1. This criminal revision application is filed on behalf of applicant Abdul Kadir son of Muhammad Ismail under section 435/439, Cr.P.C. Challenging the judgment, dated 29-5-1988 delivered by the learned First Additional Sessions Judge, Sukkur whereby he acquitted the respondents Muhammad Nawaz-son of Abdul Wahid, Ali Muhammad son of Paryal Gabole, Ghulam Kadir son of Ladho Gabole, Yousuf son of Muhammad Bakhsh, Ali Bux son of Muhammad Gabole, Azizullah son of Khairuddin, Muhammad Bashir son of Noor Muhammad and Mazari son of Jeewan Gabole, of the charges under sections 148, 307/149 and 436, P.P.C.
2. The facts of the case arc that an agricultural plot bearing Survey Number 103 has been granted to Huzoor Bux brother of the complainant. On this land the complainant also has his house which is surrounded by a hedge. At the relevant time the complainant party had raised wheat crop on this land. On the day of incident that is 15-1-1979 the complainant Abdul Kadir, his brothers Hazoor Bux and Rasool Bux, his sister's son Allah Bux and his uncles Mahmood and Muhammad were all available in their house when at about 5-00 p.m. Accused Muhammad Nawaz Naich armed with gun came with a tractor accompanied by co-accused Ghulam Kadir having a pistol, Ali Muhammad having a gun, Bashir, Yousuf, Azizullah, Ali Bux and Mazari armed with hatchets and Lathis. All the accused came and started ploughing the land near the house of the complainant.
3. The complainant party came out of the house and stopped them from ploughing the land. On this accused Muhammad Nawaz fired a direct gun shot at the complainant which hit him on his right side' arm. The complainant managed to catch hold of accused Muhammad Nawaz. Accused Ali Muhammad and Ghulam Kadir fired from their weapons which hit Huzoor Bux, Rasool Bux, Allah Bux, Mahmood and Muhammad. Thereafter the womenfolk of the complainant's came with the Holy Quran and the accused then went away. Accused Muhammad Nawaz having been caught, was brought to the house of the complainant alongwith the gun. The, complainant leaving the other witnesses, went to P.S. Mirpur Mathelo where he lodged the report.
4. The report was recorded by S.H.O. Muhammad Nawaz. He referred the complainant to hospital for examination and treatment. He also visited the place of Wardat where he secured blood-stained earth. He also collected 12 empty cartridges of .12 bore from the Wardat and also secured the tractor. He also noted the injuries on the person of injured witnesses. The complainant party also produced accused Muhammad Nawaz before the S.H.O. Who arrested him and secured one gun from the Wardat. He examined the witnesses. After arrest of various accused and after completing the investigation, he submitted the challan in the Court on 1-2-1979.
5. At the trial, the prosecution examined complainant Abdul Kadir and eye-witnesses Muhammad, Mahmood, Allah Bux, Huzoor Bux and Rasool Bux. The two Mashers are Khan Muhammad and Jeand, Medical Officer is Dr. Bagantal. Mr. Hamid Khan Baloch Mukhtiarkar and F.C.M. Who held identification parade in respect of accused Azizullah and Ali Bux. Lastly S.H.O. Muhammad Nawaz who is the Investigating Officer in this case.
6. At the conclusion of the trial the accused were examined under section 342, Cr.P.C. In which they denied the allegations, claimed to be innocent and that they have been falsely implicated.
7. However, none of the accused wanted to be examined on oath nor wished to examine any defence witness.
8. At the conclusion of the case, all the accused were acquitted as already mentioned hereinabove.
9. I have heard the learned counsel for the applicant and also the counsel for the respondents. The counsel for the State has supported the judgment of the trial Court.
10. It has been contended by the learned counsel for the applicant that the evidence has been misread resulting in the miscarriage of justice. He argued that cogent material was available in the case, but the trial Court has not taken the same into consideration. He further argued that material eye-witnesses' evidence was wrongly discarded on the ground of their relationship with the complainant. He has further argued that ocular evidence was also corroborated by the medical evidence and this was a fit case for remanding it back to the lower Court for retrial.
11. On the other hand Mr. Ghulam Kadir Malik for respondent No.1 and Mr. Shaikh Abdul Ghani for respondents Nos.2 to 9 have argued that accused Muhammad Nawaz has as many as 8 injuries, one caused by lire-arm and rest by hard and blunt weapon and the same have not been explained at all. The eye-witnesses are also silent about these injuries. The trial Court has properly taken into consideration all the pieces of evidence. Therefore, this was not the type of case which requires indulgence by this Court. It was further argued that the complainant had filed a suit which has been admitted by the complainant, as such the complainant party was an interested party and inimical to the accused. Mr. Ghani has argued that there was a counter-case in which the complainant party was accused. The counter-case was lodged by Aligohor who is son of accused Muhammad Nawaz.
12. I have carefully applied my mind to the facts of the case and I have also perused the judgment of the trial Court as well as the evidence on record.
