ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acquittal Appeal No.S- 22 of 2018

Date Order with Signature of Hon’ble Judge

For hearing of main case.

08-04-2019.

Mr. Ubedullah Ghoto, advocate for the Appellant

Mr. Sudhamchand alias Sudhamo Kewal Ramani, advocate for respondents Nos. 2 & 3.

Mr. Abdul Rehman Kolachi, DPG for the State

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Irshad Ali Shah, J;-. The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned order dated 06.01.2018 passed by learned 1^st Additional Sessions Judge Ghotki, whereby the private respondents have been acquitted of the charge for offence punishable u/s 3 and 4 of the Illegal Dispossession Act, 2005 by way of an application u/s 265-K Cr.P.C by making following observation;

“According to report of concerned Mukhtiarkar one of the co-owner namely Abdul Raheem sold out his share to Mazari and it is also reported by the Mukhtiarkar that partition in city survey map has not been made and the disputed property is in joint possession of co-sharer therefore, in my humble view that the parties have right of occupation in each and every inch of the disputed property. In these circumstances I find that the charge against the accused is appearing to be groundless and if further trial is conducted the same will not end into conviction of the accused. I therefore, allow the application and in the result the accused namely Malhar, Bakir and Waryal Dass are acquitted of the charge u/s 265-K Cr.P.C”.

2. It is contended by learned counsel for the appellant/complainant that the learned trial Court has recorded the acquittal of the private respondents without lawful justification. By contending so, he sought for remand of the matter with direction to learned trial Court to proceed with the case in accordance with law.

3. Learned DPG for the State and learned counsel for the private respondents have sought for the dismissal of instant Criminal Acquittal Appeal by contending that the impugned order is well reasoned and the instant Cr. Acquittal Appeal is in competent as it is filed by the appellant without seeking leave to appeal.

4. I have considered the above arguments and perused the record.

5. Admittedly the acquittal of the private respondents has been recorded by learned trial Court, on direct complaint, such acquittal was to have been impugned after seeking special leave to appeal as is prescribed by sub-section (2) to Section 417 Cr.P.C and such special leave to appeal was to have been sought for within sixty days time of order of such acquittal as is prescribed by sub‑section (3) to Section 417 Cr.P.C. If such special leave is refused then such appeal as per sub-section (4) to Section 417 Cr.P.C, would not be entertained. In the instant matter, no such special leave to appeal is sought for by the appellant/complainant prior to filing of instant criminal acquittal appeal. What to talk of its refusal or grant. Such omission on the part of appellant/complainant has made the instant Cr. Acquittal Appeal to be in competent (not entertainable).

6. After recording acquittal, the person acquitted carry with it, the presumption of double innocence until and unless such acquittal is found to have been passed in cursory or arbitratory manner.

7. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it has been held by the Hon’ble Apex Court that;

“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.

8. Nothing has been brought on record, which may suggest that acquittal of the private respondents has been recorded by learned trial Court in arbitrary or cursory manner which may justify making interference with it by this Court by way of instant Criminal Acquittal Appeal. It is dismissed accordingly.

Judge

ARBROHI