IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Criminal Acquittal Appeal No.S-78 of 2017

Appellant/Complainant :      Malik Dino s/o Bakhshal Buriro

Through Mr.Imdad Ali Mashori, Advocate

Respondents                   :       Zulfiqar Ali s/o Muhammad Mureed Sangi

Through Syed Tahir Abbas Shah,

Advocate for private respondent

                                                The State through Mr.Sharafuddin Kanhar,

A.P.G

Date of hearing               :       04.10.2018          

Date of decision              :       04.10.2018                   

JUDGMENT

IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant criminal acquittal appeal has impugned judgment dated 29.11.2017 passed by learned 6^th Additional Sessions Judge, Larkana, whereby the private respondent was acquitted of the charge, for an offence punishable u/s. 3/4 of illegal dispossession Act, 2005.

2.                The facts in brief necessary for disposal of instant appeal are that; as per the appellant/complainant, he purchased plots No.18 and 19, measuring to be 2985 square feet, out of Survey No.56 of Deh Waleed, Tapo Dodai, Taluka Larkana, and then sold an area of 1485 square feet to Tanveer Ahmed, while remaining area of 1500 square feet as per him is occupied by the private respondent. By pleading so, he filed the instant direct complaint for prosecution of private respondent under section 3/4 Illegal Dispossession Act, which after usual enquiry was brought on record by learned trial Court.

3.                At trial, the appellant/complainant examined him, PWs Deedar Ali and Shahid Hussain and then closed the side.

4.                The private respondent in his statement recorded u/s.342 Cr.PC, denied the allegation so leveled against him by the appellant/complainant by pleading innocence and to prove his innocence he produced certain documents. He did not examine any one in his defence or himself on oath.

5.                On evaluation of evidence, so produced by the appellant/complainant, the learned trial Court acquitted the private respondent of the charge by way of impugned judgment.

6.                It is contended by learned counsel of the appellant/complainant that the learned trial Court has recorded acquittal of the private respondent without lawful justification. By contending so, he sought for conviction for the private respondent. In support of his contention, he relied upon cases of Muhammad Bakhsh vs. Additional Sessions Judge and others (2010 PCr.LJ-268), 2). Shahabuddin Vs. The State(2010 PCr.LJ-422), 3). Muhammad Akram and others Vs. Muhammad Yousaf and another (2009 SCMR-1066), 4). Rahim Tahir Vs. Ahmed Jan and others (PLD 2007 Supreme Court-423), 5). Iftikhar Ahmad Vs. Zulfiqar Ali and others (PLD 2008 Lahore-59), and 6). Mumtaz Hussain Vs. Dr.Nasir Khan and others (2010 SCMR-1254).

7.                Learned A.P.G and learned counsel for the private respondent have sought for dismissal of the instant criminal acquittal by supporting the impugned judgment.

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

9.                The complaint was brought on record, on the basis of reports of Mukhtiarkar Revenue, Taluka Larkana and SHO P.S Waleed, Larkana. Significantly, none of them was examined by the complainant at trial. As such, no much reliance could be placed upon the said reports, in absence of evidence of their authors. If it is believed that the reports so issued by Mukhtiarkar Revenue Taluka Larkana and SHO P.S Waleed, Larkana, are carrying with it the presumption of correctness, even then those are not enough to make the private respondent guilty for the alleged offence, simply for the reason that those reports are making disclosure only to the extent that the appellant/complainant is owner of the above said plots while private respondent and others are trying to take possession whereof by force. There is nothing in the said reports, which may suggest that the appellant/complainant was actually dispossessed from the above said plots by the private respondent or anyone else. It was admitted by the appellant/complainant at trial that Irshad Ahmed Sangi, the brother of private respondent is also having a registered sale deed but it does not show the number of plot. By making such admission, a doubt was created by the appellant/complainant himself with regard to identity/demarcation of the boundary walls of plot owned by him and the private respondent through his brother Irshad Ali. In that situation, the appellant/complainant was under obligation to have examined Asghar Ali, the previous owner of the plots or Tanveer Ahmed, the subsequent purchaser of the plot to the extent of 1485 square feet. Their non-examination without any lawful justification could not be lost sight of. In these circumstances, learned trial Court  was right to record acquittal of the private respondent by making an observation that the controversy with regard to demarcation of the property cannot be decided under criminal proceedings.

10.              In none of the case law, so relied upon by learned counsel for the appellant/complainant, the acquittal of the accused after full dress trial was questioned, as such the same being on different facts and circumstances, is of no use to the case of appellant/complainant.

11.              In case of State and others vs. Abdul Khaliq and others     (PLD 2011 SC-554), it is held by the Hon’ble 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”.

12.              Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Court in arbitrary or cursory manner, which may call for interference.  

13.              In view of facts and reasons discussed above, the instant Criminal Acquittal appeal fails and it is dismissed accordingly.

                                                                                                J U D G E

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