Haji Sanaullah V. Khaliq Dad,

2011 YLR 2721

[Quetta]

Befo re Abdul Qadir Mengal and Jamal Khan Mandokhail, JJ

Haji SANAULLAH ---Appellant

Versus

KHALIQ DAD and 3 others ---Respondents

Criminal Acquittal Appeal No.158 of 2011, decided on 8th August, 2011.

Penal Code (XLV of 1860) ---

----Ss. 447 & 147 ---Criminal Procedure Code (V of 1898), Ss.417(2 -A) & 249 -A---Criminal trespass ---Appeal against acquittal ---Complainant who claimed himself owner of property in question lodged report against respondents/accused persons alleging that they had committed offen ce of criminal trespass under Ss.447/147, P.P.C. ---Ownership and possession of the property was in dispute, between the parties ---Disputed land originally belonged to respondents/accused persons; and it was not confirmed that the same was purchased by one who then transferred the same to the complainant ---Prima facie, a symbolic possession was given to the complainant while factual or actual possession of the property still seemed not clear ---Suit over the ownership of the property in dispute was pending be fore the civil court -- -Acquittal order by Judicial - Magistrate under S.249 -A, Cr.P.C., deserved no interference --- Entrance of legally entitled person could not hold him responsible for his role or any case was made out, falling under S.447/147, P. P. C.

AIR 1968 SC 702 rel.

Muhammad Arshad Aziz for Appellants.

Nemo for Respondents.

Date of hearing: 2nd August, 2011.

JUDGMENT

ABDUL QADIR MENGAL, J .--This Criminal Acquittal Appeal under section 417(2 -A), Cr.P.C. is directed against the order dated 2 -7-2011, passed by the learned Judicial Magistrate, Kharan, whereby the application under section 249 -A, Cr.P.C. filed by the respondents Nos.1 to 3 was allowed and they were acquitted of the charge.

2. The facts, as have been narrated in the F.I .R. No.27 of 2011, registered at Police Station City, Kharan reveal that one Haji Sanaullah, had purchased a piece of land in Rs.80,000 at Mouza Haro, Khewat No.180, Khatooni No.188 from one Haji Khuda -e-Nazar, who had purchased the same from one Mst. Mall as and transferred it to his name. It was 25 -3-2011 at about 4 -00 p.m. when complainant got informa tion through Shah Muhammad son of Rahimullah that Mst. Mallas wife of Khalique Dad along with her husband and two sons namely Muhammad Aslam and Amanullah t hrough a tractor working over the land. As complainant was claiming himself owner of the property and the respondents through trespass have committed an offence falling under sections 447 and 147 P.P.C., therefore, he lodged the report for action against t he respondents/accused.

3. After registration of the F.I.R., the Investigating Officer arrested the accused and produced them before the Judicial Magistrate, Kharan. The charge was read over to accused, and then statement of P.W.1 Haji Sanaullah complain ant was recorded. Whereafter an application under section 249 -A, Cr.P.C. was moved, same was allowed through impugned order and the respondents/accused were acquitted of the charge.

4. Mr. Muhammad Arshad Aziz, learned counsel for the appellant mainly co ntended that the Judicial Magistrate, through a haphazard and hasty order, acquitted the respondents/ accused, without considering the merits or the evidence of the case. Again learned counsel stated that a civil suit is pending over the property, and Judi cial Magistrate did not consider the possession of the property or purchased documents, and passed the impugned order, contrary to the facts and law.

5. On our hearing the learned counsel and perusing the record, we are of the view that ownership and pos session of the property still is in dispute, between the parties. While Admittedly the disputed land originally belonged to the respondents/ accused, and it is not yet confirmed that Khuda -e-Nazar had purchased the property, Khewat No.180, Khatooni No.188 through a valid transaction and then transferred the same to the complainant or otherwise. Prima facie a symbolic possession, given to the appellant/complainant and the factual or actual possession of the property is still seems not clear. As the same is e vident from the statement of the complainant himself that a suit over the ownership of the disputed property or Khatooni No.188 or Khewat No.180 pending before the Civil Judge, hence, in view of the above, the acquittal 'order of learned Judicial Magistrat e, Kharan under section 249-A, Cr.P.C., deserves no interference. Because in such circumstances entrance of legally entitled person could not hold him responsible for his role or any case made out, falling under section 447, P.P.C. In this respect benefit has been taken from AIR 1968 (SC) 702.

With the above, this appeal has no force and is dismissed in limine.

H.B.T./76/Q Appeal dismissed.