IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl.Acquittal Appeal No.S-06 of 2023

Appellant/Complainant	:	Irshad Ahmed s/o Ghulam Qadir Brohi, Through Mr.Ahmed Wadho, Advocate.

Respondents No.1 to 5	:	None present.
Date of hearing	:	26.01.2023
Date of decision	:	26.01.2023

JUDGMENT

ZULFIQAR ALI SANGI, J;- Through instant Criminal Acquittal Appeal, the appellant/complainant has assailed the judgment dated 17.12.2022, passed by learned 5^th Additional Sessions Judge, Shikarpur, in a Direct Complaint No.162 of 2021 (Re. Irshad Ahmed Brohi Vs. Jahangir & four others), for offence punishable U/S.3,4 & 7 of Illegal Dispossession Act, 2005, whereby respondents/accused Jahangir and four others were acquitted.

2. The facts of the matter are already mentioned in memo of direct complaint and criminal acquittal appeal, hence the same need not to be repeated.

3. The learned trial Court after going through reports of all the concerned and hearing counsel for the parties brought the direct complaint on regular file of the Court and after supplying copies of papers to the respondents/accused framed the charge against them to which they pleaded not guilty and claimed trial.

4. To establish the accusation against respondents/accused, the complainant examined himself and his witness Israr Ahmed alias Iqrar Ahmed and then 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 and thus prayed for justice. However, none of them examined themselves on oath in disproof of the charge nor led any evidence in their defence.

6. The learned trial Court after hearing counsel for the parties and evaluation of the evidence brought on record, acquitted the 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 the 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; that the judgment passed by learned trial Court is not based on cogent reasons which requires interference by this Court and may be set aside. He thus prayed for admitting the instant criminal acquittal appeal and issuance of notice to other side.

8. Heard learned counsel for appellant/complainant and perused the material made available on the record.

9. The careful perusal of judgment reveals that the complainant tried to establish his claim as narrated by him in his direct complaint but when his evidence examined deeply was found coupled with several infirmities. In that, the complainant in his cross examination deposed that all survey numbers mentioned in complaint is his joint property alongwith other co-sharers; Survey No.174 comes into his share in lieu of partition affected in between partners; on the day of incident accused Jahangir Kakepoto was sitting in vehicle having weapon in his hand and he did not come near to him and he does not know as to whether accused Janahgir Kakepoto is feeling ill and unable to move; he admitted that he has not disclosed fact of effecting partition in between co-sharers and having Survey No.174, in lieu of private partition; he admitted that he does not mention this fact that accused Jahangir Kakepoto was sitting in vehicle having weapon in his hand; he admitted that on the day of incident he alongwith both witnesses went to his land to look after the same; he admitted that he has dispute with present accused over land in question since 2017 and that Suit No.09/2017 was filed by him against defendant Habibullah for restoration of possession of same land and he admitted that he has not mentioned this fact in complaint about filing of civil suit for recovery of possession during year 2017. Witness clarified that after year 2017 the possession of land in question was restored by defendant Habibullah to complainant and then it was again re-occupied by his sons and he admitted that he has not mentioned this fact in complaint. Further, the complainant in his complaint disclosed that he alongwith his witnesses namely Ashfaque and Iqrar Ahmed went to look after his land on 21.03.2021 at 05.00 P.M when the five accused persons came over there and dispossessed him but he and his witness namely Iqrar Ahmed deposed that complainant was available at his land when PWs Iqrar Ahmed and Ashfaque came at place of incident. From the above contradictions, it appears that the complainant has miserably failed to prove the charge against the accused beyond the shadow of reasonable doubt.

10. 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 the case of State Versus Abdul Khaliq and others (PLD 2011 SC-554), wherein the Honourable 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.

11. Having concluded above, I am of the considered 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 in limine together with listed applications.

JUDGE