The applicant above-named, being aggrieved by judgment dated 30th June, 1977, of the learned Civil Judge and F. C. M., Tando Allahyar, in the case of Haji Noor Muhammad v. Haji Mubarak and 3 others and State by which respondents Nos. 1 to 4 were acquitted, has preferred the above Revision. Petition, on the following facts and ground.
2. That on 22nd July, 1975 complainant Haji Noor Muhammad lodged report at Police Station, Tando Allahyar, which was recorded in station diary, stating therein, that the complainant is a zamindar and also holder in Deh Tando Allahyar. Survey No. 800/2, 3 are on lease with complainant since 1945. The lease was given to the complainant by one Hindu evacuee for 5 years i. e. Upto 1950, thereafter, the Hindu migrated to India and the land was declared as evacuee and .Was allotted to Urjan Muhajir, who leased out the same land to complainant in 1958 and since then, the complainant is in possession of the above-said land. The other claimant namely Ghau Khan also got the land allotted in his name and sold away the same to Haji Mubarak respondent No. 1 in this case and such Civil Suit was filed by complainant in Civil Court, Tando Allahyar and Injunction order was passed against the respondent/defendant. The respondent/defendant in this case preferred appeal against the injunction order passed in favour of applicant/complainant before District Court, which is still pending. On the above said date the complainant and his haris were present in the S, N. O. 800/2 & 3 and were ploughing the lands at about 8 p. m. Time, the tractor of the complainant entangled, therefore, the complainant directed his haris Kamoo to bring some haris for taking out the tractor, who brought Ratoo, Lalu and Khan Muhammad haris of the complainant for taking out the tractor. As they took out the tractor the respondents came there and asked the complainant, why they had ploughed the disputed land and thereafter, Haji Mubarak instigated the other respondents and asked them not to spare the complainant who, on instigation of Haji Mubarak attacked the complainant and P. Ws. Ratoo and Lalu and gave lathi injuries to complainant and P. W. After receiving lathi injuries complainant and P. Ws. Lalu and Ratoo fell down. P. W. Khan Muhammad intervened and asked the respondents not to fight.
Thereafter, respondents went away abusing the complainant, The complainant came to P. S. Tando Allahyar leaving P. Ws. Injured Lain and Ratoo at the wardat, for lodging report. The report of the complainant was recorded in station diary and the complainant was referred to Medical Officer Tando Allahyar, for treatment and certificate.
3. The prosecution in support of their case had examined complainant Noor Muhammad as Exh. 3, P. W. Ratoo as Exh. 4, P. W. Khamoon as Exh. 5, P. W. Lalu, Exht.
6. P. W. Shah Baig S. I. P. Exh. 9, P. W.
Ghulam Akbar Exh. 7 and Ghulam Qadir Exh. 8.
4. The learned trial Court, taking into consideration the evidence led by the prosecution, for the reasons given in its impugned judgment dated 30th June, 1977 acquitted the above named respondents Nos. 1 and 4 consequently the appellant above named has preferred this petition for setting aside the said impugned order, on the grounds mentioned in above petition.
5. The learned Advocate for the applicant in support of the above petition submitted as under:-
(a) The learned trial Court has misread and misappreciated the evidence of P. W. And as such came to wrong conclusions, which are not warranted by facts and evidence on record.
(b) That learned trial Court did not proceed with the private complaint filed by the applicant first, in utter disregard of the law laid down by Honourable Supreme Court in case reported in PLD 1966 SC 708 and did not pass any orders thereon under section 203, Cr. P. C. In respect of the private complaint filed by the applicant and as such entire trial has been vitiated and consequently judgment dated 30th June. 1977 of the learned trial Court is liable to be set aside, on this ground alone.
(c) That P. Ws had injuries on their persons and as such their presence could not be doubted.
(d) The respondent No. 3 admits his presence, but stated that he caused injuries in self-defence, for which there is no evidence on record. Case against respondent No. 4 is fully established, beyond reasonable doubt and as such his retrial could be ordered, on the basis of evidence on record. In support of above contentions, the learned Advocate for the applicant relied upon cases reported in PLD 1966 SC 708 and PLD 1965 Pesh. 72.
6. The learned Advocate for the respondents Nos. 1---4 on the other hand submitted as under.
(a) That P: Ws. Were interested witnesses and as such their evidence required independent corroboration, which was not at all available in present case and as such learned trial Court rightly disbelieved them for cogent reasons. In support of this contention the learned Advocate for respondents Nos. 1-4 relied upon cases reported in PLD 1981 Kar. 1 and PLD 1969 SC 398.
(6) There is contradiction in ocular and medical evidence and as such no reliance can be placed on the evidence of P. Ws. At all.
(c) That private complaint was based on same facts and on same evidence, as Police case against the present respondents Nos. 1-4 and as such law laid down by Honourable Supreme Court in PLD 1966 SC 708 not at all applicable to present case.
7. The learned Advocate appearing for the State, on the other hand submitted, that the impugned judgment of the learned trial Court is based on the appraisal of evidence and on cogent reasons and as such he does not support above petition, which is liable to be dismissed.
8. I have carefully considered the above submissions made by the learned Advocates before me and I have gone through R & P of the learned Trial Court as well as through impugned judgment. I have also very carefully considered various authorities cited before me by learned Advocates of the parties.
9. All P. Ws. Are admittedly interested witnesses and besides ibis there is, prima facie enmity of these P. Ws. With respondents Nos. 1-4, according to evidence on record. In addition to this there are material contradictions in ocular and medical evidence. Prosecution did not examine any independent witness of the locality nor any recoveries were made from the respondents in question. I have gone through the impugned judgment, which is based on proper appraisal of the evidence on record and the learned trial Court has given cogent reasons for arriving at its conclusions and findings. I do not find any misreading of evidence on the part of the learned trial Court.
10. The contention of the learned Advocate for the appellant, that entire trial has been vitiated, as private complaint filed by the applicant was not tried first nor any order in respect thereof were passed under S. 203, Cr. P. C. By the learned trial Court, has also no force. The Honourable Supreme Court's case, reported in PLD 1966 SC 708, and PLD 1965 Pesh. 72 are based on completely different facts and as such in my opinion are not at all applicable to the present case. In present case. I find, that private complaint is practically ditto copy of F. I. R. And P. Ws. In both the cases are same, so also accused persons. In view of this joint trial of private complaint alongwith Police case has not resulted in miscarriage of justice. In my opinion provisions of section 239 Cr. P. C. Have not been violated by joint trial of private complains and Police case in question. The learned trial Court after recording evidence of complainant and his witnesses in P. E. Passed order dated 28th January, 1976 on the private complaint, which is on record and I find no illegality in the said order. In view of this order dated 28th January, 1976, the contention of the learned Advocate for the applicant, that no orders under S. 302, Cr. P. C. Were passed in respect of the private complaint is misconceived.
11. Therefore, I find no force in the above revision petition, which is consequently dismissed.