Criminal Acquittal Appeal No. 311 of 2014

                                                                                                                                                            Date                             Order with Signature of the Judge                                                           

 

1.For orders on MA No. 2832/2016

2.For orders on office objection

3.For hearing of case.

 

 

Heard on 19th May, 2016.

 

Mr. Hakim Ali Mallah, Advocate alongwith Appellant

Mr. Ghulam Sarwar, Advocate for Respondent

Mr. Abdullah Rajput, Assistant Prosecutor General, Sindh.

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SYED MUHAMMAD FAROOQ SHAH, J.:- Appellant/Complainant Muhammad Ameen, being dissatisfied with the acquittal order dated 30.10.2014, passed under Section 265-H (i) Cr.P.C., by 1st Additional Sessions Judge, Malir, Karachi, in Illegal Dispossession/Criminal Direct Complaint No. 15/2013, approached this Court, by filing titled appeal under Section 417 Cr.P.C. with a prayer to convict the Respondents/accused and to handover the possession of disputed premises by this Court.

 

2.       Succinct facts as narrated by the appellant/Complainant Muhammad Ameen in the complaint are that due to fear from the hands of Respondents, he left the disputed house and went to Larkana where he filed an application before the concerned police but no action has been taken, hence returned back and went to his house where he found his house locked by the accused persons and on 27.02.2013, the accused persons/Respondents started firing on him and issued threats for not vacating the said house. The Sessions Judge, after conducting the preliminary inquiry, took cognizance by issuing process against the persons; copies under 265 Cr.P.C. were delivered, formal charge was framed. Complainant to prove his case examined himself, produced certain documents and PW Muhammad Owais and PW3 Ali Bux were examined. Thereafter, statement of accused under Section 342 Cr.P.C. was recorded. The trial Court settled the points for determination that as to whether the Respondents have forcibly dispossessed the complainant and illegally occupied the house bearing No.524, Himayati Goth, Cattle Colony, Malir, Karachi, admeasuring 400 Sq. Yards and by considering the prosecution evidence in detail, reached at the conclusion that the complainant has failed to prove his case beyond the shadow of doubt regarding dispossession over the said property by the accused persons, therefore, acquitted them.           

 

3.       Arguments heard. Record perused.

 

4.       Learned counsel for the appellant has failed to show any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which apparently being passed on sound and cogent reasons as the appellant/Complainant has also failed to prove himself to be the lawful owner/occupier of the property in question or having title over the property but he relied upon an unregistered sale agreement, which related to the sale of said house to a lady Mst. Roshan Ara Syed. More-so, there are no specific allegations of forcible dispossession of the complainant and no time, month, year or date of dispossession has been mentioned in the complaint. Admittedly, at the time of alleged dispossession, he was not found present at the mentioned property and such fact has also not been supported through independent witnesses including seller namely Qadir Bux, who has allegedly sworn the affidavit, being its lawful owner but he did not produce any title/authority to sale the said property.

 

5.       Counsel for the Respondent filed counter objections to the appeal in hand and has shown certain material contradictions in the evidence of the appellant and his witnesses examined during the trial of complaint. Per learned Counsel, the title dispute cannot be resolved by invoking the provisions of Section 3 & 4 of Illegal Dispossession Act. To support his contention, learned Counsel has placed his reliance on the case of Muhammad Hayat Khan vs. The State (2014 YLR 390). Learned Counsel submitted that the trial Court has rightly concluded the matter and dismissed the application by a speaking and legal judgment.  

 

6.       Conversely, learned APG submits that the impugned judgment is well-reasoned and speaking judgment and submitted that admittedly neither time, day, date and year of alleged dispossession of the Complainant has been mentioned in the Complaint filed by the appellant, moreso, sale agreement does not show the description of the property as well. Learned APG submits that the aforementioned facts are sufficient to create dent in the prosecution case, therefore, the trial Court has rightly extended benefit of doubt in favour of the Respondents/accused. To support his contention, learned APG placed his reliance on 1995 SCMR 1345.

 

7.       A perusal of record shows that appellant has miserably failed to establish extra ordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial court may be interfered with by this court.

 

 

8.       It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the later case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts, whereby accused were exonerated from the commission of crime as held by the Apex Court in the case of MUHAMMAD IJAZ AHMAD V/S FAHIM AFZAL (1998 SCMR 1281) and JEHANGIR V/S AMINULLAH AND OTHERS (2010 SCMR 491). It is settled principle of law as held in plethora of case law that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice. 

 

9.       There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial court, which being based on sound and cogent reasons does not warrant any interference by this Court and is accordingly maintained.

 

10.     By a short order announced today, the instant appeal was dismissed and above are the reasons for the said short order.

 

 

 

*Faisal Mumtaz/PS*                                                                         J U D G E