IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Acquittal
Appeal No.S-40 of 2021
Appellant: Moran
Khan Gabole
Through Mr. Soomar Das. R
Parmani, Advocate
Date of
hearing: 01.11.2021.
Date of
Judgment: 10.12.2021.
JUDGMENT
Zulfiqar
Ali Sangi, J:
This Criminal Acquittal Appeal has been filed
by the Appellant against the judgment dated 16.03.2021, passed by learned Additional
Sessions Judge, Daharki, whereby Respondents No.1 to 3
have been acquitted of the charges leveled against them under Section 3(2) of
Illegal Dispossession Act, 2005.
2. Concise facts as alleged in the
complaint are that Complainant Moran Khan is owner of 50 Paisa share (01-37)
acres out of Sr. No.282 of Deh Sher
Khan Bozdar, Taluka Mirpur
Mathelo as per Revenue entry No.20 dated 11.04.2005, and complainant was put
into possession by orders of Court on 16.01.2016 and he remained in peaceful
possession till 22.04.2016. It is further alleged that on 22.04.2016 at about
10:00 a.m. complainant alongwith his son Khalid
Hussain and wife Mst. Jannat were working in the
disputed land meanwhile accused Ali Nawaz, Shahnawaz,
Dilbar alongwith (4)
unidentified persons duly armed with guns came at the land of complainant and
caused kicks and fists blows to him and forcibly dispossessed him on the show
of force from his land bearing Survey No.282, situated in Deh
Sher Khan Bozdar, Taluka Mirpur Mathelo so also collected wheat and mustered
crop put into trolley and went away. Thereafter the complainant went to P.S. Jarwar for redressal of his
grievance, but of no avail and he filed complaint under the Illegal
Dispossession Act 2005.
3. Learned counsel for the
Appellant/Complainant, at the very outset submits that the impugned judgment
passed by learned trial Court is illegal, unlawful and void; that learned trial
Court while passing the impugned judgment has not appreciated the evidence of
the Appellant/Complainant and his witnesses with regard to commission of
offence committed by the Respondents/accused; that the learned trial Court did
not consider the evidence of complainant, which was consistent with the
contents of complaint and was duly supported by the prosecution witnesses
wherein each and every respondent/accused was specifically attributed proper
role; that impugned judgment is based on presumption and assumption so also on
surmises and conjectures; that civil litigations have also been finalized in
favour of appellant/complainant and he was put in possession by executing Court
through due process; learned trial Court did not apply its judicial mind while
passing the impugned judgment; that there is no major contradictions, however
the minor discrepancies are not fatal to the case of appellant, even otherwise
the minor discrepancies should have been ignored instead of acquitting the
accused. In the last, he submits that impugned judgment passed by learned trial
Court may be set-aside and respondents may be convicted.
4. I have heard learned counsel for the
appellant and perused the record available in the file.
5. From
perusal of record, it appears that impugned judgment has been passed on a
complaint filed under Section 3(2) of Illegal Dispossession Act, 2005; however
under Section 417(2) & (3) of Cr.P.C, the aggrieved party has to present application
for special leave to appeal before the Court within 60 days and after its grant
the High Court may proceed with the acquittal appeal. For the sake of
convenience, Section 417(2) & (3) of Cr.P.C is reproduced as under:-
“(2) If
such an order of acquittal is passed in any case instituted upon complaint and
the High Court, on an application made to it by the complainant in this behalf
grants special leave to appeal from the order of acquittal the complainant may
present such an appeal to the High Court.
(3) No application under sub-section
(2) for the grant of special leave to appeal from an order of acquittal shall
be entertained by the High Court after the expiry of sixty days from the date
of that order.”
6. It is well settled
principle of interpretation law that “If
the words of the Statute are themselves clear and unambiguous, no more is
necessary to expound those words in their natural and ordinary sense, the words
themselves in such a case best declare the intentions of legislature”, as has been held by the Honourable
Supreme Court of Pakistan in the case of Mumtaz
Hussain v. Dr. Nasir Khan and others (2010 SCMR
1254).
In another
case of Ghulam Haider
and others v. Murad through Legal Representatives and
others (PLD 2012 SC 501), it
is also held by the Honourable Supreme Court of
Pakistan that:-
“Where the plain language of a statute admits
of no other interpretation then the intention of the legislature conveyed
through such language is to be given its full effect.”
7. Suffice
it to say that for assailing the impugned judgment, arising out of a complaint,
complainant has to file an application seeking special leave to appeal within
60 days of the judgment, which is mandatory requirement as per section 417 (2)
& (3) Cr.P.C. but the same has not been followed and an acquittal appeal
has been preferred against the impugned judgment passed by learned trial Court
in a complaint case filed under Section 3(2) of Illegal Dispossession Act,
2005. Even otherwise if this court allows the appellant at this stage to file an
application for special leave to appeal as required by section 417 (2) &
(3) the same would be time barred and not maintainable as the impugned judgment
of acquittal was passed on 16.03.2021 and application is to be filed within 60
days of the acquittal judgment.
8. In view of the above, the
acquittal appeal filed by the appellant without seeking special leave to appeal
is not maintainable and cannot be entertained. Resultantly, instant Cr.
Acquittal Appeal is dismissed being not maintainable.
JUDGE