Criminal Miscellaneous No,1518-M of 2007 IJAZ AHMAD CHAUDHRY, J.--- This petition under section 428 read with section 561-A, Cr.P.C. Has been filed by the appellant/complainant for placing on record additional evidence in the shape of documents duly mentioned in para No,2 on behalf of the prosecution/complainant.##TE#
2. Learned counsel for the appellants contends that certain documents could not be placed on the record during the trial, which may be allowed to be placed on the record; that an application was moved to the Deputy Commission on 14-7-1993 for the verification of possession of Noor Muhammad appellant, Inquiry Officer reached the spot on 16-8-1993 and after recording the oral statements of the witnesses it was declared that the appellant was in possession of the disputed land; that similarly production of report of Challan of case F.I.R. No,74 dated 11-5-1993, registered under sections 440, 447, 148/149 P.P.C. At the same Police Station Chak Bedi, Pakpattan is necessary in which the complainant party was the accused, who were acquitted and it was observed by the learned trial Court/Ilaqa Magistrate that they were in possession of the land; that the production of these documents is necessary to reach at the just conclusion of the case and it will not prejudice the case of either party.
3. We have heard the learned counsel for the appellant, who has failed to give any reason that why the said documents were not placed on the record when the trial was in progress and the prosecution closed its evidence on 28-9-1996 whereas the requisite documents pertained to the year, 1993 and 1994, which were very much in the knowledge/ possession of the complainant party during the trial till the closure of the evidence. Even otherwise, the judgment which the appellant wanted to place on the record had been passed on 13-9-2000 is irrelevant for the purpose of decision of this appeal as finding of the learned trial Court which is the Court of learned Additional Sessions Judge could not be ignored and the finding of the learned trial Court in the said case which a Court of inferior jurisdiction cannot be relied upon. Even otherwise, the learned counsel for the appellant has failed to show any reason for placing the documents on the record as the said documents cannot improve the prosecution story. Although under section 540, Cr.P.C. The jurisdiction can be exercised if the Court comes to a definite conclusion that certain evidence is required and can be placed on the record for just decision of the case but the said evidence cannot be procured later on just to fill up the lacunas in the evidence. We do not find it a fit case for allowing the application. This application being misconceived is dismissed.##TE# Main Appeal
4. Through this appeal under section 417 (2-A), Cr.P.C., Noor Muhammad appellant has called in question the judgment dated 1-3-1997 rendered by the learned Additional Sessions Judge, Arifwala, through which all the private respondents have been acquitted of the charges under sections 302 /324/379/411/109/148/149, P.P.C. At Police Station Chakbedi District Pakpattan.##TE#
5. Brief facts of the case are that the complainant on 17-1-1993 had taken on lease 50 acres 4 Kanals and 12 Marlas land from Mohabat Khan and his sons for five years and in this respect the agreement of lease was written and according to that agreement the possession was to be given to the complainant after Rabi 1993 while 12 1/2 acres land was already on lease with the complainant and the remaining land was on lease with one Qutab and his brother.
6. According to the complainant on 11-5-1993, the complainant had taken the possession of the land from afore-said Qattab after reaping of the crop by him and on taking such possession Qattab afore-said instituted a criminal case against the complainant party under sections 440, 337, 148/149, P.P.C. It was also added in the F.I.R. That on 16-5-1993, an injunctive order was issued in favour of the complainant from the Civil Court.
7. About the occurrence it was alleged that the accused party was aggrieved that why the possession had been taken by the complainant party and why the land was taken on lease. On 21- 5-1993, at 6-00 a.m. The complainant was present in Killa No,18 Square No,48 along with Ameer, Muhammad Bashir, Nizam Din, Muhammad Yasin, Mukhtar Ahmad, Muhammad Ali, and Muhammad Yar when all of a sudden Amin, Wazir Ali, Zafar and Arif respondents armed with rifles, while Noor, Yasin, Aslam, Sabir, Arif, Muhammad Yar, Ahmad Ali, Muhammad Asghar, Bashir, Muhammad Mansha armed with .12 bore guns and Maqsood accused armed with pistol came there. Amin accused raised a Lalkara to teach a lesson to the complainant party for taking possession of the land as well as its lease and also fired with his rifle hitting Muhammad Bashir on his right shoulder while Noor accused made a fire with his gun hitting Nizam Din on his forehead and Yasin accused made a fire with his gun, which inflicted on the right hand of Nizam Din. Then Muhammad Yar made a fire with his .12 bore gun hitting Muhammad Hussain on his head while Aslam accused made a fire with his gun to Mukhtar Ahmad on his left leg. Sabir accused was alleged to have made a fire with his .12 bore gun hitting Muhammad Ali on his left hand and then Arif made fire with his gun and that hit Muhammad Ali on his left hand. Arif made fire with his gun and that hit Muhammad Yar on his head. About Muhammad Yar accused it was alleged that he caused injuries to Muhammad Yar P.W. Ahmad Ali injured Muhammad Yar with his .12 bore gun and the fire hit on his chest. Asghar alias Bhola fired with his gun which hit on the left hand of Muhammad Yar. Mansha respondent injured with his gun Muhammad Yar while the other accused remained on firing continuously and on hearing the sound of firing Faiz Ahmad and Sardar Ahmad P.Ws also attracted to the spot and they saw the occurrence. Then after arrival of the P.Ws the accused ran away with their respective weapons.
