1. This criminal acquittal appeal is directed against the judgment dated 19-4-2000, passed by the learned Judicial Magistrate, III Karachi, West in Private Complaint No.968 of 1999, under sections 452 and 427, P.P.C., whereby he acquitted the respondent No.2 under section 245(i), Cr.P.C.
2. According to the case of the appellant/complainant, in his complaint he is owner of Almadina Hotel, bearing KPT No.74/7. Adjacent to his plot, the respondent No.2/accused has a Plot bearing No.74/9. It is alleged that the accused/respondent intended to construct building extending the same to the backside of the hotel of the complainant. Consequently, the appellant filed Suit No. 1542 of 1998 before this Court and interim injunction was granted. According to the complainant/appellant, intimation of such injunction was conveyed to the respondent No.2 on 4- 12-1998. On the next day i.e. 5-12-1998 at 7-00 p.m. Accused duly armed with his companions came at the place of the appellant, trespassed into his hotel by show of force, demolished his property and then took forcible possession. The incident was witnessed by Nasim Khan and Malik Aman. The complainant tried to lodge report of this incident at Police Station Jackson, but, due to influence of the respondent No.2, he could not succeed. On 18--12-1998, the appellant filed Constitutional petition for seeking direction to lodge report and consequently, F.I.R. No.11 of 1999 was lodged under sections 448/447, P.P.C. The appellant was not satisfied with such lodging of report, therefore, he filed the direct complaint as stated above. Ultimately the complaint was brought on record.
3. The trial Court framed charge against the respondent No.2, whoa denied the same. The complainant examined himself and produced complaint, copies of sale agreement, plaint in suit, allotment order, bank payment receipt, licence, challan, memo. Of petition, and statement recorded under section 200, Cr.P.C. Besides, he also examined Malik Aman, Ghulam Sarwar and Nasim and then closed his side.
4. The respondent No.2 was examined under section 342, Cr.P.C. In which he denied the allegations, but did not examine himself on oath: The learned trial Court settled the following points for determination: (1)Whether, accused committed trespass on the alleged date and time thereby demolished the property of the complainant?
5. (2)What offence, if any, the accused has committed?
6. The learned trial Court answered the point as doubtful and acquitted the respondent No.2 by the impugned judgment.
7. I have heard the learned counsel for the parties and perused the record.
8. The learned counsel for the appellant contended that the impugned judgment is based on misapplication and misreading of the evidence inasmuch as it does not speak of the submissions made on behalf of the appellant. He further stated that all the witnesses have supported the case in their evidence, but the trial Court discarded their evidence mainly on the ground that they were employees of the complainant. Such approach is not sustainable in law. Moreover, there was unchallenged documentary evidence on record which the trial Court committed to take into consideration. Therefore, a great miscarriage of justice has been caused. He also referred to the inspection notes prepared by the Nazir of this Court in suit to show that according to those notes, the persons belonging to the respondent No.2 were found available on the spot. On these grounds the learned counsel for the appellant prayed that the impugned judgment may be set aside. In support of his submissions, he relied upon 1997 M LD 1148, and 2000 SCM R 727.
9. Learned counsel for the respondent No.2, on the other hand supported the impugned judgment.
10. According to' him the complainant/appellant had involved the respondent No.2 due to enmity which is admitted. The complainant at the first instance filed suit against the respondent No.2, and then on false ground filed Constitutional petition for lodging F.I.R., which was allowed and the complainant filed F.I.R. According to his own version. But later on backed out from it also and filed the present direct complaint to improve his case. Thus, he is dragging the respondent No.2, in one or the other false case in order to pressurise him and to usurp his property which is adjacent to the property of the appellant. Regarding the witnesses he submitted that they are employees of the appellant and as such interested as they are not supposed to depose against their master. It is also admitted fact that many other persons were available in the locality and could have been cited witnesses, in case the incident had actually taken place. Absence of such independent witnesses gives a bona tide presumption that the case was false. Therefore, the finding of the trial Court to that extent is well and good. He also invited my attention to the fact that the complainant alleged that the respondent No.2 had attacked the complainant party and demolished his property, alongwith 10/12 other persons, yet he filed direct complaint only against the respondent No.2. Lastly, he submitted that the matter is purely of civil nature and the police had also disposed of the F.I.R. Of the complainant in 'C' class after holding investigation. Lastly he submitted that the findings of the learned trial Court are not liable to be interfered with and the appeal merits to be dismissed. In support of his submission, he relied upon 1992 SCM R 1047 and 1992 SCM R 96.
11. Learned A.A.-G. Has also supported the impugned judgment.
12. I have carefully examined the above submissions of the learned counsel for the parties and also gone through the evidence and the impugned judgment. Admittedly, civil litigation is going on between the parties and a suit is also pending in this Court. There is no denial of the fact that at the first instance the appellant had filed F.I.R. Against the respondent No.2 and others, after seeking direction from this Court in the Constitutional petition, which F.I.R. Was disposed in cancel class by the police. It was thereafter, that the complainant filed direct complaint against the respondent No.2 only. The trend of the appellant/complainant shows that, he had been changing his version from one after other. There is no nexus between the facts mentioned by the complainant/appellant in his earlier F.I.R, and the direct complaint. Although the appellant alleged that about 10-12 persons had come to his hotel to demolish the structure, but for reasons best known, he only implicated the respondent No.2. There is no gainsay that evidence of employees cannot be ruled out because of their being interested in the complainant/appellant, but in view of the fact that according to complainant's own saying that many persons had gathered at the time of incident and further that the hotel of the appellant is situated in thickly populated area, such evidence cannot be taken to be confidence inspiring. It is well-settled that when good and independent evidence is available and the same is not produced for corroboration, the recording of sentence on the evidence of related witnesses or employees would not be safe. Thus, finding of the trial Court on this point does not call for any interference. Besides, the appellant in cross-examination also admitted that at the time of incident he was not present. This admission by the complainant demolishes the entire case of the complainant. So far as Nazir's report is concerned, it has nothing to do with the present case as the inspection was carried out in civil suit and it states that at the time of inspection the Nazir found four persons under the supervision of one Supervisor, working at the site. This in no way supports the case of the appellant particularly when such report is not proved by recording evidence of the Nazir. The case-law cited by the learned counsel for the appellant is not applicable to the facts of the instant case. The upshot of the above discussion is that I dont' find any reason to interfere with the judgment of the learned trial Court, which is based on proper appreciation of the evidence arid material on record. Consequently, this appeal is dismissed.