1. ' MALIK M. AQIL AWAN, J.---In this case F.I.R. No,39/2007 was lodged by the complainant Malik Muhammad Akram under sections 406, 420, 506-B, P.P.C. At Police Station, Bahadurabad and on the basis of such F.I.R., case was challaned before the learned VIIth Civil Judge who vide his judgment dated 18-12-2008 acquitted all the accused.
2. ' The case of the prosecution as disclosed in the F.I.R. No,39/07 is that on 21-3-2005 complainant above named submitted application before the office of TPO Gulshan-e-Iqbal bearing reference No,6665/2006 which was duly received and the contents whereof are as under:-- "That complainant purchased a Plot No,B-215 of Capital Cooperative Housing Society, measuring 400 square yards, from one Muhammad Maroof Bhasha son of Muhammad Bhasha, resident of 29 Cokin Society Bahadurabad Karachi against the total sale consideration of Rs,14,85,000 and entered into a sale agreement with accused Maroof Bhasha. Under the said agreement, the complainant purchased the above plot from Maroof Bhasha in total sale consideration of Rs,14,85,000 out of which, the complainant paid Rs,14,00,000 in cash to Maroof Bhasha in presence of Tahir Nasir and Munir Ahmed and the balance amount of Rs,85,000 was to be paid within 2 or 3 days in the office of Registrar at the time of transferring the title documents in the name of complainant and in return Maroof Bhasha had given him sale agreement and title documents of plot. Maroof Bhasha also stated in society office that NOC be issued to the complainant and now Malak Akram is the owner of property. The accused Maroof Bhasha did not honour the agreement on one pretext to other. Then on 25-2-2007 and 26-2-2007, the complainant along with Tahir Nasir and Munir Ahmed went to the house of accused Maroof Bhasha, where Altaf, Habib Imam, Maroof Bhasha, his son and some others were present. The son of Maroof Bhasha pointed a pistol towards the complainant and asked that they neither transfer the plot in question nor return the amount. He also used abusive language against the complainant and also issued threats to kill him. Thereafter the complainant approached the Police Station Bahadurabad and lodged F. I . R . "
3. ' At the trial, prosecution examined as many as five witnesses and extract of deposition of these witnesses is mentioned in the impugned judgment. In simple words, it is a case of sale/purchase between the complainant and accused persons in respect of Plot No,215-B, admeasuring 400 Sq.
4. Yds situated in Capital Cooperative Housing Society, Scheme No,33, Karachi. According to the prosecution story the total consideration of the plot in question was Rs,14,85,000 and prosecution claims to have paid Rs,14,00,000 but in cash and not through any document which can be called a negotiable instrument. The trial Court while acquitting the accused was mainly impressed by the fact that the. Investigating Officer of this case stated before him that he verified stamp paper from Assistant Superintendent Stamps, City Courts, Karachi, which was purchased by T.H. Qureshi on 3- 12-2004. Investigating Officer recorded the statement of advocate Mr. T.H. Qureshi who stated that he neither purchased the stamp paper nor there is his signature or seal on the stamp paper.
5. ' According to Investigating Officer sale agreement was attested by one Sultan Ahmed Baig, Notary Public, but there is no mention of the date of attestation. He further deposed that Sultan Ahmed Baig was not, appointed as Notary Public in the Department. He has produced such letter in support of his contention as Ex.10/A to 10/E. The person who brokered the deal in respect of plot Mr. Mustahsan Ali had already expired. The next important fact which impressed the trial Court to acquit the accused was not production of the receipt of payment of Rs,14,00,000 and the delay of two years in filing the case was also one of the consideration for acquittal. The learned trial court without looking into the technical aspects of this case, came to the conclusion that the transaction of the sale in respect of plot in question, was not proved by the complainant side.
6. ' I have heard the learned counsel for the appellant who confined his argument to the extent of reading the evidence/ deposition of two P.Ws. Viz. Munir Ahmed and P.W. Tahir Nasir. He did not argue a single point to meet the findings recorded by the trial Court particularly based on the evidence of the Investigating Officer who oftenly treated as an independent witness in the whole affair. I myself has reminded to the learned counsel the scope of acquittal appeal which is absolutely different in the standard of appreciation of evidence than the appeal against the conviction ordinarily even if the Appellate Court comes to the different view on the basis of recorded evidence, than that of trial court on appreciation of evidence, yet it is no ground for interference in the acquittal recorded by the trial court, unless some misreading or non-reading of evidence is pointed out which had resulted in grave miscarriage of justice.
7. ' In this view of the matter I uphold the findings of the trial court whereby it has concluded that complainant has failed to prove the transaction of sale in respect of the plot in question. I am very much disappointed from the approach of the trial court and so also the assistance rendered at bar to the trial court as no one has pointed out that where the allegation in a criminal case constitute a civil transaction, the initiation of criminal proceedings on such facts amounts to abuse of process of law. There is no dearth of case-law from this court where criminal cases based on the facts constituting civil transaction were quashed either under section 561-A, Cr.PC or by the trial court under section 249-A and 265-A, Cr.PC as the status of the court was. According to me this was a simple case of sale agreement in respect of the landed property viz. Plot in question and one of the parties viz. Vendee claim that he paid Rs,14,00,000 as earnest money out of the settled consideration and after payment of the same the vender resiled from honouring transaction, naturally the remedy would be to file suit for specific performance but instead unwarranted course of filing criminal claw t, adopted and right from the initiations of criminal case till its conclusion it was never noticed by trial court or any member of legal fraternity that such court amount to abuse of the process of law.