the land about 15/16 years back.
The A.S.I. Also stated that P.W. Faqir Muhammad resides in the nearby of the suit property.
5. P.W. Faqir Muhammad deposed that on 2-11-1990 he was present in the house adjacent to the disputed property when saw some persons removing stones from the land on which his private servant Gul Rehman informed him that a wall erected on the land was being pulled dov, n by accused Ghulam Mustafa, Muhammad Sadiq, Muhammad Idrees and their nephew by the use of a tractor: The accused Ghulam Mustafa and Muhammad Sadiq were directing the tractor driver to dismantle the wall while accused Muhammad Idrees and their nephew were removing bricks and stones etc. In a "Rehri". That he although asked the accused to abstain from causing damage to the complainant's property but in vain. He then went to the house of the appellant and informed in mates of the incident. That at 3-4 a.m. On the same day Qazi Muhammad Ayaz came to his house and he narrated him the event. P. W,. Faqir Muhammad had built his nearby house in the year 1983.
He has admitted that he was given approach passage for his dwelling house by the complainant.
6. Qazi Muhammad Ayaz appellant also deposed before the Court and corroborated on all material particulars/evidence furnished by Faqir Muhammad P.W. The complainant stated that on 2-11-1990 he was informed of the occurrence by P. W. Faqir Muhammad. He further testified the correctness of the contents of his report Exh. P.A. The complainant stated that a case under sections 379/427, P.P.C., was registered against the accused about 10/11 years back on the report of his brother, namely, Muhammad Imtiaz and the accused were acquitted in that case but since after that their relations with the complainant party had remained strained. The appellant also stated that he had in fact purchased an area of 5 Kanals 15 Marlas of land (including the suit land) from Haji Nawal Khan out of which he subsequently sold 1 Kanal 4 Marlas to one Mst. Urfia Zulfiqar.
The suit land was originally owned by the uncle of the accused which he subsequently sold to different persons.
7. The suit property alongwith certain other land had fallen in private partition to' the share of the uncle of the accused. He afterwards sold it to different persons and an area of 5 Kanals 15 Marlas was purchased by the appellant from one Haji Nawal Khan out of which he himself later on sold an area of I Kanal 14 Marlas to Mst. Urfia Zulfiqar. Possession of the appellant over the land in dispute has been established not only from the oral evidence but also from the entries of the Revenue Record right from the Settlement Jamabandi of 1982-83. The appellant had not only got demarcated his land at the spot but also erected a wall on four sides later on.
8. It has been proved beyond any reasonable doubt from the independent I evidence of P.W. Faqir Muhammad and his servant, namely, Gul Rehman that all the four accused on the fateful day trespassed criminally into the land of the appellant by ploughing it through a tractor and dismantled the boundary wall by causing him substant monetary loss. The learned counsel on behalf of the accused while arguing the case stated that P.W. Faqir Muhammad is an interested person as he was given a passage to his house by the appellant out of the suit land. This argument rather establishes the appellant's case by proving his possession over the land in dispute at the relevant time. Faqir Muhammad is not even a permanent resident of this place. It seems that he came and settled here some time back by constructing a house. It cannot be as such stated that he or his servant were biased and had their own axe to grind against the accused by causing their conviction on a false criminal charge. It is true that Faqir Muhammad had some litigation with the accused but it was in relation to another land sold to him by the uncle of the accused. The prosecution, in the circumstances of all this evidence, having been able to prove the case against the accused beyond any reasonable doubt, they were rightly convicted and sentenced for the commission of offences under sections 447/427/34, P.P.C. And the learned Sessions Judge on the acceptance of their appeal wrongly passed orders of their acquittal from the charge by forwarding reasons that appellant Qazi Muhammad Ayaz was not an eye-witness of the case by himself and lodged report on the information furnished by P.W. Faqir Muhammad. He similarly did not give any weight to the evidence of Faqir Muhammad or his servant Gul Rehman for no good reasons and rather entered himself into unnecessary controversy as when and where the appellant lodged report. The learned lower Appellate Court has in fact fallen into error by non-reading and misreading of prosecution evidence in the true perspective.
9. Criminal cases like this in these days are at rampant. The people instead of resolving their civil disputes through the process of Courts have chosen the other way round by taking law into their own hands and settling disputes through criminal transactions, which could, neither be left unnoticed nor unpunished if proved in accordance with law. The leniency, if any, shown on the part of the Courts in dealing with such cases would rather amount to the improper discharge of conscientious duty by the Presiding Officers of the Courts which undoubtedly helps indirectly and even directly to the encouragement of crimes in the society. No leniency, as such, should be shown to the accused persons if they after going through the process of trial before a competent Court are found guilty on the basis of evidence produced by the prosecution.
10. In this background of the matter I see, that the accused were rightly held guilty and convicted of the commission of offences under sections 447/427/34, P.P.C., and I would accordingly on the acceptance of this appeal, set aside the judgment and order impugned of the learned Sessions Judge recorded in appeal on 9-5-1994 by restoring that of Magistrate Ist Class, Abbottabad dated 26-7-1993. The accused on conviction on the aforesaid charges shall undergo the following terms of sentences:---- Each of the accused shall be sentenced to 3 months' R.I. With fine of Rs.500 under section 447/34, P.P.C., or one month R.I. In default. They are further convicted for the commission of offences under section 427/34, P.P.C., and sentenced (each), to one year R.I. With fine of Rs.5,000 or three months'
R.I. In default. The sentences (recorded on two counts) shall run consecutively.
The accused are committed to custody.