Syed Shahbaz Ali Rizvi, J: - The appellant/complainant has filed this appeal against the order dated 23.01.2006 passed by the learned Magistrate Section 30, Bhakhar in connection with application under Section 249-A of the Code of Criminal Procedure, 1898 filed by the private respondents for their acquittal.
2. Brief facts of the case as disclosed by Faiz Muhammad, complainant in private complaint are that he is resident of Tibba Chanawar Darya Khan and a poor man. He had purchased land measuring 3-kanals in the area of Darya Khan by spending the savings of her life. He had constructed a room and a Chhapar over the said land where he was residing at the time of occurrence. Accused/respondent No.1 (Dr. Waheed Ullah Khan) is the richest person of Dera Ismail Khan and belongs to Nawab family whereas, other accused persons are his servants. The complainant further alleged that there was enmity between the parties as Dr. Waheed Ullah Khan wanted to usurp his 3-kanals land and for this purpose, he (Dr. Waheed Ullah Khan) had involved him (complainant) in various criminal cases in which he had gone to jail many times. He (complainant) further narrated that Dr. Waheed Ullah Khan also got him beaten through police regarding which complaint is pending adjudication. Dr. Waheed Ullah Khan got registered a false case against him (complainant) in the year 2003 in connection of which he (complainant) along with his son Ismail went to Dera Ismail Khan and after cancellation of their bail, he and his son were sent to jail. On the same day i.e. on 08.03.2003 at about 03.00 p.m, Muhammad Nawaz armed with .30 bore pistol, Haji Muhammad Bakhsh armed with hatchet, Sardar Bahadar, Rab Nawaz armed with Sotas, Haider armed with hatchet, Hakim armed with gun, Yousaf armed with Danda, Fayyaz armed with Danda and Ramzan armed with hatchet came by two cars. His wife Mst. Mariyam Bibi was present at his land. The accused persons tried to take forcible possession of land and outraged the modesty of his wife and gave her beating. On hue and cry of his (complainant's) wife, Abdul Majeed son of Ahmad and son of complainant Ghous Muhammad came there when the accused persons were giving beating to his wife. Thereafter, the accused persons, in the presence of the witnesses, set the house of the complainant on fire. The witnesses beseeched the accused persons and rescued his wife. The accused persons while giving threats to kill, after boarding on the cars fled away. The witnesses and the inhabitants of the Mohallah extinguished the fire. The roof of residential room and the door of his house along with household articles of the value of Rs.15,000/- including bedding, cots etc. were burnt and 'Chhapper' was also burnt to ashes. His (complainant's) wife tried to file application in the police station for proceedings but in vain. After his (complainant's) coming back from jail, his wife told him the incident. He moved an application to the police for registration of case. The local police submitted affirmative report on 30.08.2003 regarding the fire but directed the parties to approach the court. The police did not start proceedings because the accused persons were influential. Thereafter, he moved an application before the learned Sessions Judge, Bhakhar for registration of case which was marked to learned Senior Civil Judge, Bhakhar who directed him to file complaint. He further stated that on 08.03.2003 at 09.00 a.m, he along with his son had gone to attend the proceedings of court where Dr. Waheed Ullah Khan was present out side the court who, in their presence, asked Muhammad Nawaz to commit the alleged offence.
The motive behind the occurrence, as disclosed by the complainant, was that the accused persons wanted to take forcible possession of the land of the complainant and there is also a previous litigation between the parties.
3. The learned trial court after conducting preliminary inquiry dismissed the private complaint filed by the appellant vide order dated 18.12.2004 which was challenged by the appellant/complainant through revision petition that was allowed by the learned Addl. Sessions Judge, Bhakhar on 25.06.2005 and private respondents/accused were summoned to face the trial but they preferred to challenge the revisional through Writ Petition No.13968 of 2005 which was disposed of by this Court with the observation that the petitioners (present respondents) could file application under Section 249-A of the Code of Criminal Procedure, 1898, if so advised, which was to be decided by the learned trial court purely on merits without being influenced by the impugned order dated 25.06.2005. Consequent upon the same, the private respondents moved application under Section 249-A of the Code of Criminal Procedure, 1898 before the learned trial court and the learned trial court passed the impugned order of acquittal of the respondents on 23.01.2006. Hence, instant appeal.
