MUHAMMAD UMAR vs UMAR and 3 others

1. ' ARSHAD NOOR KHAN, J.--- By this criminal acquittal appeal, the appellant has challenged the acquittal of the respondents in Criminal Case No,75 of 2005 State v. Aijaz Ali and others passed by the learned 2nd Civil Judge and Judicial Magistrate Pano Akil vide judgment dated 19-12-2006.

2. ' Case of the prosecution as per F.I.R. Is that on 11-7-2005 complainant Muhammad Umar, his cousin Rahab Ali and nephew Arbelo were busy in work at their lands situated near Village Jaro Kalhoro. At about 0500 hours respondents Aijaz Ali, Abdul Majeed, Umar, Badar, Anwar and Muhammad Ali all by caste Kalhora duly armed with guns and hatchets reached there and in presence of the complainant respondent Aijaz sprinkled patrol on the matting of straw and wood while respondent Anwaruddin flashed the stick of match and thrown on matting of straw and wood, with the -result the matting of straw 5000 in number were damaged and some wood valuing at Rs,85,000 turned into a heap of ash. Due to fear the complainant did not challenge the respondents who after setting the matting of straw on fire, made their escape good. The complainant tried to obtain private. Faisla but did not succeed therefore, he lodged the F.I.R. After delay of 15 days. After registration of the F.I.R. The present respondents were arrested and after usual investigation challan against them was submitted in Court to stand trial. After compliance of section 241-A, Cr.P.C. Charge was framed against the respondents and after framing the charge, prosecution examined P. W.1 complainant Muhammad Umar at Exh.8, who produced F.I.R. At Exh.8/A, P.W.2 H.C. Taj Muhammad Hidayat Ali Chachar at Exh.9, P.W.3 Arbelo at Exh.10, P.W.4 Amir Bux at Exh.11 who produced memo. Of scene at Exh.11/A, P.W.5 SIP Hidayatullah at Exh.12 and P.W.6 Rahab Kalhoro at Exh.13 whereafter learned P.1 for state closed the side of prosecution vide statement dated 17-7-2006 at Exh.14.

3. ' After recording the statements of the respondents under section 342, Cr.P.C. And after hearing the parties the learned trial Court acquitted the respondents under section 245(1), Cr.P.C., hence this appeal.

4. ' I have heard Mr. Ghulam Sarwar Korai learned Advocate for appellant and Mr. Liaquat Ali Shar learned Additional Advocate-General for the State.

5. ' Learned counsel for the appellant vehemently contended that there is an admitted enmity between the parties based on which the respondents set on fire matting of straw 5000 in number which were damaged as well as some wood of babul trees amounting to Rs,85,000, but the learned trial Court did not consider this aspect of the matter and that the learned trial Court has wrongly relied upon one kilogram of ash of wood produced in Court by the Investigating Officer on the basis of which, the learned trial Court acquitted the respondents by extending the benefit of doubt under section 245(1), Cr.P.C. In favour of the respondents. According to learned counsel for the appellant, no material contradictions in between the evidence of prosecution witnesses and the evidence produced by the appellant are available on record, which is sufficient to connect the respondents.

6. In the present crime, as such acquittal of the respondents from the charge was much against the evidence available on the record.

7. ' Learned Additional Advocate-General while refuting the arguments advanced on behalf of the appellant has contended that the learned trial Court has taken into consideration the whole evidence available on record and there is no illegality or irregularity apparent on the face of judgment passed by learned Magistrate, which does not call for any interference by this Court.

8. ' I have considered the arguments advanced by the learned counsel for the parties and have gone through the material available on record.

9. The complainant has lodged F.I.R. After the delay of 15 days for which there is no plausible explanation put forward by him in his statement before learned trial Court to the extent that after incident he tried to obtain private Faisla from the Nekmards of the locality but when he failed to get Faisla from the Nekmards of the locality, he lodged the F.I.R. The said contentions inspiring no confidence particularly under the circumstances when there is admitted enmity in between the parties and that the appellant went to Nekmards of the locality to whom he had contacted for Faisla and name of Nekmard, to whom he contacted, is not disclosed in his statement before learned trial Court. Even otherwise the delay of 15 days in registration of the F.I.R. Is sufficient to hold that there is an old enmity between the parties as such false implication of the respondents cannot be ruled out and in view of the facts that the appellant in his statement before the learned trial Court has also admitted that the possession of land in question is with respondents, if, the possession of land is with the respondents then why the respondents will set on fire matting of straw 5000 in number as well as some wood of babul trees. The complainant in his statement before the learned trial Court has also stated the setting on fire, the babul trees which is execration in the statement of the complainant himself as the said fact is not mentioned in the F.I.R. Which seems to be exaggeration in the statement by complainant himself. All these circumstances show that the learned trial Court after appraisal of the whole evidence available on the record has rightly acquitted the respondents from the charge, as such the impugned judgment does not call for any interference by this Court.

10. ' For all the afore-said reasons and circumstances I do not find any merits in the appeal which is hereby dismissed in limine. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.