BASHIR AHMED vs KHALID SIBGHATULLAH & others

ORDER

Through captioned criminal acquittal appeal, the appellant Bashir Ahmed Bahar has impugned the order dated 06.06.2013, whereby respondents were acquitted by the Court of learned I-Civil Judge/J.M Ghotki, in Direct Complaint No, 182/2009, u/S. 420 and 506/2, P.P.C.

2. Relevant facts as spelled out from the instant criminal acquittal appeal are that complainant had purchased agricultural land being S. Nos, 153/1,2 (8-00) acres, 154/1,3,4 (9-37) acres, 155/10 (2- 36) acres, 156/1 (2-16), 177/1,2,3,4 (16-00) acres, 180/1, (2-03) acres and 181/1, 2,3 (8-36) acres, total (48-28) acres situated at Deh Ibrahim Mahar, Tapo Qazi Badal, Taluka Khangarh District Ghotki, from accused Khalid Sabghatullah Mahar in the sum of Rs,850,000/- under agreement. The complainant paid entire sale consideration thereafter accused Khalid Sabghatullah keep the complainant on false hopes thereafter he shifted to some unknown place. On 06.05.2009 complainant received spy information that all the accused persons had come at village Ali Mahar, on such information the complainant along with his brother and relatives went there and saw that all the accused persons were coming on motorcycle, on seeing him the accused persons stopped them motorcycle and the complainant demanded "Khatta" of the land, on which all the accused persons annoyed upon the complainant and drove out the pistols from the folder of shalwars and pointed upon the complainant and issued threats of murder if he will again demand the khatta from them, due to fear of weapons the complainant silent returned back to his village. Thereafter the complainant filed the above direct complaint before the trial Court.

3. Learned counsel for the appellant contended that the impugned order is contrary to the law which has been passed without recording any evidence. He has submitted that the opinion of the police or the documents cannot be used as evidence to accept the application u/S. 265-K or 249- A, Cr.P.C. He further submits that when trial Court decides the application u/S. 249-A, Cr.P.C. or 265- K, Cr.P.C. the trial Court will given equal opportunity to the complainant, accused persons as well as state an 4 after hearing the complainant, accused persons and State then the application may be decided on merits but in this case the trial Court had not heard the complainant as well as State but only heard the counsel of Respondents No, 1 and 2 on the basis of departmental certificates, the trial Court acquitted the accused.

4. Learned counsel for the respondents submits that respondents are innocent and falsely have been implicated in this case by the complainant party due to usurp their agricultural land situated in deh Ibraheem Mahar tapo Qazi Badal Taluka Khangrah. He submits that there was no any sale transaction and the sale agreement has been managed by the complainant. He further submits that in the direct complainant ingredients of Section 420, P.P.C. were missing and there was nothing on record to establish the alleged cheating. He further submits that Section 506(2), P.P.C. requires strong evidence at the trial but at that time both the alleged eye-witnesses shown by the complainant were his close relatives and one of them was his real brother. He further submits that one respondent is working as Engineer in NLC, one is working in Pakistan Army and one was working as Deputy Commissioner. Their duty certificates showed that on the alleged date of incident they were performing their official duties much away from the alleged place of incident, hence there was no probability of respondents being, convict under the charge, hence the trial Court rightly acquitted the accused and dismissed the direct complaint. He also submits that the appellant/complainant has also filed civil suit against the respondents which is also pending before Court of law.

5. On the other hand, learned A.P.G has supported the arguments of learned counsel for the respondents and submits that the impugned order is according to law, well-reasoned and speaking one, which does not call for interference by this Court.

6. Heard learned counsel for the appellant, learned counsel for respondents as well as learned A.P.G for the State and gone through the available record meticulously.

7. For the sake of convenience, relevant findings of the. trial Court are reproduced as under: "From the perusal of record, it appears that on the day of incident both applicants/accused were present at their duties such certificate issued by authorities viz. Project Manager NLC Engrs. Road Project Dera Ghazi Khan and Major for Commanding Officer G.H.Q Rawalpindi, under these circumstances, charge even if framed against the applicants/accused would be groundless and there would be no likelihood of any plausible conviction of the present applicants/ accused even if case against them proceeds further which would be a useless exercise without logic as accused becomes entitled for quick relief when there is no liability against them."

8. Learned counsel for the appellant has not been able to point out any error, illegality, mis-reading or non-reading in the impugned judgment, which is based on cogent reasons. Even otherwise, the private respondents were acquitted by the trial Court after facing the agonies and ordeal of a protracted trial and it is settled principle of law that they would earn the presumption of double innocence, which could not be disturbed by the appellate Court, unless, it was established through cogent and tangible evidence available on record that such acquittal was fanciful, erroneous, or had resulted into grave miscarriage of justice. While saying so, I am fortified by case-law reported as The State through A.G, ANWFP V. Mehmood Khan and others (2007 SCM R 1390), wherein Hon'ble Supreme Court of Pakistan has held as under: "Be that as it may, learned counsel has not been able to point out if the reasons recorded for acquittal of respondents were fanciful, artificial and conjectural warranting any interference by this Court in the exercise of constitutional jurisdiction. It may also be pertinent to point out that ordinarily an order of acquittal doubles the initial presumption of innocence of an accused which would be stronger in the case of verdict of acquittal recorded by a Court of Record.

9. It is strange to mentioned here that the Respondent No,

1. Khalid Sibghatullah is Engineer in NLC.

Respondent No, 2 Wajid Sibghatullah is working in Army as Lieutenant Colonel while the Respondent No, 3 Javed Sibghatullah at that time was working as Deputy Commissioner, how it is possible that all three persons came on motorcycle and the complainant meet them and they drove out the pistols from the folder of shalwars and pointed upon the complainant and issued threats of murder if he will again demand the khatta from them. The complainant has also stated that he purchased 48.28 acres of agricultural land from the respondents in the sale consideration of Rs,850,000/- which is also unbelievable as it is very low rate.

10.In view of above and following the dicta laid down (supra), the instant criminal acquittal appeal stands dismissed.