Judgment
Sheet
IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR
Cr. Acq. Appeal No. S –06 of 2017
Date of hearing : 01.11.2019.
Mr.
Sikandar Ali Junejo, Advocate for the appellant / complainant.
Mr.
Zulfiqar Ali Jatoi,Additional Prosecutor General.
J
U D G M E N T
NAIMATULLAH PHULPOTO, J.–Through this Acquittal Appeal, appellant /
complainant Abdul Rehman son of Nazeer Hussain has impugned the judgment dated 14.12.2016
passed by learned II-Additional Sessions Judge, Ghotki in Session Case No.26 of
2011 for offences under Sections 3, 5 and 6 of Illegal Dispossession Act, 2005.
On the conclusion of the trial vide judgment dated 14.12.2016, respondents /
accused No.1 to 4 namely Rano, Khan Zaman alias Bhooro, Ghulam Murtaza and
Saeed Ahmed were acquitted.
2. Brief
facts of the prosecution case, as reflected in the judgment of the trial Court,
are that on 20.08.2010 complainant Abdul Rehman Gabole filed complaint under sections
3, 4 & 7 of Illegal Dispossession Act, 2005 against accused Rano and three
others, alleging therein that present accused and some unknown persons on
20.07.2010 at about 10.00 a.m, being armed with deadly weapons, illegally and
forcibly occupied and dispossessed complainant Abdul Rehman and others from
land situated in S.No. 479 (03-33), 302 (00-34), 565 (2-29), 480 (2-35) and 566
(2-32) in deh Khanpur, Taluka Khangarh, District Ghotki. Complainant further
alleged that accused belonged to Qabza group. He tried to get the land vacated
but accused refused, therefore, he filed complaint against them, praying
therein that accused may be proceeded under the provisions of Illegal
Dispossession Act, 2005 and land in question may be restored to him.
3. In
compliance of section 5 of Illegal Dispossession Act, 2005, report from
concerned Mukhtiarkar and SHO were called by the trial Court. After observing
legal formalities, complaint of complainant was brought on record. Ultimately
it attended the status of Sessions Case No.26/2011.
4. Trial
Court framed the charge against the accused. They pleaded not guilty and
claimed to be tried.
5. At
the trial, complainant Abdul Rehman examined himself as well as two other
witnesses namely Muhammad Ibraheem and Abdul Wahid and thereafter counsel for
complainant closed the side of case.
6. Statements
of accused were recorded under Section 342, Cr. P.C in which accused claimed
false implication in this case and denied the allegation of complainant leveled
in the complaint.
7. Learned
trial Court after hearing learned counsel for the parties and assessment of the
evidence vide judgment dated 14.12.2016 acquitted the accused for the following
reasons:
“ In compliance of
section 5 of illegal Dispossession Act, 2005, a report was called from officer
Incharge of PS Khanpur Mahar, who submitted it on 23.10.2010. Before
discussing the evidence brought on record, I would like to highlight the main
points of enquiry report of said SHO.
SHO,
P.S Khanpur Mahar in his report (Exh. 16-A) has submitted that they went to
disputed land. Called persons from the locality but none was willing to give
statement, but according to complainant that accused Rano and others are in
possession of disputed land and cultivating his land, but in cross-examination
the SHO Qazî Muhammad Bachal examined at Exh, 16, in his cross-examination
he totally belied his own version by deposing that “in his report it is
not mentioned that accused settled there from more than 100 years, but
self-added that local people informed him about the accused, due to that
he mentioned this fact". He further admitted that he did not know
that complainant was dispossessed by accused or not.
Coming
to the evidence on record, to prove his case complainant has examined
himself. his brother Muhammad Ibrahim, Abdul Wahid, SIP Qazi Muhammad
Bachal, Muhammad Nawaz Kalwar Mukhtiarkar and ASI Habibullah Channa.
Complainant
Abdul Rehman narrated almost the same facts of his complaint and corroborated the
version of PWS Muhammad Ibraheem (brother of complainant) and Abdul Wahid (uncle of
complainant). The complainant in his evidence produced his
direct
complaint as Exh.7-A his statement u/s 200 CPC as Ex.7-B, form VII-B
at Ex.7-C. Perusal of all these documents it indicates that there are as many as 08 co-sharers of the land in dispute purchased
from Abdul Wahid through registered sale deed. The most important and crucial point
involved in this case is that the area of land in dispute, to this score
complainant in his evidence has deposed in cross-examination that total land in
S.No. 302, 3-34 Ghunta and from S.No.479,
3-33 Ghunta, the accused have occupied on western side portion of the
land, both the eye witnesses Muhammad Ibraheem and Abdul Wahid in their
respective depositions havealso given the same area as stated by the
complainant. Perusal of Deh Form VII-B (record of right) Exh.7-C, it reveals
that S.No. 302 shows (0-34) Ghunta and S.No. 479 shows land (3-33) Ghunta.
Mukhtiarkar Muhammad Nawaz, who submitted detail report during investigation
and in his evidence categorically stated that an area 00-04 ghunta out of S.No.302
was under the house/possession of Khan Zaman son of Ghulam Qadir and rest area
was lying vacant / uncultivated, whereas an area 00-33 ghunta out of S.No. 479
measuring 03-33 acres was in possession of under the houses of Rano. Ghulam
Murtaza and Saeed Ahmed and an area of 01-00 acre was in possession of
complainant and the paddy crop was standing therein. The rest area of 02-00
acre was lying vacant / uncultivated. The evidence of complainant, his P.Ws,
Mukhtiarkar is in conflict with each other. Perusal of direct complaint also
did not indicate the boundaries of the land in dispute. There are material
contradictions in the evidence of complainant party and record produced by
Mukhtiakrar in his evidence on the point of area. No sale deed has been produced,
according to which the entry No. 370 dated 03.06.2009 kept in revenue record.
