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

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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