' Fida Muhammad son of Bazida, caste Rajput, resident of D.I.Khan, Zamindar village Singharh has invoked the jurisdiction of this Court through the instant appeal under section 417(2), Cr.P.C.
Challenging the order, dated 5-9-1981 of Mr. Ejaz Ahmad Khan, Deputy Collector exercising power of Magistrate Ist Class, D.I. Khan whereby he acquitted the accused/respondents of the charge under section 70, Minor Canal Act, under the powers conferred upon him under section 247, Cr.P.C.
Alongwith the appeal prayer for special leave to appeal was also made which was granted per order of this Court, dated 14-2-1982.
2. Facts leading to the acquittal of the accused/respondents succinctly may be stated as thus.
Appellant Fida Muhammad moved a complaint on 13-6-1977 in the Court of the Deputy Collector against Haji Hussain a son of Gama and his 2 sons Abdul Ghaffar and Sanaullah alleging that his father Bazida is the Zamindar of Village Singharh and that he being an old man of 85/90 years of age, the entire Zamindara work on his behalf is performed by him that Abdur Rehman who is owner of the contiguous land informed him on 11-6-1977 that the respondents have demolished the "Kassi" meant for irrigating his land on which he immediately rushed to the spot and himself witnessed the demolished 'Kassi' that Abdullah Shah son of Muhammad Bakhsh also corroborated the version of demolishing 'Kassi' by the accused/ respondents. It was also alleged that through this illegal act of the accused/respondents his source of irrigation has been forcibly demolished and hence he prayed for strict action in accordance with law against all the accused/respondents.
3. The complaint was enquired into under section 202, Cr.P.C., the accused were charge-sheeted, the evidence of the complainant was recorded and case was fixed for the evidence of the 1efence when complainant Fida Muhammad moved the Court the learned Sessions Judge, D.L. Khan for the transfer of the case but that application had not yet been adjudicated upon when the Deputy Collector acquitted all the accused/respondents under section 247, Cr.P.C. Because in the opinion of the Deputy Collector, the complainant was practising hide and seek with the Court by delaying tactics. This order of acquittal aggrieved the complainant and he has approached this Court for redress.
4. I have heard the arguments of Mr. Muhammad Saleem, Advocate for the appellant, Mr. Muhammad Iqbal Khan Kundi, Advocate for the respondents and Mr. Muhammad Khan on behalf of the State and have also thoroughly scrutinized the record of the case.
5. Irrespective of the rights of the appellant with regard to his title in the disputed 'Kassi' the question that falls for the determination is that whether Fida Muhammad could file the complaint.
So far nothing has been brought on record that the land in question is the ownership and in possession of the complainant. It is admitted by the complainant himself in the complaint Exh. P.A.
That the land belongs to Bazida his father who is 85/90 years of age. Thus the proper person who could file the complaint was the owner of the land and Fida Muhammad in the absence of any special or general power-of-attorney could in no circumstance file the complaint in question.
Nowhere the complainant has been able to prove through the evidence produced by him that the accused/respondents were responsible for demolishing the 'Kassi' in question. So much so that Abdullah Shah who was cited as a witness to the alleged demolishing of 'Kassi' by the complainant was not produced. It can thus validly be presumed that had he been produced in the witness-box he would not have supported the complainant. Plea of the appellant that the order of acquittal has resulted in miscarriage of justice in as much that the evidence was not recorded is not tenable because as for the complainant is concerned he had closed his evidence and in the ordinary course it was the evidence of the complainant on which the complaint hinges and once the trial Court came to the conclusion that the complainant had miserably failed to establish his case through his own evidence he was quite within his jurisdiction to acquit them.
' It was held in Syed Mehmood Saeed v. Malik Farman and another 1983 P Cr. L J 1338 that:- "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 proceeds on a perverse process of reasoning."
' Likewise in Gulnawaz v. The State 1968 SC MR 1168 it was held that:- "It should have been remembered that the appreciation of evidence made by the trial Court must always be given due weight and importance, for, that Court has the advantage of not only hearing the evidence but also observing the demeanour of the witnesses deposing before it. Its judgment of the credibility of a witness is not to be lightly discarded, particularly, where such judgment is supported by cogent and substantial reasons."
' In another authority The State v. Fazal Ahmad and another 1970 PCr.LJ 633 it was held that:- "It is, more or less a practice 'that a Court of appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court. In other words, the order of acquittal will not be set aside on the grounds of appreciation of evidence alone'."
' Thus, once the trial Court gave full consideration to the evidence produced by the complainant and came to the conclusion that the complainant had failed to establish his case beyond reasonable doubt he was quite within his power to acquit the accused/respondents. However, the section of law i.e, 247, Cr.P.C. Applied by the learned trial Court was not the proper course adopted.
In fact the trial Court should have acquitted the accused under section 249-A, Cr.P.C. Which empowers a Magistrate to acquit the accused at any stage of the case. However, this is a mistake quite curable and on this technical ground the appellant cannot get the advantage of further putting the accused in the agonies of the trial.
6It is needless to point out that the order of the trial Court has in no way prejudiced the complainant with regard to his rights of irrigation through the 'Kassi' in dispute because the question of demolishing the 'Kassi' by the accused/respondents having not been brought home would not amount to deprive the complainant from irrigating his lands if he can establish his rights of irrigation through the said 'Kassi' which dispute is quite of civil nature. In the instant proceedings the appellant having miserably failed to prove to the satisfaction of the trial Court the alleged action of demolishing the 'Kassi' by the accused/ respondents, no interference with the order of acquittal is called for. Accordingly this appeal having no consideration is hereby dismissed .