ORDER SHEET
IN THE HIGH COURT OF SINDH,
BENCH AT SUKKUR
Cr. Acquittal Appeal No.S- 218 of 2017
Date Order with Signature of Hon’ble Judge
1. For orders on office
objection at flag ‘A’
2. For orders on MA
No.12147/2017
3. For hearing of main case
4. For orders on MA
No.12148/2017
22.03.2019
Mr. Abdul Qadir
Shaikh Advocate for the Appellant
Mr. Muhammad Rehan Khan Durrani Advocate for
private respondent
Mr.
Shafi Muhammad Mahar, DPG
for the State
>>>>>>>…<<<<<<<<
Irshad Ali Shah, J;-. The appellant/complainant
by way of instant Criminal Acquittal Appeal has impugned judgment dated
27.11.2017 passed by learned 2nd Additional Sessions Judge Sukkur,
whereby the private respondent has been acquitted of the charge for offence
punishable u/s 3 and 4 of the Illegal Dispossession Act, 2005.
2. The facts in brief necessary
for disposal of instant Criminal Acquittal Appeal are that the
appellant/complainant and the private respondent being cousins inter se, were
litigating with each other since long, on civil side and in end of such
litigation, the appellant/complainant filed the instant direct complaint under
the pretext that “SHO P.S ‘C’ Section Sukkur was ordered to get his shops
vacated and he has been handed over the possession of one shop while other shop
is still in possession of the private respondent”. The direct complaint so
filed by the appellant/complainant was brought on record and after due trial
the private respondent was acquitted of the offence for which he was charged by
learned 2nd Additional Sessions Judge Sukkur, as stated above.
3. It
is contended by learned counsel for the appellant/complainant that the second
shop has illegally and forcibly been occupied by the private respondent and
evidence so produced by the appellant/complainant before learned trial Court
was to that effect which has not been considered by learned trial Court
properly. By contending so, he sought for adequate action against the private
respondent.
4. Learned
DPG for the State and learned counsel for the private respondent have sought
for the dismissal of instant Criminal Acquittal Appeal by contending that the
impugned judgment is well reasoned.
5. I
have considered the above arguments and perused the record.
6. Admittedly,
the appellant/complainant and private respondent being cousins inter se have
been litigating since long on civil side and in end of such litigation the
instant direct complainant was filed by the appellant/complainant under the
pretext that instead of two shops he has been restored with possession of one
shop while other shop is occupied illegally by the private respondent. The case
proceeded and learned trial Court recorded the acquittal of the private
respondent by making the following justification;
“Thus it is nowhere established that number of the
shop delivered to the complainant under the order of learned Rent Controller
was two and the accused illegally and unlawfully occupied them again after such
delivery. The complainant miserably failed even to establish that the accused
occupied the only shop delivered to him by the Bailiff with the police aid. He
has therefore, failed to prove charge against the accused”
7. No
exception could be taken by this Court, against the above said finding of the
learned trial Court which is based on proper appraisal of evidence so produced
by the parties.
8. Despite above, admittedly
the acquittal of the private respondent has been 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 the
appellant/complainant after seeking special leave to appeal, which was to have
been sought for within sixty days of order of such 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 entertain. In the instant matter, no such special leave to appeal is sought
for by the appellant/complainant prior to filing of instant criminal acquittal
appeal. What to talk of its refusal or grant.
9. In
case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it has been held
by the Hon’ble Apex Court 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. 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. Judgment of acquittal
should not be interjected until the findings are perverse, arbitrary,
foolish, artificial, speculative and ridiculous.
The Court of appeal should not interfere simply for the reason that on the
reappraisal 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”.
10. No
justification is available which may call for making interference with the
impugned judgment, consequently instant Criminal Acquittal Appeal fails and it
is dismissed on both, factual as well as legal premises.
Judge
ARBROHI