Cr.Acq.A.No.S-37 of  2012

 

Abid Hussain…..………………………………………….. Appellant

                                                Versus

Nawab and others…….………………………………… Respondents

 

 

 

Date of hearing:                     19.02.2013

Date of Decision:                  19.02.2013

For Appellants:                      Mr. Mushtaque Ahmed Kolachi, Advocate.

For State:                               Mr. Sardar Ali Shah, A.P.G.

 

 

              J U D G M E N T  

 

 

 

SALAHUDDIN PANHWAR, J:- Appellant has assailed the judgment dated 6th August 2012 passed by the Court of 2nd Civil Judge and Judicial Magistrate Ubauro in Cr: Case No.112/2010 (Re-State Vs. Nawab and others), whereby, respondents/accused were acquitted u/s 245(i) Cr.P.C.

 

2.         The relevant facts, as set out in prosecution case are that complainant is owner of an agricultural land about 2 acres in Deh Dewari; the same land was vacant; on 30.3.2010 complainant along with his father Wahid Bux Kori and his friend Mohammad Yousif  Bhutto went to look after the land; at about 7:00 a.m, when they reached;  they saw and identified the accused (1) Nawab armed with lathi (2) Ibrahim armed with lathi (3) Yaseen (4) Akhtiar armed with guns (5) Mukhtiar (6) Hyder (7) Nazeer armed with lathi all by caste Bhutto r/o village Dado Bhutto Taluka Ubauro, were standing at the land of complainant and accused Abdul Hameed Bhutto was cultivating the land;  complainant restrained the accused from cultivation; meanwhile accused persons caused lathi blows to the complainant and also issued threats of murder to the complainant, if  again he will come at the land . The complainant returned back and narrated above facts to the Nekmards of the locality, and lodged the FIR against the accused; after usual investigation, accused persons were sent up for trial.   

 

3.         The prosecution in order to prove the charge and  substantiate the allegations,  examined  five witnesses PWs 01 Abid Hussain as complainant at Ex.11, he produced copy of FIR at Ex.11-A, P.W-02 Wahid Bux Kori as eye witnesses at Ex.12, P.W.03 Mohammad Yousif as eye witness at Ex.13. On 21.12.2011 learned DDA for the state had filed statement u/s 540 Cr.P.C. for calling of co-mashir namely Sewali S/o Ghulam Mohammad by caste Kori, same was allowed hence examined  P.W-04 Sawali as a 2nd mashir, at Ex.15, he produced mahsirnama of place of vardat at Ex.16. Thereafter learned DDA filed statement for closing the side of prosecution.

 

4.         Statements of accused u/s 342 Cr.P.C. were recorded, wherein, all accused denied the questions as put forth by the Court and further taken plea that they have been falsely involved in this case, due to enmity over the matter of landed property and produced certified true copies of judgment and decree of F.C.S.No.01/2010 (Re-Nawab Ali and other versus Ghulam Hyder and others).

 

5.         Learned counsel for appellant inter-alia contends that impugned judgment is against the safe criminal administration of justice; learned trial Judge has not examined the author of FIR, so also one investigation officer, thus impugned judgment is illegal and not maintainable under the law; learned Judge has drawn wrong inference on the evidence available; all the witnesses categorically deposed against the respondents, even then they have been acquitted; this is a fit case for remand as material witnesses were not examined, therefore, complainant was deprived from his legal right of fair trial as enshrined in Article 10-A of Constitution of Islamic Republic of Pakistan.

 

6.         Conversely the learned A.P.G, while refuting the submissions of appellant’s counsel contended that impugned judgment is according to law; this is an acquittal appeal, therefore, double presumption is attached with the impugned judgment, such cannot be set aside unless appellant proves that the impugned judgment is capricious, shocking and based on wrong inference; learned Judge has rightly acquitted the accused persons on the ground that FIR is delayed about 27 days; enmity is admitted, civil litigation was pending, allegedly complainant received injuries but he failed to produce the medical certificate.

