IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acquittal Appeal No.S-40 of 2021

Appellant: Moran Khan Gabole

Through Mr. Soomar Das. R

Parmani, Advocate

Date of hearing: 01.11.2021.

Date of Judgment: 10.12.2021.

JUDGMENT

Zulfiqar Ali Sangi, J: This Criminal Acquittal Appeal has been filed by the Appellant against the judgment dated 16.03.2021, passed by learned Additional Sessions Judge, Daharki, whereby Respondents No.1 to 3 have been acquitted of the charges leveled against them under Section 3(2) of Illegal Dispossession Act, 2005.

2. Concise facts as alleged in the complaint are that Complainant Moran Khan is owner of 50 Paisa share (01-37) acres out of Sr. No.282 of Deh Sher Khan Bozdar, Taluka Mirpur Mathelo as per Revenue entry No.20 dated 11.04.2005, and complainant was put into possession by orders of Court on 16.01.2016 and he remained in peaceful possession till 22.04.2016. It is further alleged that on 22.04.2016 at about 10:00 a.m. complainant alongwith his son Khalid Hussain and wife Mst. Jannat were working in the disputed land meanwhile accused Ali Nawaz, Shahnawaz, Dilbar alongwith (4) unidentified persons duly armed with guns came at the land of complainant and caused kicks and fists blows to him and forcibly dispossessed him on the show of force from his land bearing Survey No.282, situated in Deh Sher Khan Bozdar, Taluka Mirpur Mathelo so also collected wheat and mustered crop put into trolley and went away. Thereafter the complainant went to P.S. Jarwar for redressal of his grievance, but of no avail and he filed complaint under the Illegal Dispossession Act 2005.

3. Learned counsel for the Appellant/Complainant, at the very outset submits that the impugned judgment passed by learned trial Court is illegal, unlawful and void; that learned trial Court while passing the impugned judgment has not appreciated the evidence of the Appellant/Complainant and his witnesses with regard to commission of offence committed by the Respondents/accused; that the learned trial Court did not consider the evidence of complainant, which was consistent with the contents of complaint and was duly supported by the prosecution witnesses wherein each and every respondent/accused was specifically attributed proper role; that impugned judgment is based on presumption and assumption so also on surmises and conjectures; that civil litigations have also been finalized in favour of appellant/complainant and he was put in possession by executing Court through due process; learned trial Court did not apply its judicial mind while passing the impugned judgment; that there is no major contradictions, however the minor discrepancies are not fatal to the case of appellant, even otherwise the minor discrepancies should have been ignored instead of acquitting the accused. In the last, he submits that impugned judgment passed by learned trial Court may be set-aside and respondents may be convicted.

4. I have heard learned counsel for the appellant and perused the record available in the file.

5. From perusal of record, it appears that impugned judgment has been passed on a complaint filed under Section 3(2) of Illegal Dispossession Act, 2005; however under Section 417(2) & (3) of Cr.P.C, the aggrieved party has to present application for special leave to appeal before the Court within 60 days and after its grant the High Court may proceed with the acquittal appeal. For the sake of convenience, Section 417(2) & (3) of Cr.P.C is reproduced as under:-

“(2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.

(3) No application under sub-section (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order.”

6. It is well settled principle of interpretation law that “If the words of the Statute are themselves clear and unambiguous, no more is necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of legislature”, as has been held by the Honourable Supreme Court of Pakistan in the case of Mumtaz Hussain v. Dr. Nasir Khan and others (2010 SCMR 1254).

In another case of Ghulam Haider and others v. Murad through Legal Representatives and others (PLD 2012 SC 501), it is also held by the Honourable Supreme Court of Pakistan that:-

“Where the plain language of a statute admits of no other interpretation then the intention of the legislature conveyed through such language is to be given its full effect.”

7. Suffice it to say that for assailing the impugned judgment, arising out of a complaint, complainant has to file an application seeking special leave to appeal within 60 days of the judgment, which is mandatory requirement as per section 417 (2) & (3) Cr.P.C. but the same has not been followed and an acquittal appeal has been preferred against the impugned judgment passed by learned trial Court in a complaint case filed under Section 3(2) of Illegal Dispossession Act, 2005. Even otherwise if this court allows the appellant at this stage to file an application for special leave to appeal as required by section 417 (2) & (3) the same would be time barred and not maintainable as the impugned judgment of acquittal was passed on 16.03.2021 and application is to be filed within 60 days of the acquittal judgment.

8. In view of the above, the acquittal appeal filed by the appellant without seeking special leave to appeal is not maintainable and cannot be entertained. Resultantly, instant Cr. Acquittal Appeal is dismissed being not maintainable.

JUDGE