' HASAN FEROZ, J.---The appellant has assailed the acquittal of the respondents under section 265- K Cr.P.C. Through impugned order dated 23-7-2011 passed by learned Additional Sessions Judge Kotri in S.C. No,47/2011 in Direct Complaint under sections 324, 395, 448, 452, 379, 109, 193, 147, 148, 149 P.P;C. And section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. Succinctly facts leading to the instant appeal are that the appellant filed direct complaint against the respondents which was brought on the file after holding preliminary Enquiry. The facts mentioned in the complaint are that applicant is owner of 250 acres land situated in Taluka and District Dadu and also co-sharer of about 100 to 130 acres in Deh Motri and about 120 acres in Deh PhuIji. The respondents were issuing threats to dispossess him from his land having an evil over the said land and such civil litigation was going on between the parties. On 1-2-2007 the respondents Nos.1 and 2 forcibly removed entire standing crop of the appellant from his land in Deh Motri and Phulji. On 22-4-2007 applicant along with Syed Imran and Akram was available at Hyder Chowk Hyderabad, from where respondents forcibly took him in the vehicle and the police officials foisted charas upon him and lodged false F.I.R. No,51/2007 at Police Station Jamshoro under section 9(c) of Control of Narcotics Substances Act, 1997 on the next day. The case was challend and was tried by learned Special Judge CNS Jamshoro where learned trial court acquitted the appellant.
3. The direct complaint was transferred to the learned Additional Sessions Judge, Kotri, where notices were issued against the respondents, out of them respondents Nos.1, 3, 7, 12 and 14 appeared while rest of the respondents were declared absconders. During proceedings of the case, respondents Nos.1, 3, 7, 12 and 14 filed applications under section 265-K Cr.P.C. On the ground that charge against the said respondents was groundless and there was no probability of their conviction.
4. Learned trial court after hearing the parties passed the impugned order and acquitted the respondents as stated above.
5. Learned counsel for the appellant contended that impugned order is against the law, facts and circumstances; learned trial court failed to consider the material available on record including the order of this court in Criminal Miscellaneous Application No,92/2009 in terms of which the appellant filed Direct Complaint; that learned trial court has failed to apply its judicious mind while passing the impugned order; that acquittal of the respondents is not based on sound reasons but on the surmises and conjectures and is liable to be set aside; that the respondents had committed offence for which there is sufficient material connecting them with commission of offence; that the respondents had also previously got the appellant implicated in false case by foisting charas upon him and such case was proved false as such the contention of the appellant regarding the incident was supported by the corroborated facts but the learned trial court ignored such facts.
Learned counsel prayed for setting aside of the impugned order.
6. On the other hand, learned counsel for the respondents as well as learned Deputy Prosecutor General Sindh opposed this appeal and contended that the learned trial court has rightly acquitted the respondents/accused and there is no illegality or irregularity in the impugned order which is based upon sound reasons.
7. I have given anxious consideration to the arguments advanced by the learned counsel for the parties and examined the record. Admittedly, civil litigation between the parties is going on due to dispute over the landed property. The complainant in his complaint stated that on the day of incident, he was forcibly taken away by the respondents from Hyder Chowk Hyderabad and was falsely implicated in Narcotics case bearing Cr.No,51/2007 of Police Station Jamshoro in which he has been acquitted. The applicant neither mentioned the specific place of Hyder Chowk which has five opening of roads from where he was allegedly taken away nor cited any witness of the place/locality. Besides, as per order of this court in Criminal Miscellaneous Application No,262 of 2010 both the parties had agreed not to register any case against each other and an arbitrator was appointed to resolve the matter between the parties. However, this has no bearing with this application.
8. In case of Munawar Shah v. Liaqat Hussain and others (2002 SCM R 713), it has been held by the honourable Supreme Court that where no ocular evidence is available connecting any of the accused with the commission of the offence alleged against them, it would not be safe to record conviction of the accused particularly when any link in the chain in the circumstantial evidence is missing. It is well settled law that ordinarily scope of appeal against acquittal of accused is considerably narrow and limited as the accused who was presumed innocent before trial on being acquitted his innocence and liberty cannot be taken unless cogent and tangible evidence exist whereas acquittal under section 265-K Cr.P.C. Is concerned, is on assessing of material that no probability of being convicted is ascertained by trial Court. On the examination of the order of acquittal as a whole credence should be accorded to the findings of the subordinate court whereby the accused had been exonerated from the charge of commission of crime. It is well established principle of law that obvious approach for dealing with the appeal against the conviction would be different from that against acquittal because presumption of double innocence of the accused is attached to the order of acquittal. From the perusal of the record, it appears that the applicant has failed to establish case against the respondents by producing tangible material.
9. The honourable Supreme Court has observed in case of Haji Amanullah v. Munir Ahmed and others (2010 SCM R 222), that appellate court would not interfere with acquittal of accused merely because on reappraisal of evidence it comes to a conclusion different from that of the court acquitting the accused, provided both the conclusion are reasonably possible. However, if the conclusion reached by the lower court was such that no reasonable person would conceivably reach the same and was impossible, then appellate court would interfere in such cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too with a view to avoid grave miscarriage of justice and for no other purpose. In the present case the impugned order does not suffer from any illegality or irregularity, therefore, same does not call for interference by this court.
9(sic) During hearing of the instant appeal, while assessing of statement under section 200 Cr.P.C.
Recorded before registration of private complaint learned counsel for the appellant referred to statement of the appellant recorded under section 200 Cr.P.C. Wherein he has stated that on 24-4- 2007 the respondent No,1 Datal Khan came at Nara Jail Hyderabad and insisted the appellant to sell his land to him. This statement of the appellant was strongly rebutted by the learned counsel for the respondent No,1, therefore, in order to prima facie assess the credence of section 200 Cr.P.C.
Statement regarding meeting of visitors with the appellant during his confinement in Nara Jail Hyderabad in Narcotics case of the relevant date was called from the Superintendent, Nara Jail Hyderabad however the plea of the appellant was negated as per record. Though this aspect would not encompass the instant appeal, however, in order to examine veracity of the statement of the appellant/ complainant, such exercise is indicative of inference of not substantiating the version/ statement made under section 200, Cr.P.C. By appellant at the initial instance.
10. In view of the above legal and factual aspects, there appears no illegality or infirmity in the impugned order of the learned trial court, which is based on proper reasons. There are no exceptional grounds for interference in the impugned order. Accordingly, instant Acquittal Appeal being devoid of merits, stands dismissed.