4. Learned counsel for the appellant contends that the impugned order is against the law, facts and circumstances of the case; that the learned trial court did not provide opportunity to the appellant to produce his evidence and dismissed the private complaint of the appellant by accepting application under Section 249-A of the Code of Criminal Procedure, 1898; that the impugned order has been passed in haste which cannot sustain in the eye of law; that this appeal may be allowed and the matter be remanded back to the learned trial court to decide the same after recording the evidence of the parties. Learned counsel for the appellant, in support of his contentions places reliance on the case of Mst. Zulekha v. Amir and 5 others (1980 P Cr. L J 619).
5. Learned Addl. Prosecutor General supports the contentions of learned counsel for the appellant.
6. Learned counsel for the respondents vehemently opposes the contentions raised by the learned counsel for the appellant and, inter alia, contends that there is delay of more than one year in filing the private complaint; that even the first application for registration of case was moved by the appellant with the delay of about four months and twenty-three days; that there is no illegality or irregularity in the impugned order and prays for dismissal of this appeal.
7. Heard. Record perused.
8. I have observed that the complainant filed private complaint with the delay of about more than one year as the occurrence took place on 08.03.2003 while the private complaint was filed on 22.03.2004. Even the first application (Mark-D) regarding the same grievance of the appellant was moved by him to the SHO of the Police Station Darya Khan on 31.07.2003 i.e. after about four months and twenty-three days of the alleged occurrence. No plausible explanation of this delay has been furnished by the complainant in his complaint. Though in the present complaint, the appellant has maintained that on his return from jail when he was told about the occurrence by his wife and he found his house burnt, he informed the local police upon which the police furnished a report dated 30.08.2003 yet the perusal of application (Mark-D) reveals that the appellant was released from jail on bail on the next day of his arrest on 08.03.2003 which reflects that even the first report (Mark-D) was moved by the appellant in the form of application to SHO concerned after the delay of four months and twenty-three days and this delay is sufficient to doubt the probity of the prosecution story narrated by the complainant in the complaint which is even otherwise doubtful being discrepant and not trustworthy as according to Mark-D which is a document produced by the complainant himself before the learned trial court, the wife of the appellant was not subjected to any beating or torture by the private respondents but the story narrated by the appellant in the private complaint transpires that she was subjected to torture which is further negated by the fact that no medico-legal report to corroborate the stance of the complainant/appellant in the private complaint by him is available on record. Moreover, the report furnished by the local police annexed with Mark-D further reflects that due to the dispute regarding the property in issue, the learned Area Magistrate had already initiated proceedings under Section 145 of the Code of Criminal Procedure, 1898 on 26.09.2000 and till time of preparation of said report on 30.08.2003, the property in issue was not in possession of either of the parties and the proceedings under Section 145 of the Code of Criminal Procedure, 1898 were yet pending as the date of hearing of the same was fixed for 25.09.2003 which clearly shows that at the time of alleged occurrence, the property was not in possession of the appellant. Furthermore, according to the narration of complaint, Ghaus Muhammad son of the appellant/complainant witnessed the occurrence, who during the preliminary inquiry appeared as PW-5, was a grown up man of 24 years of age but he was not even subjected to torture by the private respondents nor he resisted the disgrace of his mother which is not probable and believable in cultural background of the area. In this view of the matter, this Court is of the opinion that there was no chance of conviction of private respondents even after the full dressed trial proceedings and that the learned trial court has rightly exercised its powers under Section 249-A of the Code of Criminal Procedure, 1898, which empowers the learned trial court to acquit the accused persons at any stage of the trial if it finds that the charge is groundless or there is no chance of conviction of the accused. Learned trial court has fulfilled the requirements of Section 249-A of the Code of Criminal Procedure, 1898 by hearing the prosecutor, the learned counsel for the appellant, learned counsel for the private respondents and has also given cogent reasons while recording its findings for acquittal of private respondents of the charge that requires no interference by this Court. The case law relied upon by learned counsel for the appellant is distinguishable from the facts of the instant case. Even otherwise, after the acquittal of an accused double presumption of his innocence prevails. No grave miscarriage of justice has taken place.
For what has been discussed above, I do not find any infirmity or illegality in the impugned order and the same does not call for any interference by this Court. Hence, this appeal is dismissed being devoid of merits.