8. Muhammad Ameer, Muhammad Bashir and Nizam Din died on the spot while Muhammad Yasin, Mukhtar Ahmad, Muhammad Ali and Muhammad Yar were seriously injured and on a tractor trolley they were sent to the hospital for treatment.
9. After the usual investigation the Challan was submitted in the Court of competent jurisdiction.
Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the accused and charge was framed which was denied by them and they claimed to be tried. The trial was completed and the impugned judgment was passed. Hence, this appeal.
10. The learned counsel for the appellant contends that the prosecution had succeeded in proving the case against the accused / respondents who have been acquitted beyond any shadow of doubt; that four persons from the side of the appellant / complainant party had died and two injured P.Ws. Had supported the prosecution story; that the complainant party was not the aggressors and the accused party had not received even a single scratch; that it was proved on the record beyond any shadow of doubt that the appellant/complainant party was in possession of the said property at the time of incident; that the eyewitnesses had fully supported the prosecution story and recoveries were also effected from the possession of some of the respondents which had matched with the empties recovered from the spot according to the report of the Forensic Science Laboratory; that the prosecution had succeeded in proving the case beyond any shadow of doubt, but in spite of that the learned trial Court has acquitted the respondents on surmises and conjectures; that the judgment of acquittal being not based on solid reasons may be set aside and the respondents be convicted and sentenced in accordance with law.
11. Nobody on behalf of the respondents has entered appearance in spite of the fact that name of their learned counsel is very much figured in the daily cause list and we have no option except to decide this appeal on merit, which has already become very old.
12. Learned Deputy Prosecutor-General has also endorsed the arguments of learned counsel for the appellant.
13. We have heard the learned counsel for the parties and also perused the record with due care and caution.
14. Incident in the present case had taken place at 6-00 a.m. On 21-5-1993 and the case was registered on the same day at 7-35 a.m. At Police Station Chak Bedi District Pakpattan Sharif. It was stated by the complainant in the F.I.R. That he had entered into a lease agreement with Mohabbat Khan and his sons for taking lease of land measuring 150 acres, 4 Kanals and 12 Marlas through written agreement and land in dispute where the incident had taken place was in possession of respondent/accused party but the possession was to be handed over by the accused/respondents after Rabi crop of 1993. It was claimed by the appellant that he was also in possession of 12-1/2 acre for the last 20 years out of the said land and the remaining land was in possession of Qutab and his brothers/respondents. It is stated by the complainant/ appellant that the possession was taken on 11-5-1993 as per condition of the agreement and on the same day the case was got lodged under sections 440/437/148/149, P.P.C. But intentionally respondent Qutab etc. Had not admitted that the possession was taken by the appellant party. It was also mentioned by the appellant that on 16-5-1993, he had obtained the Stay order and said Stay was vacated. Qutab also filed application under section 151, C.P.C. And against the said order approached the learned Additional Sessions Judge. From the perusal of the contents of F.I.R. It is clear that the claim of the appellant in the F.I.R. That he had taken the possession on 11-5-1993 was not correct. It was also admitted fact that before 11-5-1995 the respondents-accused party and their brothers were in possession of the said property. From the perusal of the statements of the witnesses it has been found that the complainant party failed to prove that actually they were in possession of the land after crop Rabi, 1993 where the incident had taken place rather it has been established that the disputed land was in possession of the respondents. The learned trial Court has rightly declared that the respondents were in possession of the land and it was the appellant/complainant party, who had launched attack in order to take possession by force from the respondents and they had resisted their right of defence and as a result of the above aggression on the part of the appellant, said incident had taken place in which four persons had lost their lives and two had received fire- arm injuries.
