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Criminal Acquittal Appeal No.30 and M.As. Nos. 1842, 1747 of 2013, decided on 23rd August, 2013.

----Ss. 410 & 417(2)---"Appeal against conviction" and "appeal against acquittal"--- Scope and principles--- Principles for appeal against conviction and acquittal, were altogether different---Accused, in an appeal against acquittal, earned double presumption of innocence; one before trial and the other after acquittal and for reversal of acquittal of accused, appellant had to bring on record that the evidence which had been brought on record had not been properly considered; and the order of the Trial Court was fanciful, perverse and not in accordance with the law.

----Ss. 420, 409, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), S. 417(2-A)---Cheating and dishonestly inducing delivery of property, criminal breach of trust by public servant, forgery, using as genuine a forged document, corruption---Appeal against acquittal---Appreciation of evidence---Neither complainant nor any of his witnesses had seen the official accused in accepting or demanding the bribe to give undue favour to the accused---Simple presumption of the complainant was that Mukhtiarkar and Tepedar (respondents) had changed Khata of disputed survey number after accepting bribe---Order of Commissioner, main base of complaint, was sub-judice before Member Board of Revenue---Appeal against the order of Commissioner being pending before the Board of Revenue, which was the competent forum of Revenue Authorities to evaluate and examine the genuineness, authenticity and correctness of said entry; criminal court was not competent to determine the rights of parties and orders on the basis whereof it was recorded---No illegality or irregularity in the impugned judgment had been pointed out by the counsel for appellant---Impugned judgment having been passed by Special Judge, Anti-Corruption in accordance with law and available evidence, that did not require any interference---Appeal, stood dismissed. Faiz Muhammad Larik for Appellant. Date of hearing: 23rd August, 2013.

Appellant has brought this acquittal appeal against the judgment dated 27-7-2013 passed in Case No.75 of 2001 by Special Judge, Anticorruption Provincial Larkana whereby respondents Nos.1 to 4 were acquitted from the charge framed on the complaint of appellant/complainant Mir Nazar that the respondents Nos.3 and 4 and two accused, namely, Noor Muhammad and Wahid Bux (since dead) in collusion with respondents Nos.1 and 2 (Mukhtiarkar and Supervising Tapedar) got fraudulently mutated revenue record of survey number 719 (2-03) acres of deh Keenjhar, in the name of deceased Noor Muhammad which is situated in Muhag of his land. Official accused were alleged to have accepted bribe to give undue favour to accused Noor Muhammad. The complaint was brought on record and proceeded accordingly. At trial the appellant/complainant examined himself and produced a copy of appeal preferred to Commissioner against allotment of said survey number and copy of his application moved to the Deputy Director Anti-corruption Larkana. P.W. Shahnawaz was also examined who is also brother of the appellant. The statement of the accused was recorded by the trial Court and the trial Court after hearing the parties and going through the evidence observed as under:-- "It is inter alia stated by the complainant Mir Hazar and P.W Shahnawaz that the S.No.719 (2-03 acres) of deh Keenjhar is in their possession, wherein they have constructed their houses, it is belonging to Government, it was allotted to Haji Noor Muhammad on "Khasmokal" grant, against such allotment they preferred an appeal before Commissioner, Larkana and now matter is pending before Board of Revenue Sindh. If it is so, then it is the case of civil nature relating to allotment of government land and same ought not to have been converted into criminal one under the garb of bribe, which significantly was neither demanded nor paid in presence of the complainant or his witnesses. In these premises, it is rightly being contended on behalf of the present accused that; they have been involved by the complainant in this case falsely only to create harassment as they may given up their legitimate right over the government land which has been allotted one of them on "Khasmokal" right. In view of above, it could be concluded safely that the involvement of the present accused in this case is not free from doubt." It is settled law that the principles for appeal against conviction and acquittal are altogether on different footings. In an appeal against acquittal the accused earns double presumption of innocence; one before trial and the other after an acquittal. It is also settled proposition of law that for reversal of acquittal of the accused the appellant has to bring on record that the evidence which has been brought on record has not been properly considered and the order of the trial Court is fanciful, perverse and not in accordance with the law. In the instant case admittedly neither complainant nor any of his witnesses had seen the official accused in accepting or demanding the bribe to give undue favour to accused late Noor Muhammad. There is simple presumption of the complainant that Mukhtiarkar and Tapedar (Respondents Nos.1 and 2) had changed khata of disputed survey number after accepting bribe. The order of Commissioner, main base of this complaint, is subjudice before Member Board of Revenue as admitted by the complainant in his cross-examination. Since the revenue appeal against the order of Commissioner is pending before the Board of Revenue which is the competent forum of revenue authorities to evaluate and examine the genuineness, authenticity and correctness of the said entry and orders on the basis whereof it was recorded. The Criminal Court is not competent to determine the rights of parties as such the complainant had no cause of action before the Anti-Corruption Court to challenge it to be forged and fabricated. No any illegality or irregularity in the impugned judgment has been pointed out by the learned counsel for the appellant. The impugned judgment of the learned Special Judge, Anti-Corruption (Provincial) Larkana appears to have been passed in accordance with law and available evidence therefore it does not require any interference and even no case for issuance of notice to the respondents is made out consequently this appeal stands dismissed in limine. HBT/M-154/K Appeal dismissed.

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