1. ABDUL HAYEE KURESHI, ACTG. C. J.----Mr. Muhammad Ibrahim Memon, Additional Advocate- General, who was present in Court today in connection with some other cases, has also been heard.
2. The order dated 16th March, 1983, was dictated in the presence of the Advocate for the applicant. If he had not withdrawn this appeal, we should certainly not have stated so.
3. In fact, this case was heard at length i.e. For about forty-five minutes. Ultimately, one of us expressed that we are inclined to dismiss this matter, and in such circumstances, there is a likelihood of prejudice to the apple--cant, if opinion is expressed on merits. We asked the Advocate, whether he would like to withdraw this appeal, and the Advocate states that he did not expressly state that he would withdraw the appeal. Possibly, he may not have said so, but we had expressed, even otherwise on merits, that this was not a matter fit for admission. In any case while the order was being dictates no objection was raised, and surprisingly in paragraph 4 of the affidavit of Mr. Anwar Qadri, it is stated that the Advocate came to know on 17th March, 1983 that the order had stated that the appeal had been withdrawn.
4. In these circumstances, in order to obviate any chance of prejudice to the petitioner, we have heard the Advocate again.
5. The brief facts are that the land measuring 102 acres, situated in Deh Bhitaro, Taluka Badin, was allotted to Muhammad Qasslm, the brother of applicant/complaint S. Muhammad Sayeed.
6. Admittedly, Muhammad Qasim, or complainant S. Muhammad Sayeed were-not looking after the land, so that a power of attorney was executed by Muhammad Qassim in favour of S. Muhammad Sayeed and the latter in favour of Farman Ali. In regard to this power of attorney, the contents cannot be easily gathered, because there is a dispute, whether it was a general power of attorney, giving authority to respondent Farman Ali to dispose of the land, or it was a special power of attorney for managing the affairs relating to the land. The allegations in the complaint are that Farman Ali had disposed of the land in favour of respondent Abdullah by either misleading the Revenue Authorities, or, production of a forged power of attorney, showing that the owner of the land had authorised him to gift the land. A complaint was filed before the Civil Judge and First Class Magistrate, Badin, alleging the commission of offence of cheating, making of forged document and using the same. The Magistrate has acquitted the accused, and hence the present appeal under section 417, Cr. P. C.
7. On merits a few significant factors cannot be overlooked. Admittedly, Farman Ali had acted on a power of attorney. This is proved by the mutation register maintained in the Revenue Office, wherein it is stated that Malik Farman Ali had appeared and made a statement on oath, stating that he was holder of a power of attorney, and, on the basis thereof, he had gifted the land in question to respondent Abdullah. The mutation was made on 23rd September, 1974. No action, whatsoever, was taken by Muhammad Qassim, or complainant Muhammad Sayeed until 1978 when for the first time, a notice was given by complainant Muhammad Sayeed to Farman Ali, stating that the terms, relating to the management of the land, had not been observed, and the authority of Farman Ali did not extend to transferring the land. It is further stated in this notice that a sum of Rs. 37,000 was payable to the Agricultural Development Bank, and, since this amount bad not been paid, complainant Muhammad Sayeed had been seriously prejudiced. This document is a carbon copy of the original, which, as stated by the learned Advocate was not replied to. Be that as it may, there is nothing on the record to indicate that Muhammad Qassim, or, Muhammad Sayeed had, during the long period of at least four years, viz. The period that elapsed between the transfer of the land and the giving of the notice, tried to find out, whether any profit, or benefit had been derived by their attorney Muhammad Qassim from the land. The learned Advocate has invited our attention to same proceedings that were initiated before the Revenue Authorities. The Deputy Commissioner, Badin, was moved by Syed Muhammad Syeed on some date prior to 17th April, 1979, and the held some enquiry into the complaint relating to transfer of land on the basis of forged documents. The Deputy Commissioner's order does not indicate the date when the application was made by the complainant, but the enquiry was terminated on 17th March, 1979.
8. Even the Deputy Commissioner did not take any action to reverse the entries in the record of rights, and he directed the parties to pursue their remedy in the Civil Court, if they were so advised.
9. The respondents had also examined defence witnesses Two of these defence witnesses, namely.
10. Usman and Abdul Ghafoor have stated that respondent Farman Ali had been given a power of attorney, and he read out its contents. The said power of attorney read that respondent Farman Ali was competent to gift, or, sell the disputed land. Similarly, Usman had stated that respondent Farman Ali had demanded the amount, which he had given as a loan to Qassim, whereupon the latter executed some documents regarding lands. The two defence witnesses substantially sup-- port the defence that has been raised by the respondents.
11. The appellant and Muhammad Qassim have also filed a suit before a competent Court for a declaration that the transfer, which has taken place may be declared to be null and void. The suit is still pending, and the nature of controversy involved in this case can also be enquired into and the dispute can be settled by a Civil Court. In fact, that would appear to be a course which is more desirable. This too has weighed with us for declining to entertain this appeal.
12. Since this is an appeal against an acquittal, we have kept in our minds the principles that govern the scope of interference by this Court. Acquittals are not lightly displaced, and this Court 'will have to see, whether the acquittal is passed on wrong assumption of facts, or proceed on a perverse process-of reasoning. In this case the basis of the prosecu--tion was the power of attorney, which was executed in favour of Farman Ali. Such power of attorney was available, and the Revenue Authorities have acted on it. No Revenue Officer is an accused in this case. Nor does the complainant indicate as to why they have not been impleaded a accused. This circumstances, by itself, would indicate that the appellant has no grievance against the Revenue Authorities and has not levelled any allegation of acting on forged documents as far as these authorities are concerned. Even a copy of the power of attorney which, as the complain--ant states, only gave a power to manage the land and not to sell it, ha not been produced. This was a basis for the prosecution.
13. We are of the view that the judgment of the trial Court is justified andis not liable to be set aside.
14. We dismiss this appeal in limine.