1. ' MUHAMMAD AFZAL.SOOMRO, C.J..--- This is an Acquittal Appeal filed on 4-6-2005 on behalf of the appellant against the respondents Nos.1 and 2. Respondents No,1 and 2 were acquitted by the learned Judicial Magistrate, Karachi, South on 24th November, 2004 vide F.I.R. No,199 of 2004, under section 448/34, P.P.C., 1Kharadar Police Station Karachi, Mr. Muhammad Ishaque Farooqui P.W.2 had lodged the above F.I.R. At the above Police Station for the above offence, after the delay of one month, alleging therein that Godown Nos.3 and 4 were rented out to them. It was closed and according to him he and his staff on 16-7-2001 found it intact. However, on their second visit on 3- 8-2001 they reached at the said godown, where they alleged that respondents Nos.1 and 2 and their accomplices had forcibly dispossessed them from the godown by breaking the locks, and shifted valuables goods to other place, which could also be stolen from there. The police accordingly registered the case under section 448/34, P.P.C. And challaned the case in the Court.
2. ' Learned Judicial Magistrate on 18-1-2003 framed the charge against the respondents Nos.1 and 2 under section 448/34 P.P.C., and examined the following witnesses:--
(i) P.W.1, Muhammad Qasim Mashir, regarding memo. Of inspection of place of Wardat Exh.3-A and seizure of broken lock.
(ii) P.W.2, complainant, Muhammad Ishaque, he had lodged the above F.I.R. And produced Exhs.4-A to 4-G.
(iii) P.W.3, Hamid Jan Afridi, he is the second Mashir of the place of incident Exh.3-A.
(iv) P.W.4, Inspector, Khalil Ahmed, he had conducted the investigation in the case, and had challaned the respondents Nos.1 and 2 in the Court.
3. ' I have heard the learned counsel for the appellant, respondents Nos.1 and 2, and the States.
4. ' The learned counsel for the appellant has argued that the judgment passed by the learned trial Court is based on the misreading of the evidence and misappreciation of the evidence, which evidence has caused serious prejudice to the prosecution. The learned counsel for the appellant read statements of the all four witnesses and had argued that the appeal may be allowed and respondents Nos.1 and 2 should be convicted for an offence under section 448, P.P.C. Had referred to certain case-law i.e., 2004 YLR 1910, 2004 M LD 157, 1993 PCr.LJ 319, 1991 SCMR 2000, 2005 YLR 1872, 1996 SCM R 678 and 2004 SCM R 249.
5. ' Learned counsel for the respondents Nos.1 and 2 had pointed out that in the entire episode of the prosecution case, there is a delay of one month in lodging the F.I.R., all the three above, P.Ws. Are not the eye-witnesses of the incident to prove the ingredients of section 448 P.P.C., regarding respondents Nos.1 and 2 entering godown, unlawfully remained there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence.
6. For an offence ' under criminal law burden is upon the prosecution under Article 117 of the Qanun- e-Shahadat. The respondents Nos.1 and 2's defence or no defence is immaterial.
7. ' Learned counsel for the State had supported the judgment of the trial Court and has frankly argued tnat there is no iota of evidence against the respondents Nos.1 and 2 for their involvement in the house trespass. He further agreed that the judgment of the trial Court is legal and proper,, had discussed all the points of determination involved in the case.
8. ' I have carefully examined with caution the evidence recorded by the trial Court, it is quite clear and evident that none of the above P.Ws. Mentioned above are eye-witnesses of the incident, within the definition of section 441, P.P.C.
9. ' Definition of section 441, P.P.C.
441. Criminal Trespass.----Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimate, insult or annoy any person in possession of such property. Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimate, insult or annoy any such person, or with intent to commit an offence.
10. ' Definition of section 442 P.P.C.
442. House Trespass.---Whoever commits criminal trespass by entering into remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody or property, is said to commit house trespass.
11. Explanation.---The introduction of any part of the criminal trespasser's body is entering sufficient to constitute house trespass.
12. ' Definition of section 448, P.P.C.
448. Punishment for house trespass.----Whoever commits house trespass shall be punished with imprisonment of either description for a term which may extend to one year or with fine which may extend to three thousand rupees or with both.
13. I have gone through the contention raised by the counsel for the appellant. It is difficult to interfere with the judgment of acquittal, primarily for the reason that after the acquittal of the respondents Nos.1 and 2 earns double presumption of innocence which can only be rebutted if the judgment on the face of it appears to be perverse, arbitrary or illegal.
14. ' I do not find any discrepancy or illegality in the impugned judgment and the respthidents Nos.1 and 2 were rightly acquitted. The principles for dealing with acquittal appeals are different from appeal against conviction. The reference in this regard can be made to the case of Yar Muhammad v. The State 1992 SCM R 96 wherein their Lordships B have held as under:-- "In view of these discrepancies the learned trial Court acquitted the appellants. The High Court was hearing acquittal appeal and the principles for setting aside an order of acquittal are now well settled. Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading of miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr P.C. In exercising this jurisdiction the High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice."
15. ' Admittedly no body had occupied the godown at the time of dispossession or thereafter, no Chowkidar has been examined by the prosecution to show that on what date the appellants were dispossessed from the godown in question or by whom.
16. ' In view of the above discussions, I find no substance in this appeal which is accordingly dismissed.
17. Surety stands discharged.