IRSHAD QAISER J.---Askar Ali appellant has applied under section 417, Cr.P.0 being complainant against the order dated 28-5-2012 passed by the Judicial Magistrate under section 249-A Cr.P.C.
Acquitting the respondents in a complaint under sections 419/420/469/471, P.P.C. By complainant before Judicial Magistrate, Kohat.
2. The brief facts relating to this appeal are that complainant filed a complaint in the Court of Judicial Magistrate-III, Kohat, voicing his grievance that he is the owner of the property measuring 1 Kanal 12 Marlas bearing survey No.3912 situated in Moza Alizai Kohat on the strength of registered deed and exchange. That respondents have fraudulently maneuvered a deed dated 7-12-1996 in back date which caused irreparable loss to the complainant. That this fake deed was presented in the Civil Court on 13-3-2004 when Oath Commissioner Mir Muhammad Qureshi advocate was contacted in this respect, he denied his signature thereon and tendered an affidavit to this effect likely, its marginal witness namely Manzoor Ali also denied his signature and tendered an affidavit.
That stamp vendor Mubarak Ali and Iftikhar Ahmad are also required to be summoned., to prove the authenticity of the deed. That all the above noted facts suggest that respondents have committed an offence hence he filed complaint. After recording statement of complainant under section 200, Cr.P.C. Order for preliminary inquiry was made. On receipt of inquiry, respondents were summoned, they appeared and were formally charged to which they pleaded not guilty and claimed trial. Complainant in order to prove its case has produced P.W.1 Manzoor Ali as well as Mir Muhammad Qureshi advocate as P.W.3 whereon 4-5-2012 complainant has submitted an application for re-summoning of P.W.3 while accused had submitted. Application under section 249-A of Cr.P.C. Vide impugned order dated 28-5-2012, learned trial Court dismissed the .Application of complainant and accepted the application of accused and acquitted the accused under section 249-A, Cr.P.C.
3. Feeling aggrieved the complainant filed present appeal against acquittal under section 417, Cr.P.C. And assailed that impugned order and judgment on the ground that it is against the law and facts of the case. That trial Court has not assessed the prosecution evidence and its correct, legal and factual spectrum, which is resulted in gross miscarriage of justice. That both the witnesses supported the case of complainant but in spite of this fact the trial Court has not considered the evidence available on record and his judgment is based on non-reading and misreading of evidence: That Complainant is the owner of property measuring 1 Kanal, 12 Marlas on the strength of registered deed but the respondents have fraudulently maneuvered the back dated deed 7-12-1996 through which he was cheated and caused irreparable loss.
4. Now the question for determination is that whether complainant has been able to connect the respondents with the crime and they are liable to be convicted. It is. Settled principle of law that accused after acquittal from the criminal charges enjoys double presumption of innocence, one before the trial of the case and second after his acquittal. Thus Courts while dealing with an acquittal appeal, therefore, are bound to examine whether Court below had not ignored any evidence on record or had discarded any evidence for the reason not recognized by law. Reference is made to 2004 SCMR 249(b). Applying the above principle it is to be seen whether accused has rightly been acquitted by trial Court.
5. Perusal of the record would reveal that petitioner/complainant Askar Ali had filed a suit for decree of declaration to the effect that he is owner of land measuring 1 Kanal, 12 Marlas (present subject matter) and that the respondents have no right to occupy the same illegally and the B entries in the revenue record in the name of respondents are fake and fictitious and ineffective upon his right, which were sought to be cancelled. The respondents contested the suit and after recording the evidence the trial culminated in dismissal of suit and similarly the appeal dated 6-7- 2010 as well as the revision petition filed in the High Court vide' order dated 6-2-2012 were dismissed. During the course of civil litigation this Iqrar Nama was produced and exhibited as D.W.2/2 and this deed has been discussed by the Courts. In this respect I want to reproduce relevant portion of para 6 of the order of this Court passed by Hon'ble Mr. Justice Waqar Ahmad Seth in the Civil Revision No.1436 of 2010 which is as under:-- The Iqrar Nama/affidavit dated 7-12-1996 Exh.D.W.2/2 reveals that one Ashab Ali admitted that his father Nawab Ali has told him in his life time that his grandfather, namely, Sher Ali and Nazir Hussain Lumberdars have transferred through purchase the suit property i.e. I Kanal 12 Marlas in the name of Imran Ali, father of respondents on receiving the sale consideration. The record is also suggestive of the fact that respondent No.1 is owner of suit property, who has also purchased the share of one Haider Abbas vide mutation No.1237 dated 15-7-2003, which found support from statement of PW-1. Moreover, the ownership of the parties is established in the disputed Khasra numbers as per list of owners produced by Patwari Halqa.