 

7.         Having heard the arguments and meticulous examination of evidence, impugned judgment, It is pertinent to mention that learned counsel for appellant has failed to refer any piece of evidence, which could persuade to hold that the inference drawn by trial court is against the principles of appreciation of evidence. The impugned judgment of the trial court, while acquitting the respondents cannot be said to be perverse and the reasons thereof are not fanciful, capricious, speculative and artificial, thus, in absence of holding the order of acquittal as such, it cannot be interfered with. The trial court has dilated upon all the contentions, as agitated by counsel, in the judgment, in question, relevant portion whereof, is reproduced herein below for ready reference:-

 

“Further perusal of the evidence of prosecution witnesses shows that, P.W. 01 complainant has stated in his cross examination that his house is situated in his land and again say that adjacent to his land and he further stated his cross examination that there is distance in between his house and place of incident viz land about 8 K.Ms and he further admitted in his cross examination that adjacent to his land there is land of accused Nawab Ali. P.W 01 complainant further stated that he alongwith his father left their house at 6:30 a.m. on motor cycle and went to his land on the contrary. P.W 02 Wahid Bux who is father of complainant has stated in his cross examination that they went to their land from their house by foot and consumed about forty five minutes to reach at place of incident, but both the witnesses viz. P.W 01 complainant and P.W. 02 Wahid Bux have stated in their cross examination that they reached at place of incident at 7:00 a.m. On the contrary P.W. 03 who is also eye witness of the case Mohammad Yousif stated in his cross examination that he was standing at Dahar wah it was about 7:00 am where complainant and his father came there then he alongwith them went to place of incident. These above contradictory facts and non production of any proof regarding the ownership of land made the prosecution case highly doubtful.

 

Further more that P.W Muhammad Yousif Bhutto has admitted in his cross examination that it is correct that is enemical dispute over the matter of landed property in between him and accused persons since long and he further admitted that it is also correct that there are cases pending trial in between him and accused persons. The above admission of P.W. 03 Mohammad Yousif shows that there was also enemical dispute in between accused and witness Mohammad Yousif Bhutto prior to lodging of this case.

 

Moreover that at the time of statement of accused u/s 342 Cr.P.C. accused Nawab Ali produced certified copies of judgment and Decree of Civil SuitNo.01/2010 at Ex.18 A & B which also shows that the possession of land is in the custody of accused Nawab Ali since from his purchasing and the same suit was also decided in the favour of accused persons, therefore, prosecution is miserably failed to prove the criminal trespass into the land of complainant by the accused persons. “

                                   

 

8.         From bare perusal of above reasons and evidence available on record it is admitted position that FIR was lodged with the delay of 27 days; enmity was admitted over the agricultural land; civil case was adjudicated by the trial Court in favour of accused persons; though complainant alleged that he received injury but he  did not approach to the Hospital for treatment; therefore, it is suffice to say that it cannot be said that impugned judgment is capricious and shocking as it is also manifest that in the said judgment all the points discussed are in the light of evidence and contradictions available on record.

 

9.         As regard, to the plea that trial Court has not examined author of  F I R and investigation officer, it is worth to say that, the evidence of author and investigations officer, if recorded, will not strengthen the case of the prosecution, therefore on this ground, remand of case will not serve any purpose .   

 

 10.      It needs no reiteration that when an accused is acquitted from the charge by a court of competent jurisdiction, then it is settled principle of law that double presumption of innocence will remain attached with that judgment, therefore, such judgment cannot be disturbed unless it is proved that same is arbitrary, shocking, capricious, fanciful and against the settled parameters of criminal administration of justice.

 

11.       In view of above, no misreading or non reading of evidence or any material piece of evidence having the effect of varying the impugned judgment, having not been appraised in the true perspective, could be pointed out to warrant interference by this court, consequently acquittal appeal dismissed in liminee.     

 

 

 

 

                                                                                                        J U D G E

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Imran