ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Acquittal Appeal No.S-03 of 2015.

Date of hearing

Order with signature of Judge

For hearing of case.

17.12.2018.

                        Mr.Ali Nawaz Ghanghro, Advocate for the applicant.                                Mr.Ali Anwar Kandhro, A.P.G for the State.

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                        The appellant/complainant by way of instant criminal acquittal appeal has impugned judgment dated 06.01.2015, passed by learned 2^nd Additional Sessions Judge, Shikarpur, whereby he has acquitted the private respondents of the charge for an offence punishable u/s 3 & 4 of Illegal Dispossession Act, 2005.

                        The facts in brief necessary for disposal of instant criminal acquittal appeal are that as per the appellant/complainant, the private respondents in furtherance of their common intention have occupied his landed property (as is detailed in his complaint) by force, for that he filed a direct complaint under the provision of Illegal Dispossession Act, 2005, it was brought on record after due enquiry.

                        At trial, the private respondents did not plead guilty to the charge, and the appellant/complainant to prove it examined himself at Exh.11, PW-02 Khawand Dino at Exh.12 and then closed the side.

                        The private respondents in their statements recorded u/s 342 Cr.PC denied the allegation leveled against them by the appellant/complainant by pleading innocence. They did not examine anyone in their defence or themselves on oath in disproof of the prosecution’s allegation.

                        On conclusion of the trial, the learned trial Court acquitted the private respondents of the offence by making the following observation;

“The report of Mukhtiarkar reveals that accused Noor Muhammad is in possession of five acres land and accused Gulab Khoso and others are in possession of five acres land. The Mukhtiarkar has not reported whether accused are in possession of land being hari or being illegal encroacher. Even the complainant himself not deposed in his deposition that how much area and survey numbers of the land in question are in illegal possession of accused persons. In this respect the witness Khanwand Dino has deposed in his cross examination that he do not know which survey numbers are in illegal occupation of the accused persons. From the evidence of complainant as well as his witness it appears that the complainant has himself has not shown that which survey number is in illegal occupation of the accused persons. It is also admitted by the complainant and his witnesses that the accused persons are not land grabbers or land encroachers and they have not dispossessed, grabbed, controlled or occupied and any other land of any persons which constitute that the accused persons are habitual land grabbers or land occupier of the land”.

                        On being asked whether the instant criminal acquittal appeal which is outcome of a direct complaint could be proceeded with without special leave to appeal, which is necessary in terms of sub-section(2) to Section 417 Cr.PC?     The learned counsel for the appellant/complainant was fair enough to say that special leave to appeal is necessary to proceed with the criminal acquittal appeal whereby the acquittal on direct complaint is challenged.

                        It is contended by learned A.P.G for the State that the criminal acquittal appeal is incompetent as it has been filed without special leave to appeal. By contending so, he sought for dismissal of instant criminal acquittal appeal.

                        I have considered the above arguments and perused the record.

                        Admittedly, the order of acquittal which is challenged by way of instant criminal acquittal appeal is passed on a direct complaint. As per requirement of sub-section (2) to Section 417 Cr.PC, the acquittal recorded on a direct complaint could be challenged with special leave to appeal. As per sub-section (4) to Section 417 Cr.PC, no appeal shall lie against the order of acquittal, if special leave to appeal is refused. In the instant matter, no special leave to appeal is sought for by the appellant/complainant. What to talk of its grant. Such omission on the part of the appellant/complainant has rendered the instant criminal acquittal appeal to be incompetent and it is dismissed accordingly.

                                                                                                                            JUDGE.