Najeeb Ullah Vs Mangta Khan etc

Najeeb Ullah Mangta Khan etc.

10.6.2013. Raja Maqsood Hussain, Advocate for the petitioner.

Through the instant appeal filed in terms of section 417 (2) A of Cr.P.C. Najeeb Ullah, appellant has challenged the legality of order dated 29.10.2010 passed by the learned Judicial Magistrate, Kahuta whereby respondent No.1 was acquitted in case F.I.R. No.347 dated 16.11.2007 registered under section 420 PPC at Police Station Kahuta.

2.Precise allegation against respondent No.1 is that on 11.4.2005 he received cash from the complainant amounting to Rs.1,40,000/- for sale of 10-Marlas of land with the promise that he would get the land registered in his name within some days but respondent No.1 adjourned the matter on one pretext or the other. Thereafter, respondent No.1 asked the complainant to purchase another piece of land measuring 181⁄2 Marlas and he received Rs.2,60,000/- cash from the complainant and executed an agreement regarding transfer of the land in favour of the complainant. Respondent No.1 thereafter executed a registered sale deed in favour of the

complainant. The complainant went at the spot where some persons met him and claimed themselves to be the owner of said land by stating that respondent No.1 committed fraud with him/appellant. In the meantime, respondent No.1 requested the complainant to accept another piece of land in lieu of land earlier sold to the complainant and transferred 5-Marlas land in the name of the complainant and as such respondent No.1 prepared a forged registered sale deed of land by entering in it wrongful boundaries of the land and deprived the complainant of more than Rs.4,00,000/-.

3.The learned counsel for the petitioner contends that the impugned judgment is against the law, facts and circumstances of the case; that respondent No.1 got registered sale deed in favour of the petitioner by giving fictitious boundaries which is owned by some other people, thus has committed fraud with the petitioner and this aspect of the case has totally been ignored by the learned trial court; that the impugned judgment is result of misreading and non-reading of evidence available on record; that the impugned judgment is based upon surmises and conjectures and that the impugned acquittal order is fanciful, arbitrary and based upon surmises and conjectures and as such the same is liable to be set aside.

4.I have gone through the impugned judgment of the learned trial court. According to the findings of the learned trial court, respondent No.1 transferred 181⁄2 marlas of land to the appellant/complainant vide registered sale deed (Ex.P/3) in which no specific boundaries of the land had been mentioned which is still registered in the name of the appellant/complainant, whereas the appellant/ complainant through F.I.R. (Ex.P/5) alleged that respondent No.1 had received Rs.1,40,000/- and Rs.2,60,000/- from the appellant for sale of land measuring 10-marlas and 181⁄2 marlas. Neither the said land was transferred in the name of the appellant/complainant nor its possession was handed over to him. The appellant/complainant admitted that respondent No.1 had also transferred another 05-marals land to him and two cheques amounting to Rs.50,000/- and Rs.1,00,000/- respectively were given to him by Captain ® Muhammad Rauf on behalf of respondent No.1. The appellant/complainant also admitted that price of 05-marlas land was written on registered sale deed as Rs.2,00,000/-, which was further sold by him in the sum of Rs.1,75,000/- regarding receipt of Rs.1,50,000/- through cheques from Captain ® Muhammad Rauf, it has been observed by the learned trial court that appellant after receiving amount from Captain ® Muhammad Rauf, taken a new stance

by stating that the amount paid by Mangta Khan, respondent No.1 was received by him (respondent No.1) for sending complainant’s nephew abroad whereas said nephew did not appear before police or before the learned trial court. It has also been observed by the learned trial court that the complainant admitted to return 181⁄2 marlas of land to respondent No.1 and in consideration of it, the complainant got registered in his name 05-marlas of land in addition to receipt of Rs.1,50,000/- from Captain ® Muhammad Rauf on behalf of respondent No.1 whereas 181⁄2 Marlas of land is still in the name of the appellant/complainant and in this respect Investigating Officer also deposed on oath the above said facts. After considering the grounds taken by learned trial court for acquittal of respondent No.1, I do not find any illegality in the impugned judgment. Even otherwise, it is settled principle of law that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the later case and the order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary or foolish in nature. The bare perusal of the impugned judgment has persuaded me to hold that the judgment passed

by the learned trial court is well versed and based upon sound reasoning whereas it is established principle of law that after pronouncement of acquittal by a court of competent jurisdiction, the presumption of innocence becomes double, therefore, while adopting peculiar circumstances and the principle of double presumption of innocence, I am not persuaded to interfere in the judgment rendered by the learned trial court. So in the given circumstances, I do not find any infirmity or illegality in the acquittal order of the learned trial Court. The same is not perverse and it has been held by the Hon’ble Supreme Court that in such circumstances acquittal earned by an accused should not be disturbed. Reliance has been placed on the case reported as Jehangir v. Aminullah and others (2010 SCMR 491). The relevant portion is reproduced hereunder:- “It is well settled by now that “there are certain limitations on the power of the Appellate Court to convert acquittal into a conviction. It is well settled that “Appellate Court would not interfere with acquittal merely because on reappraisal of the evidence, it comes to the conclusion different from that of the court acquitting the accused, provided both the conclusions are reasonably possible. If, however, the conclusion reached by that court was such that no reasonable person would conceivably reach the same and was impossible then this court would interfere in

exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the forgoing searching light, should be found wholly as artificial, shocking and ridiculous”. The view taken by this Court in Ghulam Sikandar V. Mamaraz Khan (PLD 1985 SC 11) is well known that “in an appeal against acquittal this Court would not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. This approach is slightly different from that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well accepted presumptions; one initial, that, till found guilty, the accused is innocent; and two that again after the trial a Court below confirmed the assumption of innocence. This will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below; (a) disregarded;

(b)misread such evidence; (c) received such evidence illegally”.

5.For what has been discussed above, the judgment impugned did not suffer from any error

of law and the conclusion drawn by the learned court is strictly in accordance with law and accordingly no interference is called for. This appeal being devoid of any merits is dismissed in limine under section 421 Cr.P.C.

(AALIA NEELUM)

JUDGE

Approved for reporting.

JUDGE

Hamid/*