IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Crl.Acquittal Appeal No.S-02 of 2017

 

 

Appellant/Complainant

:

Abu Bakar s/o Muhammad Sadique

Through Mr.Ashique Illahi Sundrani, Advocate.

 

Respondents No.1 to 5

The State

:

:

None present.

Through Mr.Aitbar Ali Bullo, D.P.G.

 

 

 

Date of hearing

:

23.01.2023

Date of decision

:

†23.01.2023

JUDGMENT

ZULFIQAR †ALI †SANGI, J;- Through instant Criminal Acquittal Appeal, the appellant/complainant has assailed the judgment dated 17.12.2016, passed by learned Additional Sessions Judge, Kashmore, in Direct Complaint No.03 of 2013 (Re. Abu Bakar Vs. Muhammad Shafique and others), for offence punishable Under Section 3/4 of Illegal Dispossession Act, 2005, whereby respondents/accused Muhammad Shafique and four others were acquitted. 

2. ††† The allegation against respondents/accused as per direct complaint filed by appellant/complainant are to the effect that the respondents/accused on point of deadly weapons illegally dispossessed appellant/complainant from his landed property bearing Survey No.1024 and 1025, area admeasuring about (06-31) acres, situated in Deh Line Purani, Taluka Kashmore.

 

3. †††† The direct complaint after going through reports from the concerned quarters was then brought on regular file and the† formal charge was framed against the respondents/accused to which they pleaded not guilty and claimed trial.

 

4.†††† To establish his claim, the appellant/complainant examined himself, his witness Sajid Ali, C.W Abdul Hameed Mukhtiarkar and C.W ASI Mir Dost, who produced certain relevant documents in support of their statements. Thereafter, learned counsel for the complainant closed his side.

 

 

5.†††† The respondents/accused in their statements recorded in terms of Section 342 Cr.PC denied the allegations leveled against them by pleading their innocence. However, they neither examined themselves on oath nor led any evidence in their defence. †

 

6.      The learned trial Court on evaluation of the material and hearing counsel for parties and assessment of the evidence acquitted respondents/accused by way of impugned judgment as discussed above.

7.      Per learned counsel for the appellant/complainant that learned trial Court has passed the judgment in violation of law and there was sufficient material on record to convict the respondents/accused but learned trial Court acquitted them on flimsy grounds; that the evidence of complainant was corroborated by his witness and that no major contradiction was noticed in their evidence; therefore, the acquittal of the respondents/accused by way of impugned judgment requires interference by this Court and the same may be set aside. In support of his contentions, he relied upon case of Shahabuddin Vs. The State (PLD 2010 Supreme Court-725) and Jalal and others Vs.† Kapri Khan and another (SBLR 2009 SIndh-20).

8.††††† On the other hand, learned D.P.G has supported the impugned judgment and prayed for dismissal of the instant criminal acquittal appeal, whereas counsel for respondents No.1 to 5 called absent and was stated to be out of station.

9.     Heard learned counsel for appellant/complainant, learned D.P.G for the State and perused the material made available on record.

10.  † The perusal of record reflects that the complainant and his witness tried to support the case but when their evidence scrutinized thoroughly, was found coupled with material infirmities. The broad features involved in the present matter are that the appellant/complainant in his direct complaint filed before learned trial Court has stated that on 15th March 2011 at about 10.00 A.M, the respondents/accused being armed with guns on two tractors, trollies and thresher came over his land and forcibly encroached upon his land, dispossessed him in presence of PWs Bashir Ahmed and Sajid Ali and other family members and by taking law into their hands illegally started constructing houses/landhis thereby ousting the complainant from his land and started to thresh the wheat crop kept in Dera and gave threats of murder but his version is in conflict with his own statement/evidence recorded before learned trial Court wherein he deposed that on 15.03.2011, accused shown in complaint had dispossessed him from his land forcibly, it was 10.00 A.M, his nephew Bashir Ahmed and Sajid Ali were also with him at that time, accused drove him and his witnesses from the land and then taken away his wheat crop from the land, whereas, his own witness namely Sajid Ali also belied his version by deposing that in the year 2011, he alongwith complainant and Bashir Ahmed were present in disputed land when accused had occupied the said land forcibly. Further, according to complainantís son/witness namely Sajid Ali, he born in village Hashim Khan Khoso at line Purani Kashmore and they still reside in same village but his version is contradicted by the statement of C.W Abdul Hameed, Mukhtiarkar Kashmore who in his evidence deposed that complainant Abu Bakar was not resident of Deh Line Purani. Furthermore, neither Mukhtiarkar Kashmore nor ASI Mir Dost in their evidence deposed that accused have occupied the land of complainant forcibly or illegally but on the contrary Mukhtiarkar Kashmore deposed that accused are residing at this land for last 40 years so also report of SHO shows that the houses of accused are situated there. Moreover, at trial, the complainant produced pass book alongwith application u/s.540 Cr.PC and from the perusal of pass book it was mentioned at Page No.6 that the land was mortgaged by complainant in the year 2004 with bank without possession which shows that the land in dispute was not in possession of complainant at the time of mortgaging his land with Zarai Tarqiati Bank Kashmore and from the perusal of evidence and reports of Mukhtiarkar and ASI Mir Dost, the house of accused are situated at land and they were residing there before promulgation of this Act. Over and above this, one of eye witness namely Bashir Ahmed was not examined by the complainant for no obvious reason, the inference drawn here would be that he might not have supported the case of complainant.†

11. † †Witness Sajid Ali in his evidence has not deposed the date and time of such dispossession. Moreover, the facts as mentioned in the complaint have not been deposed by complainant in his evidence. It is also transpired from the evidence of complainant that accused had paid Rs.200,000/- and then not paid him the remaining amount of Rs.400,000/-, result thereof, he returned the amount received by him to the accused persons. All these facts create very serious doubt in the case and the learned trial Court has rightly considered such fact in acquitting the accused.

12.††† It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Honourable Supreme Court in case of State Versus Abdul Khaliq and others (PLD 2011 SC 554), wherein the Honíble Supreme Court has held as under;-

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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. It has been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.

 

12.    Based upon the above discussion, I am of the humble view that the learned trial Court has committed no illegality or irregularity while recording acquittal of the respondents/accused by way of impugned judgment which even otherwise does not call for any interference by this by way of instant Criminal Acquittal Appeal, the same fails and is dismissed together with application U/S.417 (2) Cr.PC.

 

†††† JUDGE

 

†††††††† †.