MUHAMMAD QASIM Versus MUHAMMAD KHAN
ORDER
FAHIM AHMED SIDDIQUI, J.- --Through instant criminal acquittal appeal, the appellant has impugned the judgment dated 02.04.2016, passed by the learned Civil Judge and Judicial Magistrate-III, Tando Allahyar in Criminal Case No.58 of 2016 [Old Case No.164 of 2015], arising out of FIR No.27 / 2012, lodged by appellant under sections 420, 447, 468, P.P.C. at Police Station Nasarpur, whereby accused/respondent No.1 was acquitted.
2. Allegations against the respondent No.1 are that during the years 1967 to 1985, by means of cheating with complainant Qasim dishonestly Committed forgery for 11.20 acres in survey Nos. 246 and 247, situated in deh Bhanoki, Taluka Nasarpur, District Tando Allahyar of complainant and his brother Nooral, showing himself to be owner by himself transferred the said land and further committed criminal trespass.
3. At the trial, learned trial Court after supplying police papers, framed charge against respondent No.1 and recorded his plea, who did not plead guilty and claimed for trial. The prosecution has examined as many as six witnesses. PW-01 complainant Muhammad Qasim was examined at Ex.4, who produced Photostat copy order in Miscellaneous Application No.444/2010 at Ex.4/A, FIR at Ex.4/B, Fresh Extract at Ex.4/C, Photostat copies of manipulated entry at Ex.4/D, khatta mutated in the name of complainant at Ex.4/E, CTC of judgment in FC Suit No.215/1985 dated 06.04.1998 at Ex.4/F, CTC of Judgment dated 03.06.2005 in C.A. No.03/2000 by this Court at Ex:4/G, CTC of order dated 15.08.2007 at Ex:4/H, Photostat copy of Judgment and Decree after remand in FC Suit No.215/1985 dated 30.04.1999 at Ex:4/I and Photostat copy of order dated 11.06.2013 at Ex.4/J. PW-02 Mohammad Hanif was examined at Ex.6, who produced attested photocopy of khata No.167 at Ex.6/ A, attested copy of entry No.250 at Ex.6/B, entry No.258 dated 10.11.1998 at Ex:6/C, report No.418 dated 04.08.2009 at Ex:6/D, PW-03 Bashir Ahmed at Ex:07, PW-04 Muhammad Hashim at Ex:08, who produced memo of place of incident at Ex:08/ A, PW-05 Muhammad Ismail at Ex:09 and PW-06 Maqool Ahmed Kaka at Ex:10, who produced letter issued by SHO at Ex:10/A. Thereafter prosecution side was closed vide Ex:11 and statement of accused under section 342, Cr.P.C. was recorded, who claimed his innocence, however, neither examined himself on oath nor led defense witnesses in support of his claim.
4. After observing all formalities and hearing the parties, the learned trial Court acquitted the respondent No.1/ accused under section 245[ii], Cr.P.C. through impugned judgment.
5. The complainant being aggrieved and dissatisfied with the acquittal of respondent No.1 has preferred instant criminal acquittal appeal on the ground that the impugned judgment is illegal, unwarranted and not sustainable under the law and as a result of non-appreciation of oral as well documentary evidence by the learned trial Court though the prosecution has adduced corroborative evidence. The complainant prayed for setting aside the impugned judgment and conviction to the respondent No.1/accused Muhammad Khan
6. The learned counsel for the appellant submits that the trial Court has not considered the real facts. According to him, the accused/respondent No. 1 is responsible for manipulation and forgery as he was employee of revenue department as tapedar and in that capacity he had manipulated and placed for entries and thereafter forcibly occupied the garden measuring 11.0 acres belonging to appellant. He submits that while deciding Civil Revision No. 69/2010 and Civil Revision No. 260/2010, this Court has already observed that there was an interpolation in the revenue record, which according to learned counsel for the appellant is done by the respondent No. 1. The learned counsel for the appellant submits that as this Court has already observed about interpolation; therefore, the trial Court cannot give a contradictory verdict. He submits that the impugned judgement be set aside and the respondent No. 1 be punished accordingly.
7. On the other hand, they learned APG supports the impugned judgment. He submits that during trial it could not be established that the respondent No. 1 is responsible for the alleged interpolation. He points out that there are some critical contradictions due to which the trial Court obliged to give its verdict in favour of the accused/respondent No. 1.
8. I have heard the arguments and have gone through the relevant record. Through the instant acquittal appeal, the appellant has questioned the acquittal judgement in favour of respondent No.1/ accused. The greater emphasise of the learned counsel for the appellant is that since in a consolidated judgment of two different civil revisions pertaining to the same property, this Court has already passed a verdict in respect of a dubious entry in the revenue record, which, according to him, is declared as manipulated and forged one. Per him, a Criminal Court cannot go beyond the verdict of this Court already passed in the Civil Revision Applications referred above. In this respect, my observation is that an obitor dictum of this Court, in a civil case, is not binding upon a Criminal Court of original jurisdiction in respect of any case pending before it. It is settled law that every criminal case will proceed on its own footing. If some observation has been given by this Court, it cannot be amounted to evidence in respect of a criminal case proceeded before a lower forum. I have gone through the judgement passed in Revision Applications Nos. 69 and 260 of 2010, in which it is held that there is interpolation in the record but the respondent No. 1 (respondent No.4 in the Revision Applications) is not directly made responsible for placing such interpolated entries in the record.
9. As far as, merits of the case are concerned, the learned counsel for the appellant could not point out any misreading or non-reading of the available evidence. Contrary to this, the learned APG has rightly pointed out that there are contradictions, which ultimately goes in favour of the accused. It is noteworthy that in judgment of this Court in Civil Revision Applications, the area of the land is mentioned as 16.6 Acres but in FIR, the area of land is mentioned by the complainant/appellant as 11.0 Acres. It is also worth mentioning that in the report of Mukhtiarkar (Revenue), Taluka Matiari, furnished to the Senior Civil Judge, the area of land is mentioned as 11.30 Acres. The learned trial Judge has pointed out some other material contradictions in his judgment, which are sufficient to declare that the prosecution could not establish the case against the respondent No. 1 beyond reasonable doubt. In these circumstances, I am of the view that only this fact is not sufficient to convict the appellant that at the time of such interpolation in the record, the respondent No.1/accused was posted as TAPEDAR in Tando Allahyar. I am of the opinion that the quality and standard of evidence is lacking, which is required to establish a criminal case for justifying conviction and sentence. Hence, I am of the view that the instant criminal acquittal appeal is not meritorious, as such, the same is dismissed.
JK/M-103/Sindh Appeal dismissed.