SYED MUHAMMAD FAROOQ SHAH, J.----Through this Appeal, against acquittal judgment delivered on 22.1.2015 by the learned 1st Civil Judge and M.J. Mirwah, the appellant being complainant of case Crime No. 82/2014 registered with P.S. Mirwah under sections 447, 511, 506/2, 337-H2, 148, 149, 504, P.P.C. Has prayed to set aside the said judgment mainly the ground that without closing the prosecution side, the learned trial Judge has recorded the statement of accused under section 342, Cr.P.C.
2. Precisely, the prosecution story as narrated in the FIR lodged by appellant, is that complainant/appellant developed strained acrimonious relation with accused persons. Over dispute on agricultural land. The complainant alleged in the FIR that on 15.4.2014 at morning time when he was in his land with his nephew Asad Ali and brother Nazim Ali, at 11-00 a.m., the accused persons named in the title of instant appeal duly armed with deadly weapons, asked the complainant party that the said land is belonging to them. All of sudden accused persons made aerial firing and went away. Thereafter, complainant party returned to their village and made such complaint to their good persons of locality and elders of their community. The complainant has also alleged that the accused did not participate in 'private Faisala' hence he lodged the aforesaid FIR. After registration of FIR and on completion of usual investigation, the police submitted the challan. Formal charge was framed and to prove the case, the prosecution examined complainant Kazim, P.W. Nazim Ali and SIP Abdul Haq. Thereafter, mashirs of wardat and arrest did not show their appearance and consequently the prosecution side was closed. Statements of accused persons were recorded under section 342, Cr.P.C. In their statements they denied the allegations of commission of offence alleged against them.
3. A perusal of record shows that the trial court has recorded its judgment on the point of determination that "whether on the day of incident the accused in furtherance of their common intention duly armed with deadly weapons attempted to criminally trespass over the land of complainant and made aerial firing as alleged by the prosecution". In his evidence, the complainant has stated that he had purchased the disputed land from one Mumtaz Pahore and he has also deposed in his cross-examination that civil suit is also pending in the court of Senior Civil Judge Mirwah. He has also stated that P.W. Mumtaz is his brother-in-law, ASI Ghulam Sarwar and P.W. Nazim are his brothers and P.W. Asad Ali is his nephew. He has further stated that DSP Ghulam Ali Jumani had also conducted the investigation of this case and reported that the case is false. He has further stated that C.P. No. S-1458 of 2014 was also filed before this Court and that he has also moved application to apex Court as well against the accused persons.
4. Learned counsel representing the appellant/complainant submits that the trial court has illegally closed the prosecution side, however, in reply to specific query by this Court that as to whether in appropriate cases, the court cannot close the prosecution side, the learned counsel for the appellant replied in negative.
5. Mr. A. R. Kolachi learned A.P.G by supporting the impugned judgment submits that neither any illegality, gross irregularity or infirmity is found available in the impugned judgment.
6. Suffice it to say that the learned trial Judge in the impugned judgment has correctly observed that the complainant or his witnesses have failed to produce any convincing evidence showing that the accused have trespassed into the land or remained there unlawfully. On the contrary the complainant has stated that after the incident accused went away, therefore, the ingredients of section 441, P.P.C. Punishable under A section 447 are not attracted. It is also an admitted fact that the accused persons did not cause any injury to complainant or his witnesses nor any empty was secured from the place of occurrence. Moreso, no recovery of incriminating weapon was made by the police from the accused persons. The entire record shows that the complainant side has miserably failed to establish the commission of offence against the accused by way of adducing unimpeachable evidence.
7. The extra ordinary remedy of an appeal against an acquittal is quite different from an appeal preferred against the findings of conviction and sentence. Obviously, the appellate jurisdiction under section 417, Cr.P.C. Can be exercised by this Court if gross injustice has been done in the administration of criminal justice, more particularly, where, findings given by trial court are perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by trial court are wholly artificial. Scope of appeal against acquittal of accused is considerably limited, because presumption of double innocence of the accused is attached to the order of acquittal as held in 2002 SCM R 713.
8. Order of acquittal passed by trial court which is based on correct appreciation of evidence, would not warrant interference in appeal. Accused earns double presumption of innocence with the acquittal; First, initially that till found guilty he has to be considered innocent; and second, that after his acquittal by trial court further confirmed the presumption of innocence as held in 2012 PCr.LJ 1699 (FSC) 2013 YLR 223 +2011 PCr.LJ 1234. In 2013 PCr.LJ 374, it was held that appellate court would not interfere, unless misreading of evidence, violation of legal provisions, jurisdictional defect; acquittal order on face of it being contrary was established. In 2013 PCr.LJ 345 and PLJ 2009 FSC 284, the principles for the appreciation of appeal against acquittal are held to be (i) misreading of evidence, (ii) lack of consideration of material evidence, (iii) reception of evidence illegally, (iv) violation of legal provisions, (v) jurisdictional defect, (vi) reliance placed on matters extraneous to the record, (vii) material witnesses for the prosecution were not recorded, (viii) the acquittal order on the face of it is contradictory, (ix) the order of acquittal was passed without hearing the prosecution, (x) acquittal is based upon reasons which do not appeal to reasonable mind (xi) that there are gross mis-statement appearing in the judgment under review.
9. It shall be advantageous to mention here that the appellate court by exercising its powers under section 417, Cr.P.C. Could interfere only if the order of acquittal is based on misreading, non- appraisal of evidence or/was speculative, artificial, arbitrary and foolish as held in 2008 M LD 1007.
In 2002 M LD 293 and 2000 YLR 190 the dicta laid down is that the order of acquittal passed by the trial court being balanced and well reasoned, would hardly call for interference of the High Court in appeal and similarly High Court should not disturb acquittal if main grounds on which trial court had based its acquittal order are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished.
10. In view of whatever mentioned above, the instant Acquittal Appeal having no merits for consideration is hereby dismissed in limine.