6. No where in the entire civil litigation affidavit dated 7-2-1996 Exh.D.W.2/2 had been declared as forged and fictitious. It is admitted law that to determine the genuiness or otherwise of a documents civil Court is competent forum. The complainant after losing his claim in civil litigation has resorted to this criminal .Round of litigation. P.W.1 D Manzoor Ali though denied his signature on the affidavit Exh.P.W.1/2 in that respect but he had not asserted so in the civil round of litigation while Mir Muhammad Qureshi also failed to depose the genuiness or otherwise of the deed in civil suit, however, while examined as P.W.3 in the complaint case had categorically stated that he had not given any stamp paper to any body. If the said PW had not handed down any affidavit, then wherefrom the complainant procured the affidavit Exh.P.W.3/1. Moreover the issuance of stamp paper at the hands pf stamp vendor Iftikhar Khan has been verified during preliminary inquiry. Its scriber Mubarak Ali and one marginal witness Syed Akbar Hussain are reported to be dead.
7. Mir Muhammad Qureshi, Advocate was examined as P.W.3. He was duly cross examined by defence counsel. Then counsel for complainant submitted an application for re-examination of P.W.3. It is settled principle of law that re-examination of a witness is permissible in law, but, the purpose behind it should not be to fulfil the lacuna in the prosecution case. This fact has rightly been observed by trial Court and dismissed the application of complainant and acquitted the accused under section 249-A, Cr.P.C. Trial Court has rightly exercised its power because trial Magistrate under section 249-A, Cr.P.C. Had been given powers of acquitting an accused at any stage of the case if, after hearing prosecution and accused and for reasons to be recorded, he considered that charge against accused was groundless or there was no probabilities of his conviction of any offence. Reference is also made to 2004 PCr.LJ Peshawar 1068, wherein it is held:- - The use of words "at any stage" indicated the intention of legislature that such order could be passed even before recording of evidence, if the facts of the case were such that the Court was satisfied that no useful purpose would be served by prosecuting further in the matter". Reference may also be made to 2006 YLR Lahore 273, 1993 SCMR 523, PLD 1970 S.C. 173, PLD 1970 SC 158.
8. From the above noted facts it appears that the complainant failed to produce material evidence to prove his case then the trial Court while exercising its powers under section 249-A acquitted the respondents.
9. Since the order has been passed under section 249-A, Cr.P.C, therefore, learned counsel for appellant was directed to satisfactory the Court whether appeal is competent under section 417, Cr.P.C. Whether there is any distinction between the acquittal under section 245, Cr.P.C. Or under section 249-A, Cr.P.C. And also with respect to limitation as the appeal has been filed after the period prescribed under section 417, Cr.P.C. i.e. One month with regard to delay in filing appeal.
10. I have heard the learned" counsel at length. There is a remarkable difference between the two orders passed under section 245, Cr.P.0 and under section 249-A, Cr.P.C. Although under both these sections, the Court can pass the order of acquittal and if the order of acquittal is passed under section 245, Cr.P.C. Of course, appeal would be competent under section 417, Cr.P.0 as the appellate Court can upset the order of acquittal and pass the order of conviction accordingly. If the acquittal is under section 249-A, Cr.P.0 then the order cannot be challenged in appeal as the appellate Court would not be in a position to convert the finding of acquittal into conviction.
Reliance in this respect is placed on 2004 PCrLJ Karachi 1746 wherein it is held "Order passed under section 249-A, Cr.P.C. Could not be challenged in appeal as appellate Court would not be in a position to convert the finding of acquittal in to conviction because normally such orders were passed without .Recoding the full evidence of the prosecution". It is also on record that impugned Judgment and order was passed on 28-5-2012 while the present appeal under section 417, Cr.P.C was filed on 21-7-2012 after the lapse of one month and failed to file the appeal within thirty days as required under section (2A) of section 417, Cr.P.C. Appellant had not given the reason for delay of filing that belated appeal.
11. Keeping in view the above noted facts and circumstances of the case I hold that there is no force in the appeal and the same being without any substance is hereby dismissed.