1. ' AFTAB AHMED GORAR, J.---Through this Cr. Acq. Appeal appellant Khuda Bakhsh has challenged the Judgment dated 12-1-2010 passed by learned Vlth Civil Judge and Judicial Magistrate, Karachi West in Criminal Case No,36 of 2008 whereby respondents/accused have been acquitted under section 245(i), Cr.P.C.
2. ' Precisely, the facts of the case are that on 29-9-2007 at midnight time between 0200 to 0230 hours, when the son of the appellant namely Muhammad Saleem and his watchman Rahim Bakhsh were present on the land bearing Survey No,124, Deh Bund Murad, Manghopir Road, Karachi, the respondents Nos.2 to 8 along with two other unknown persons duly armed came there in two vehicles and started breaking the cement blocks of the complainant and also started loading cement bags in the vehicles which belonged to the complainant. There were 1000 blocks and 25 cement bags and when the son of the complainant and watchman resisted, the private respondents started firing and thereby stole away the cement bags and broke the cement blocks of the complainant and thereafter fled away. The said incident was intimated to the complainant who lodged the FIR. After usual investigation, challan was submitted before the concerned court.
3. ' A formal charge was framed to which the accused pleaded not guilty and claimed trial. In, support of its case, prosecution examined P . W . 1 complainant namely Khuda Bux as Ex.3, P.W.2 Muhammad Saleem i,e, complainant's son, P.W.3 Rahim Bux watchman, P.W.4 Raza Muhammad and P.W.5 S.I. Abdul Ghafoor, Investigating Officer of the case. Prosecution failed to produce the remaining witnesses and ultimately its side was closed on 12-12-2009.
4. ' Thereafter statements of accused were recorded under section 342, Cr.P.C. Wherein they stated that they are innocent and have been falsely implicated in the case by the complainant due to the fact that they restrained the complainant from digging sand (rati/bajri) from their lands. They further stated that they had already lodged FIR No,195/2007 against the complainant and as a counterblast the complainant has lodged the instant FIR.
5. ' After hearing the counsel for the parties, the learned trial court acquitted the respondents/accused vide impugned judgment, hence this Cr. Acquittal Appeal.
6. ' Learned counsel for the appellant contended that the trial court has erred on facts and in law while passing the acquittal order; that the impugned judgment has been passed in hurry and in an arbitrary manner; that the trial court has misread the statements of the prosecution witnesses who have fully corroborated the prosecution case. He further contended that the trial court has wrongly observed that the prosecution has not produced any independent eye-witness although independent eyewitnesses were examined during the trial who fully supported the prosecution case. He further contended that there is no material contradiction in the evidence of the prosecution witnesses as with the passage of time of 2/3 years it is not possible to state that exact facts. He prayed for setting aside of the acquittal order.
7. ' Conversely, learned counsel for private respondents contended that the judgment passed by the trial court is just and proper and sound reasons have been assigned for passing the impugned judgment. He further contended that there are material contradictions in the evidence of the prosecution witnesses in respect of time of lodging the FIR and time of inspection of the place of incident as well as preparation of memo of inspection and recording of evidence of the witnesses by the police. He further contended that witnesses are interested being son, guard and worker of the complainant; that there is unexplained delay in lodging of FIR. He vehemently stressed that, in fact, the instant case has been registered as a counterblast as earlier to that the respondents/accused had already lodged FIR No,195/2007 under section 430, P.P.C. Against the complainant party. He further contended that besides the said F.I.R., the respondents had also moved complaints to the revenue authorities against the appellant for illegal activities of illegally taking rati/bajri from the lands of the respondents and such fact has been stated by the respondents in their statements under section 342, Cr.P.C. According to him, the respondents had also filed civil suit against the complainant in this court. He prayed for maintaining the acquittal order passed by the trial court. In support of his contentions, he relied upon the cases reported in 1995 SCM R 127, 2007 M LD 1115, 1998 PCr.LJ 1250, 1994 PCr.LJ 1874, 1998 SCM R 25, PLD 1985 SC 11, 1995 SCM R 1345, 2009 SCM R 230, 2008 SCM R 1549, 2007 SCM R 1390 and 2008 SCM R 1285 and 329.
8. ' Learned A.P.G. While adopting the arguments advanced by the learned counsel for the respondents, supported the impugned judgment and contended that the order has been passed according to legal norms and cogent reasons have been given for acquittal of the accused.
9. ' I have heard learned counsel for the parties and have gone through the material available on the record with the assistance of the learned counsel for the parties.
10. 'It is an admitted position that before the registration of the instant case, there was a dispute pending between the parties due to taking of rati/bajri by the complainant party as alleged by the respondents and in this respect the respondents had lodged FIR No,195/2007 against the complainant under section 430, P.P.C. Prior to the lodging of the instant FIR. The respondents/accused had also filed a civil suit for recovery, against the complainant in this court.
11. Besides, there are material contradictions and admissions in the statements of the prosecution witnesses which make the case against the accused doubtful. In his examination in chief, PW Khuda Bakhsh stated, On such I lodged FIR against the accused person at police station on the same date of incident" while in his cross-examination he stated, "It is correct to suggest that I do not remember the date and month of incident." He further admitted, It is correct to suggest that I could not see the incident with my own eye." The I.O. In his examination-in-chief deposed, "On 30- 9-2007 I received information of crime at about 2030 hours." However, he admitted, "I see FIR and admit that the same has been lodged on 2100(sic). It is correct to suggest That on 29-9-2009 and before 2030 hours on 30-9-2009 I did not visit place." It is not understandable as to how and why the I.O. Received the investigation prior to lodging of FIR as, according to him, he received the investigation on 30-9-2007 at 2030 hours whereas the FIR was lodged after that on 2100 hours on the same date. Besides, it is alleged that empty bullet was secured from the place of incident but no such empty was produced before the court. Yet there is another aspect of the case i,e, most of the witnesses are either related to the complainant or are his workers, hence their evidence cannot be relied upon unless they are corroborated by independent evidence. In 1989 PCr.LJ 1213 it was held:--- "Witnesses related to deceased and inimical towards accused. Their evidence cannot be accepted unless they are corroborated by independent evidence."
12. ' In 1998 PCr.LJ 1250 it was held:-- "Absence of independent evidence requires statements of interested witnesses to be viewed with great care and caution, particularly with background of animosity."
13. ' In his cross-examination P.W. Rahim Bux has admitted that police did not get thumb impression or signature of any other person in his presence. It means second mashir signed the mashirnama at police station.
14. ' Needless to emphasize that obvious approach for dealing with the appeal against the acquittal would be different and distinguishable from that of the appeal against conviction because in the former case presumption of double innocence of the accused is attached to the order of acquittal.
15. It is well settled that the order of acquittal can only be interfered with if the same, on the face of it appears to be perverse, arbitrary, illegal, wholly illogical or unreasonable or in case the reasons assigned by the trial court for acquittal are speculative and of artificial nature or the findings are based on no evidence.
16. ' The upshot of above discussion is that Cr. Acquittal Appeal is dismissed in limine.