IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Acquittal Appeal No.S- 63 of 2017

 

 

           

Appellant/Complainant :      Zulfiqar Ali Jatoi present in person

 

 

Private respondents:                                  4 to 6 Iltaf, Mithal and Ikhlaque through

                                                            Mr. Abdul Mujeeb Shaikh, Advocate

 

The State, through  Mr.  Abdul Rehman Kolachi, Deputy Prosecutor General

                                                           

                                                           

Date of hearing               :       29.04.2019          

Date of decision             :       29.04.2019                             

 

JUDGMENT

 

IRSHAD ALI SHAH, J.- The facts in brief necessary for disposal of instant Criminal Acquittal Appeal are that as per appellant/complainant the private respondents after having formed an unlawful assembly in prosecution of their common object by making encroachment over his landed property have committed mischief by causing damage to date palm trees and then threatened him of murder, for that the present case was registered, for that they were challaned accordingly.

2.                 At trial, the private respondents were acquitted of the offence for which they were charged under section 249-A, Cr.P.C, vide order dated 20.02.2017 by learned 2nd Civil Judge and Judicial Magistrate, Rohri, such acquittal of the private respondents is impugned by the appellant/complainant before this Court by way of instant Criminal Acquittal Appeal.

3.                 It is contended by the appellant/complainant that learned trial Court has acquitted the private respondents of the charge without providing chance to the prosecution to prove its case. By contending so, he sought for remand of the matter to learned trial Court with direction to proceed with it in accordance with law.

4.                 Learned DPG for the State and learned counsel for the private respondents by supporting the impugned order have sought for dismissal of the instant criminal acquittal appeal by contending that the civil dispute between the parties over the land in question is pending adjudication before the civil Court having jurisdiction and the appellant/complainant even otherwise is not owner of the disputed land and the very appeal is time barred.

5.                In rebuttal to above, the appellant/complainant was fair enough to state that the land under dispute is owned by his wife and he is her Attorney.

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

7.                The attorney could hardly launch a criminal proceeding on behalf of actual owner. The appeal is time barred by eight days. No application for condoning such delay is filed by the applicant.  The FIR of the incident has been lodged with delay of about one month, same could not be overlooked. The civil litigation between the parties is pending adjudication before the civil Court having jurisdiction. In these circumstances, learned trial Court was right to record acquittal of the private respondents by way of impugned order, such acquittal is not calling for any interference by this Court.

8.                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”.

 9.               In view of the facts and reasons discussed above, the instant Criminal Acquittal Appeal is dismissed accordingly.

                                                                                                                                                                                                    Judge

 

ARBROHI