Withholding of Evidence in a case of Illegal Dispossession Act 2005

PLJ 2020 Lahore (Note) 91 [Rawalpindi Bench, Rawalpindi] Present : Raja Shahid Mehmood Abbasi , J. ARSALAN etc.--Petitioners versus ADDITIONAL SESSIONS JUDGE etc .--Respondents W.P. No. 1311 of 2016, decided on 9.3.2017. Constitution of Pakistan, 1973-- ----Art. 199--Illegal Dispossession Act, (XI of 2005), S. 3--Constitutional petition--Non-production of rent deed--Agreement to sell--Non-producing of material witness--Withholding of evidence--Pendency of civil litigation contradictory evidence--Misreading of evidence--Benefit of doubt--Acquittal of--Challenge to--Admittedly complainant Mst . Zafri Bibi (PW.1) and Murad Khan (PW.2) are not eyewitnesses of occurrence as complainant was resident of Hazro and not Attock and complainant was informed regarding occurrence by one Allah Daad but surprisingly said most natural witness of occurrence, was not produced by complainant in evidence for reason best know to complainant--It is settled by now that prosecution cannot withheld evidence of any material witness and if any party withholds best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it--Complainant is maternal grandmother of accused/petitioners but said fact has been suppressed by complainant while filing private complainant--Said fact creates doubt about prosecution story--It is also a circumstance that civil litigation is also pending adjudication between parties-- Cccused petitioners in their statements u/S. 342, Cr.P.C . also stated about fact of purchase of disputed house from their maternal grandfather Hukim Din--Trial Court has not appreciated evidence produced by prosecution in its true perspective--After considering all pros and cons of case, I have come to an irresistible conclusion that prosecution has failed to prove its case against appellant beyond any shadow of reasonable doubt--Prosecution has relied upon discrepant, contradictory and flimsy evidence which is also full of dishonest improvements while implicating accused and carving story of their own choice based on their whims--Trial Court has misread evidence on record in violation of dictum laid by Superior Courts in various pronouncement, therefore, conviction of petitioners is not sustainable in eyes of law--There is no cavil to proposition that if there is a single circumstance which creates reasonable and cogent doubt regarding prosecution case, same is sufficient to extend benefit to accused, whereas, instant case is replete with circumstances which have rendered serious doubts about prosecution story--Prosecution was duty bound to produce trust worthy sure footed and confidence inspiring evidence to prove charges against petitioners beyond any shadow of doubt but prosecution miserably failed to discharge onus, therefore, by extending benefit of doubt to petitioners--Petition allowed. [Para 6, 7, 8 & 9] A, B, C & D 1995 SCMR 1345 ref. Malik Amjad Ali , Advocate for Petitioners. Mr. Nadeem Akhtar Bhatti , AAG for State. Mr. Mubaras Khan Alizai , Advocate for Respondent No. 2. Date of hearing: 9.3.2017. Order Through this constitution petition, the petitioner, assails the vires of order dated 27.04.2016 passed by learned Additional Sessions Judge, Attock , through which he convicted the petitioners u/S. 3 of Illegal Dispossession Act, 2005 and sentenced them to one year S.I. each with a fine of Rs. 50,000/- each, in default to further undergo three months S.I. each. The petitioners were further directed to pay compensation of Rs. 50,000/-each (total Rs. 2,00,000/-) to the complainant under Section 544-A, Cr.P.C . and in default of payment of compensation to further undergo six months S.I. The accused was extended the benefit of Section 382-B, Cr.P.C . They were also ordered to restore possession of house No. 21-E, Peoples Colony, Attock to the complainant/Respondent No. 2.

2. Brief facts of the case are that Respondent No. 2 filed private complaint u/S. 3/4 of Illegal Dispossession Act, 2005, alleging therein that she was owner in possession of property Bearing No. 21-E, situated in Peoples Colony, Attock , and has given the same on rent of Rs. 4000/- per month to one Allah Daad . and accused/petitioners have no concern whatsoever with it but on 27.10.2013 at 12:00 pm (noon) they forcibly took possession of the same after throwing the household articles of the tenant. The learned trial Court after recording evidence of the parties convicted and sentenced the petitioners in the manner mentioned above.