13. Before proceeding further, I may observe that this is not an appeal calling for reappraisal of evidence. The present application is a revision against acquittal of the respondents, moved by a private party. Therefore, in such matters this Court is very slow in disturbing the findings of fact arrived at by A the trial Court. As such, the grounds for interfering in revision against acquittal arc also very limited. It has to be shown that the judgment of the trial Court is perverse or that it is completely illegal, or, that from the evidence on record no other conclusion can be drawn except the guilt of the accused, or, that the evidence has been misread resulting in the miscarriage of justice.
14. In the present case an effort has been made by the learned counsel for the applicant to show that the evidence available on record comprised of ocular evidence of complainant Abdul Kadir, Huzoor Bux, Rasul Bux, Allah Bux, Muhammad and Mahmood. The said ocular evidence was corroborated by the medical evidence also, but ocular evidence has been discarded by the trial Court only on the ground of relationship, as such, the evidence has been misread in this case.
15. After going through the record, I find that the factual position as suggested by the learned counsel for the applicant is not the same. It will not be correct to say that the ocular evidence was discarded merely on the ground of relationship.
16. First of all it is to be noted that P.Ws. Huzoor Bux and Rasool Bux arc real brothers of the complainant while P.W. Allah Bux is his nephew. P.Ws. Muhammad and Mahmood are maternal- uncles of the complainant. This will go to show that all the eve-witnesses are closely related to each other. It is also an admitted position that litigation .Was going on between the complainant and accused Muhammad Nawaz over land bearing survey numbers 103 and 89, The complainant himself has admitted in the cross-examination that these survey numbers arc disputed and since 1959 it was being granted to accused Muhammad Nawaz on yearly basis. In 1973 this land was granted on permanent basis to Imam Bux Hari of accused Muhammad Nawaz while No.89 was granted to Muhammad Nawaz himself. The complainant admits that his father and brothers had filed appeal against this permanent grant of land to accused Muhammad Nawaz and his Hari Imam Bux but the Commissioner Sukkur only partly allowed the same. Again in their revision before the Board of Revenue both the survey numbers were granted to the complainant. As against this the accused Muhammad. Nawaz riled a civil suit being First Class Suit No.399/78 pending in the Court of Senior Civil Judge, Sukkur. This was a suit for declaration and' permanent injunction in which respondents were, complainant Abdul Qadir, his brother P.W. Huzoor Bux and P.W. Rasool Bux and their father Muhammad Ismail.
17. The above history of litigation will go to show that a bitter battle regarding survey numbers 103 and 89 was going on between the complainant party and Muhammad Nawaz. It is also important to note, that the land in question was in actual possession of accused Muhammad Nawaz and not the complainant party. In fact in Civil Suit No.399/78 as mentioned above, the accused Muhammad Nawaz had also obtained an interim injunction in the shape of a status quo order passed on his application under Order 39 Rules 1 and 2, and this status quo order was valid from 7- 1-1979 upto 23-1-1979. This means the complainant party was actually restrained from interfering with the peaceful possession of the disputed land in occupation of accused Muhammad Nawaz.
18. The incident has taken place on 15 1-1979 when the status quo order It is therefore, wrong to say that the evidence of the eye-witnesses has been discarded by the trial Court only on the ground of relationship. There is enmity between the parties over land, the accused had obtained status quo order, the complainant was not in possession of the land, as such, the complainant party was an interested party, therefore, the evidence of the eye--witnesses required strong corroboration which was not available in this case.
19. Another important circumstance is that, there was a counter-case lodged by Aligoher son of accused Muhammad Nawaz. All the eye-witnesses namely, Abdul Kadir, Huzoor Bux, Rasool Bux, Allah Bux, Muhammad and Mahmood are accused in the counter-case, therefore, on this ground also their evidence could not be relied upon without independent corroboration.
20. It will therefore, appear that the motive is false, complainant claims ~E that accused wanted to forcibly eject them from their land survey numbers 103 and 89 when in fact there was status quo order in favour of the accused on the day of Wardat which suggests, possession of the land was with the accused. All the eye-witnesses art accused in the counter-case, therefore, their evidence required to be corroborated by an independent source, which was not available on record. There is also civil litigation between the parties, for this reason also the witnesses are inimical and interested as all of them are closely related to each other. The evidence of recovery is of no consequence as the weapons were not sent for any examination. Even the Mashir has belied the recoveries. The complainant's story as given in the F.I.R. Is also not plausible with regard to the capture and custody of accused Muhammad Nawaz. It does not stand to reason, that co-accuses would allow the capture of Muhammad Nawaz by the complainant party, when all accused are shown to be armed with weapons and complainant party claimed to be empty handed. None of the witnesses have been able to explain, 8 injuries on the person of accused Muhammad Nawaz. In act all the witnesses have stated that none of them had caused ,!He said injury nor had they noticed the same.
21. All the above circumstances are reflected and considered in the judgment of the trial Court and I do net find any reason to interfere with the findings of the trial Court.
22. Accordingly this revision application has no merits and the same is hereby dismissed N.H.Q./A-235/K