15. After perusal of the evidence we are satisfied that the learned trial Court has come to the definite conclusion on the basis of the evidence produced by the parties during the trial that the complainant party could not succeed in establishing their possession and the respondents had a right to defend their possession over the said property and if they were not evicted in a lawful manner, they could not be evicted in an unlawful manner, who had exercised their right of self- defence. In Sardarai and another v. The State PLD 1970 SC 212, the Honourable Supreme Court of Pakistan held as under:--##TE# "In the light of the above discussion it also appears to me that a landlord is not entitled to dispossess his tenant by force. He must obtain possession of his property in due course of law. If a landlord evicts his tenant without recourse to law, the tenant is entitled to resist his possession by force against him. If a tenant is dispossessed by his landlord and he does not acquiesce with that act, he is entitled to re-enter and re-instate himself but he should not use more force that is necessary."
' Then in Muhammad Ashraf v. Faiz Ali and others PLJ 1976 SC 190, the honourable Supreme Court laid down the following principle:--- "It is well-established proposition that to maintain his existing peaceful possession of property even by use of force, if necessary, regardless of the question whether or not he had the lawful right to possess. In other words the objection of the section is not to protect title, but to maintain peace by protecting peaceful possession irrespective of title."
' This Court in a case reported as "Waryam and 3 others v. The State PLD 1975 Lah. 152, opined as under:--- "The question of title is quite apart from the question of possession. Where possession is with one party and the title with the other, the person in settled possession has the right to repel aggression.
A casual act of possession would not have the effect of interrupting possession of the rightful owner but where there are indications that a person who has no title to a particular property had been in its settled possession for a long time, the law gives him a right to protect his possession by use of necessary force. The question whether he had or had not the right of possession is immaterial."
' Again in case titled Muhammad Siddique and 2 others v. The State 1990 PCr.LJ 1867 (Lahore), a Division Bench of this Court made the following observations:- "The law on the subject is well-settled viz. a person in possession, may he be a trespasser, has a right to defend his possession even against a rightful owner."
' It has been concluded in the above-said case-law that even an illegal occupant who has been residing at the place continuously for a long period peacefully has a right of self defence and can exercise the same right for defending the possession over the said property.
15-A. As far as contention of the learned counsel for the appellant that four persons had lost their lives from the side and two had received fire-arm injuries, suffice it to say that story narrated by the appellant and the other eye-witnesses is not believable as the appellant and other eyewitnesses had mentioned the names of 17 accused persons##TE# and stated in their statements that each accused/respondent while armed with different kinds of weapons had fired in the incident which lasted in few minutes and it is strange that the witnesses had given each and every injury received by all the four deceased and two injured P.Ws. With attribution of the same to the respondents/accused, which was humanly not possible even if they had witnessed the incident.
The learned trial Court for the above reasons and other reasons which have been borne out from the record has acquitted the respondents-accused. It has been repeatedly held by the august Supreme Court of Pakistan that interference in appeal against acquittal is a rare phenomenon and even if two views could be adopted after the perusal of the evidence adduced by the parties, the view favourable to the accused/respondents is to be preferred. In the case in hand after perusal of the evidence the view adopted by the learned trial Court is found to be based on the evidence on the record.##TE#
16. It needs no reiteration that there is a marked difference between, appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction appraisal of evidence is done strictly and in the appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of evidence on record. In the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence, which amounted to miscarriage of justice. While considering the scope of section 417, Cr.P.C. It is held that in an appeal against acquittal, this G Court would not, in principle, ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. The Court would not interfere with the acquittal order merely because on re-appraisement of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. It is true that the finding of acquittal is not sacrosanct, if the reasons given by the trial Court are speculative or of artificial nature or the findings are based on no evidence or is the result of misreading or misinterpretation of evidence or the conclusion drawn as to the guilt or innocence of the accused persons, are perverse, resulting into miscarriage of justice. Same can be interfered with in appropriate cases in the light of the principles laid down by the apex Court regarding appreciation of evidence. In Yar Muhammad and 3 others v. The State 1992 SCM R 96, it was observed:-- "The High Court was hearing an acquittal appeal and the principles of 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 to 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."
' It is well-settled principle of law that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in the latter case. An order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary or foolish in nature, which are lacking in this case. Reliance is placed on Inayat Ullah Butt v.
Muhammad Javed etc. PLD 2003 SC 562.
17. In view of what has gone above it follows that the acquittal of respondents does not suffer from any illegality so as to call for our interference with the impugned judgment. According to golden principle of benefit of doubt, one substantial doubt is enough to acquit the accused. The learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favour of respondents and we see no legal justification to disturb the same. Resultantly, the appeal fails which is hereby dismissed.##TE#