Village form VII-B is not a title document. Moreover, SIP Qazi Muhammad Bachal,
who submitted report at the time of investigation of this case vide No.774
dated 23.10.2010, was examined by complainant, according to his report accused
Rano and others are residing at disputed land since 100 year, cultivated the land of complainant being
‘Hari’, he has not stated that the accused are land grabber and illegally
occupied the land in dispute. SIP Qazi Muhammad Bachal, in his
cross-examination has also stated that he did not know complainant was dispossessed
by accused or not.”
8. Complainant being dissatisfied with the
acquittal of the accused has filed this appeal.
10. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General argued
that trial Court has properly appreciated the evidence and acquittal of the
accused / respondents is neither perverse nor based upon misreading of
evidence. He has supported the judgment of the trial Court.
11. It
is settled law that ordinary scope of acquittal appeal is considerably narrow
and limited and obvious approach for dealing with the appeal against the
conviction would be different and should be distinguished from the appeal
against acquittal because presumption of double innocence of accused is
attached to the order of acquittal. In case of Zaheer Din v. The State
(1993 SCMR 1628), following guiding principles have been laid
down for deciding an acquittal appeal in a criminal case:
“However, notwithstanding the diversity of facts
and circumstances of each case, amongst others, some of the important and
consistently followed principles can be clearly visualized from the cited and
other cases-law on, the question of setting aside an acquittal by this Court.
They are as follows:--
(1) In an appeal against acquittal the
Supreme Court would not on principle ordinarily interfere and instead would
give due weight and consideration to the findings of Court acquitting the
accused. This approach is slightly different than that in an appeal against
conviction when leave is granted only for reappraisement of evidence which then
is undertaken so as to see that benefit of every reasonable doubt should be
extended to the accused. This difference of approach is mainly conditioned by
the fact that the acquittal carries with it the two well accepted presumptions:
One initial, that, till found guilty, the accused is innocent; and two that
again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second
presumption and will also thus lose the first one if on pints having conclusive
effect on the end result the Court below: (a) disregarded material evidence;
(b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles
of reappraisement of evidence will have to be kept in view while examining the
strength of the views expressed by the Court below. They will not be brushed
aside lightly on mere assumptions keeping always in view that a departure from
the normal principle must be necessitated by obligatory observations of some
higher principle as noted above and for no other reason.
(4) The Court would not interfere with
acquittal merely because on reappraisal of the evidence it comes to the
conclusion different from that of the Court acquitting the accused provided
both the conclusions are reasonably possible. If however, the conclusion
reached by that Court was such that no reasonable person would conceivably
reach the same and was impossible then this Court would interfere in
exceptional cases on overwhelming proof resulting in conclusion and
irresistible conclusion; and that too with a view only to avoid grave
miscarriage of justice and for no other purpose. The important test visualized
in these cases, in this behalf was that the finding sought to be interfered
with, after scrutiny under the foregoing searching light, should be found
wholly as artificial, shocking and ridiculous. ”
12. In the recent judgment in the case of Zulfiqar
Ali v. Imtiaz and others(2019 SCMR 1315), Hon'ble Supreme
Court has held as under:
“2. According to the autopsy report, deceased
was brought dead through a police constable and there is nothing on the record
to even obliquely suggest witnesses’ presence in the hospital; there is no
medico legal report to postulate hypothesis of arrival in the hospital in
injured condition. The witnesses claimed to have come across the deceased and
the assailants per chance while they were on way to Chak No.504/GB. There is a
reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as
the witnesses, who had first seen the deceased lying critically injured at the
canal bank and it is on the record that they escorted the deceased to the
hospital. Ali Sher was cited as a witness, however, given up by the
complainant. These aspects of the case conjointly lead the learned
Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend
benefit of the doubt consequent thereupon. View taken by the learned Judge is a
possible view, structured in evidence available on the record and as such not
open to any legitimate exception. It is by now well-settled that acquittal
once granted cannot be recalled merely on the possibility of a contra view.
Unless, the impugned view is found on the fringes of impossibility, resulting
into miscarriage of justice, freedom cannot be recalled. Criminal Appeal
fails. Appeal dismissed.”
13. From
the Judgment of trial Court it reveals that there is no serious flaw or
infirmity in the impugned judgment. There were no boundaries of the disputed
land. Mukhtiarkar concerned has been examined before the trial Court and stated
that houses of accused are situated at the disputed land since more than 100
years. Complainant party had filed direct complaint against the respondents /
accused in which respondents / accused were acquitted on 21.01.2012. Respondent
No.1 Rano Khan submits that he is School Teacher and the houses of other
villagers are situated in village Imam Bakhsh and Kamal Khan Pitafi which is
sanctioned village hence the claim of appellant / complainant is unfounded. View taken by the learned trial Court is a
possible view, structured in evidence available on record and as such not open
to any legitimate exception. It is by now well settled that acquittal once
granted cannot be recalled merely on the possibility of a contra view. Unless,
impugned view is found on fringes of impossibility, resulting into miscarriage
of justice, freedom cannot be recalled.
14. This Criminal Acquittal Appeal is without
merit and the same is dismissed.
J U D G E
Irfan/PA