ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acquittal Appeal. No.S- 102 of 2010

Application in disposed of matter

For hearing of MA No.4079/2013

21.01.2019

Mr. Mujeeb-ur-Rehman Soomro Advocate for the Appellant

Syed Sardar Ali Shah Rizvi, DPG for the State

Respondents 1 and 4 present in person

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Irshad Ali Shah, J;-. The facts in brief for passing of the instant order are that the appellant filed a complaint against the private respondents for their prosecution under section 3/4 of the Illegal Dispossession Act, 2005. It was brought on record. The private respondents joined the trial and then they after full dressed trial were acquitted by learned 1^st Additional Sessions Judge Ghotki vide judgment dated 30.10.2010, such acquittal of the private respondents was impugned by the appellant by way of preferring criminal acquittal appeal. It was dismissed by this Court for non-prosecution on 28.10.2013. The appellant now by way of instant application u/s 561-A Cr.P.C has sought for restoration of his appeal so dismissed by this Court for non-prosecution.

2. It is contended by learned counsel for the appellant that he could not attend the hearing of the criminal acquittal appeal as he was busy before another bench of this Court. By contending so, he sought for restoration of the criminal acquittal appeal for its hearing on merit. In support of his contention, he relied upon case of Zafar Ahmed vs. Shamsuddin and others (2011 MLD 961).

3. Learned DPG for the State who is assisted by respondents No.1 and 4 has sought for dismissal of instant application by contending that the appeal once dismissed for non-prosecution at katcha peshi stage could not be restored under section 561-A Cr.P.C.

4. I have considered the above arguments and perused the record.

5. The order dated 28.10.2013 whereby the criminal acquittal appeal filed by the appeal was dismissed by this Court reads as under;

“None present for the appellant. It appears that on last date i.e. 19.4.2012, 03.12.2012, 7.1.2013 and 14.3.2012 neither the appellant nor his advocate made appearance, which shows that the appellant has lost interest in this criminal acquittal appeal, which being fixed for katcha peshi is hereby dismissed for non-prosecution.”

6. The perusal of the above said order prima facie indicates that the acquittal appeal so filed by appellant was dismissed by this Court when it comes to conclusion that the appellant has failed to pursue it miserably. No exception to such order could be taken now by way of instant application. The appellant even otherwise has not been able to explain his absence on 28.10.2013 when his criminal acquittal appeal was dismissed by this Court for non-prosecution. In that situation, it would be hard to order restoration of the criminal acquittal appeal of the appellant without any justified cause.

7. Be that as it may, admittedly the acquittal of the private respondents was recorded by learned trial Court on direct complaint. As per sub-section (2) to Section 417 Cr.P.C, such acquittal was ought to have been impugned by way of filing acquittal appeal after seeking special leave to appeal, which was to have been sought for within sixty days of order of acquittal as is prescribed by sub-section (3) to Section 417 Cr.P.C. If such special leave is refused then such appeal as per sub-section (4) to Section 417 Cr.P.C, would not lie. In the instant matter, no special leave to appeal is sought for by the appellant before filing of his criminal acquittal appeal, what to talk of its refusal or grant. In that situation, no useful purpose would be served, if the instant criminal acquittal appeal is restored and then it is dismissed again on account of failure of the appellant to seek for special leave to appeal.

8. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In that case the appeal which was dismissed for non-prosecution was already admitted to regular hearing and in that context it was restored. In the instant matter the acquittal appeal of the appellant was not admitted to regular hearing but it was dismissed for non-prosecution at katcha peshi stage.

9. Instant Cr. Miscellaneous Application is dismissed accordingly.

Judge

ARBROHI