GHULAM ABBAS PIRZADO Versus SHABIR AHMED MAHESAR
KHADIM HUSSAIN M. SHAIKH, J.--- The captioned criminal acquittal appeal is directed against the judgment dated 09.04.2012, passed by the learned VIIth Additional Sessions Judge, Larkana, in Sessions Case No.803 of 2009 re-Ghulam Abbas Pirzado v. Shabeer Ahmed Mahessar, for offences under section 3 of Illegal Dispossession Act, 2005, whereby respondent No.1 Shabeer Ahmed son of Kouro Mahessar has been acquitted of the charge.
2. Briefly the facts of the case are that appellant Ghulam Abbas Pirzado filed the subject complaint under the provisions of Illegal Dispossession Act, 2005 against respondent Shabeer Ahmed Mahessar, alleging that on 02.04.2009, at 11.00 a.m. the respondent illegally occupied his house situated in Survey No.616, Deh and Tapo Larkana without lawful authority. After necessary formalities, the complaint was registered and brought on the record.
3. A formal charge was framed against the respondent, to which he pleaded 'not guilty' and claimed to be tried.
4. At the trial, complainant Ghulam Abbas examined himself as PW-1 at Ex.4, who produced copy of sale deed, copy of form No.VII and copy of complaint at Exs.4/A to 4/C respectively; and, Inspector Mushtaque Ahmed was examined as PW-2 at Ex.8, who produced letter of District and Sessions Judge, Larkana, his report and statement of witnesses Barkat Ali and Ahmed alias Baghan at Exs.8/A, to 8/D respectively. After closure of complainants evidence, statement of respondent was recorded under section 342, Cr.P.C. at Ex.10. wherein he denied the allegations and claimed his false implication. He also produced three original agreements and original bills of Sui Gas at Exs.10/A to 10/E respectively. He did not examine himself on oath, however he examined namely, Khalid Hussain, Mazhar Ali and Khuda Bux as his defence witnesses.
5. At the conclusion of trial and after hearing the parties' Counsel, the learned trial Court acquitted the respondent of the charge vide impugned judgment dated 09 04.2012.
6. Having felt aggrieved by the said judgment, the legal heirs of complainant Ghulam Abbas Pirzado have preferred the present acquittal appeal, as the complainant had allegedly expired before filing of acquittal appeal in January, 2012.
7. The learned Counsel for the appellants that the learned trial Court has not properly appreciated the evidence brought on record; that the complainant by examining himself and PW Inspector Mushtaque Ahmed, S.H.O. Police Station Akil, proved his case against the respondent beyond reasonable doubt; and, that the impugned judgment passed by the learned trial Court is illegal. He, therefore, prays that the appeal may be allowed and the respondent may be convicted.
8. Learned Deputy Prosecutor General supported the impugned judgment and contended that the learned trial Court after evaluating the evidence and other material brought on record, has acquitted the respondent extending him benefit of doubt.
9. From a perusal of the record, it would be seen that complainant claimed to have been dispossessed by the respondent from the subject property in presence of witnesses Muhammad Hassan and Ahmed alias Baghan; who claimed to have purchased subject property on 24.09.2007, where after he constructed one room, kitchen and bathroom over the subject plot; on 02.04.2009, at 09.30 or 10.00 a.m. he along with PWs Muhammad Hassan and Ahmed alias Baghan was present in his house, when at about 11.00 a.m. accused Shabir along with six other unidentified persons came there and got vacated the house and took possession of the house forcibly, but the complainant has failed to examine any of the P.Ws during the trial; PW-2 S.H.O. Mushtaque Ahmed deposed that during investigation he recorded statements of persons, namely, Baghan and Barkat Ali, and has produced statements of both the said witnesses at Ex.8/C and 8/D respectively; the learned trial court has observed that Barkat Ali and Ahmed alias Baghan in their statements recorded by SHO during investigation had not stated that accused illegally or forcibly dispossessed the complainant from the house; and had stated that said house usually remained closed and after some time accused started living in the said house; manifestly the said witnesses were not ready to support the version of the complainant, therefore, they were not examined by the complainant and adverse inference that had the said witnesses been examined, they would not have supported the prosecution case, can legitimately be drawn against the appellant under Article 129(g) of Qanun-e-Shahadat Order, 1984. And thus, the complainant had failed to prove his case against the respondent/accused beyond a reasonable doubt. Consequently, the respondent/ accused was acquitted of the charge by the learned trial Court vide impugned judgment dated 09.04.2012. I have seen the impugned judgment dated 09.04.2012, passed by the learned trial Court acquitting the accused/respondent extending him benefit of doubt, on failure of the prosecution to establish its case against him beyond a reasonable doubt after evaluating the evidence brought on record. It is reiteration that after acquittal of the accused by the Court of competent jurisdiction, presumption of double innocence is attached to the acquittal judgment, which normally does not call for interference unless the acquittal judgment or order is found arbitrary, capricious, fanciful and against the record. Patently the impugned acquittal judgment is apt to the facts and circumstances of the case, which suffering from no illegality or misreading or non-reading of the evidence, does not call for any interference in exercise of jurisdiction under the provisions of section 417, Cr.P.C. Therefore, this criminal acquittal appeal is liable to be dismissed. These are the reasons of short order announced by me on 02.09.2019, whereby this criminal acquittal appeal was dismissed.
SA/G-19/Sindh Appeal dismissed.