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Criminal Revision Application No. 419 of 1965, decided on 1st May 1967.

, S. 439-Revision against acquittal - Order of acquittal found to be against weight. of prosecution evidence and based on highly erroneous view of law on admitted facts-Retrial of accused ordered.

Azizullah K. Shaikh for Applicant.

Mrs. Salima Nasiruddin for the State.

Nemo for Respondent No. 2.

Date of hearing : 1st May 1967.

This revision petition is directed against the, judgment dated the 26th of April 1965, passed by the Civil Judge and First Class Magistrate, Rohri acquitting the respondent Ali Sher son of Haji Virand for an offence under section 406, P. P. G. The facts briefly stated are these;

2. The petitioner Muhammad Yaqub is 'Kamdar' of Shall Muhammad Qureshi, a Zamindar under Whom respondent Ali Sher was a hari in respect of Survey No. 151 of Deh Bai-ji-Nai, Taluka Pano Akil, District Sukkur. Before the commencement of cultivation, Ali Sher was given five maunds of wheat for the purposes of seed and he utilized the same accordingly. After the harvest was ready, Shafi Muhammad Went, on 1st of July 1964, for the 'Batai', On distribution, the share of the Zamindar in the cultivation came to nine maunds, and Shafi Muhammad was also entitled to the return of five maunds given to the hari as seed. Shafi Muhammad put to the total quantity of fourteen maunds of wheat in five bags and kept them in trust with Ali Sher for want of transportation.

3. The petitioner Muhammad Yaqub, 'Kamdar' thereafter went to collect the bags from the respondent on the 4th day, but it is alleged that the respondent told him that he had sold the wheat as he was in need of money, and that h.- would pay the amount as soon as possible. He requested the 'Kamdar' not to inform the Zamindar about this. Thereafter, Muhammad Yakub went several times but the respondent avoided to make the payment on one pretext or the other. Muhammad Yakub reported the matter to his Zamindar Shafi Muhammad, who told him that he was going to Karachi and he would look into the matter after his return. It is alleged that on the 19th of July 1964, on return from Karachi, Shafi Muhammad along with his 'Kamdar' and other persons went to the respondent and demanded the wheat but the respondent refused to return it. Shafi Muhammad then directed his 'Kamdar' to lodge a complaint in Court which he accordingly filed before the Civil Judge and First Class Magistrate, Ghotki on the next clay, i.e. 20th of July 1964.

4. The case was, however, subsequently, transferred and tried by the Civil Judge and First Class Magistrate, Rohri.

5. At the trial, Shafi Muhammad and his Kamdar Muhammad Yakub deposed the facts to the effect stated above. Allah Dino P. W. 3 was examined in corroboration of their allega tions. He supported Shafi Muhammad that the respondent refused to give the share of Batai payable by him.

6. In his statement Ali Sher admitted that he was a hari on the land and that he had to give nine maunds of wheat as 'Batai', and five maunds as seeds to his Zamindar Shafi Muhammad. He, however, stated that he gave the five gunny bags to one Abdul Ghaffar, maternal uncle of the grandsons of Ali Muhammad, the brother of Shafi Muhammad. His case further was that he had obtained a receipt in this behalf from Abdul Gha6ar, but he, however, did not produce the receipt. He examined only one person in defence, namely, Khuda Bux another hart of the Shafi Muhammad in respect of neighbouring land. This witness stated that Abdul Ghafar is the guardian of, the grandsons of Ali Muhammad, brother of Shafi Muhammad, and he used to take share of 'Batai' of the crop.

7. The learned Civil Judge and F. C. M. was of the view that the survey number in question was owned by Shah Muhammad and his deceased broth-.r Ali Muhammad, and it appeared that the grandsons of Ali Muhammad claimed the share of the produce through their maternal-uncle Abdul Ghaffar, and that there was a dispute between Shafi Muhammad and Abdul Ghaffar over the crop. The learned Magistrate was further of the opinion that the prosecution witnesses were highly interested and the version of the accused appeared to be true. He, therefore, held that the accused, a poor - hari, was unnecessarily harassed by his Zamindar and was entitled to acquittal.

8. In support of this revision application, the learned counsel for the petitioner pointed out that it was the case of the respondent himself that he had to give 9 mounds of wheat as Batai' to Shall Muhammad, who was his Zamindar. In his statement in Court he had also admitted that Shafi Muhammad had given him five maunds of wheat for seed purposes, and this quantity of wheat was returnable by him to Shall Muhammad. The learned counsel urged that if the case of the accused was that he had given the quantity of wheat 0 Abdul Ghaffar on obtaining a receipt from him, then he should have produced the receipt or examined Abdul Ghaffar in defence. Having done neither, the learned counsel pleaded that the defence plea set up by the accused must be held as false and the prosecution case found as proved on the admissions made by the accused.

9. I have gone through the evidence recorded in this case very carefully. To a question put to accused whether he had cultivated, as had, five Jerabs out of Survey No. 151 situated in Deh Bai-ji-Nai, Taluka Pano Akil, under P. W. Shafi Muhammad he replied in the affirmative. He further admitted that he had cultivated the rabi crop of the year 1963-64, and that he had to give nine maunds of wheat, as batai' for the said crop and additional five maunds, as seed, to his Zamindar Shall Muhammad. He, however, stated that he had given five bags of wheat to Abdul Ghaffar, maternal-uncle of the grandsons of Ali Muhammad, the deceased brother of his Zamindar Shafi Muhammad. He did not produce the receipt even though he said that he was given one. He also did not examine Abdul Ghaffar in defence. On these admissions made by the accused himself, it cannot be said that the complaint lodged against him is totally false, or that it was brought in order to harass a poor hart. According to his own words the accused had to return five maunds of wheat a share of batai' to Shafi Muhammad as his Zamindar. He admitted that P. W.. Shami Muhammad had given him the seed for the cultivation purposes. The position in law on these admitted facts is clear that he had to return the five maunds of wheat and the share of Batai' to Shafi Muhammad or a person authorised by him in this behalf. In my opinion, the acquittal of the accused is against the weight of the prosecution evidence and has been based on highly erroneous view of law on the admitted facts. I also find that the findings reached by the learned Magistrate are based on total misreading of the prosecu tion evidence and the admission of the accused. The revision application must, therefore, succeed, with the consequence that the respondent shall be re-tried for the offence under which he was charged. The case shall be forwarded, for trial, according to law, to the Civil Judge and First Class Magistrate, Ghotki before whom the complaint was originally filed.

Petition accepted.

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