3. Learned counsel for the petitioners contends that the impugned order is against the law and the facts; that admittedly the complainant is not the eye witness of the occurrence; that alleged eyewitness of the occurrence i.e . Allah Daad , who was tent of the complainant, has not been produced in evidence; that no rent deed has been produced by the complainant; that in fact the complainant is maternal grandmother of the petitioners and the house was purchased by them vide agreement to sell dated 18.08.2009 (Ex.DD) from their maternal grandfather Hukam Din (deceased) and the said agreement to sell is still in field; that admittedly the complainant is not the resident of the Attock and she lives in Hazro ; that the impugned order is result of mis -reading and non-reading of evidence on record; that the complainant miserably failed to prove its case against the petitioners, hence they deserve acquittal.

4. On the other hand learned counsel for Respondent No. 2 has opposed this petition and supported the impugned order on the ground that learned trial Court while passing the impugned order has committed no illegality; that the complainant has successfully proved its case against the petitioners by producing confidence inspiring and trustworthy evidence and the same needs no interference by this Court in exercise of constitutional jurisdiction; that the learned trial Court has rightly ordered for restoration of the possession to Respondent No. 2.

5. Heard. Record appended with this file perused.

6. It has been observed that according to the complainant she was owner in possession of property Bearing No. 21-E, situated in Peoples Colony, Attock , and the same was in possession of one Allah Daad on monthly rent of Rs. 4000/- per month and on 27.10.2013 at 12:00 pm (noon) the petitioners forcibly took possession of the same after throwing the household articles of the tenant. Admittedly the complainant Mst . Zafri Bibi (PW.1) and Murad Khan (PW.2) are not the eyewitnesses of the occurrence as the complainant was resident of Hazro and not Attock and the complainant was informed regarding the occurrence by one Allah Daad but surprisingly said most natural witness of the occurrence, was not produced by the complainant in evidence for the reason best know to the complainant. It is settled by now that the prosecution cannot withheld the evidence of any material witness and if any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it See Muhammad Rafique and others vs. The State and others (2010 SCMR 385). Similarly act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness box, he might not have supported the prosecution. Reliance is placed on the case of Lal Khan vs. The State (2006 SCMR 1846).

7. It is also a circumstance that the complainant is maternal grandmother of the accused/petitioners but the said fact has been suppressed by the complainant while filing the private complainant. The said fact creates doubt about the prosecution story. It is also a circumstance that civil litigation is also pending adjudication between the parties. The accused petitioners in their statements u/S. 342, Cr.P.C . also stated about the fact of purchase of the disputed house from their maternal grandfather Hukim Din.

8. In view of the above, it is observed that the learned trial Court has not appreciated the evidence produced by the prosecution in its true perspective. After considering all the pros and cons of the case, I have come to an irresistible conclusion that the prosecution has failed to prove its case against the appellant beyond any shadow of reasonable doubt. The prosecution has relied upon discrepant, contradictory and flimsy evidence which is also full of dishonest improvements while implicating the accused and carving the story of their own choice based on their whims. The learned trial Court has misread the evidence on record in violation of the dictum laid by the Superior Courts in various pronouncement, therefore, conviction of the petitioners is not sustainable in the eyes of law. There is no cavil to the proposition that if there is a single circumstance which creates reasonable and cogent doubt regarding the prosecution case, the same is sufficient to extend benefit to the accused, whereas, the instant case is replete with circumstances which have rendered serious doubts about the prosecution story. In the case of Tariq Pervez vs. The State (1995 SCMR 1345), the Hon’ble Supreme Court of Pakistan at page 1347, was pleased to observe as under: “ .... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of grace and concession but as a matter of right.”

9. For what has been discussed, I am of the view that prosecution was duty bound to produce trust worthy sure footed and confidence inspiring evidence to prove charges against the petitioners beyond any shadow of doubt but prosecution miserably failed to discharge onus, therefore, by extending benefit of doubt to the petitioners. W.P.No . 1311/2016 is accepted . Resultantly, conviction and sentence awarded to the said petitioners by the learned trial Court vide judgment dated 27.04.2016, is set aside and they are acquitted of the charge. The petitioners are on bail. Their bail bonds are discharged. (Y.A.) Petition allowed