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Criminal Acquittal Appeal No. 211 of 1981, decided on 28th August, 1984.

‑‑‑S. 394‑‑Criminal Procedure Code (V of 1898), S. 417‑‑Appeal against acquittal‑‑Private complaint‑‑Admittedly enmity existing between complainant and accused‑‑Number of cases pending between parties‑‑Two witnesses admittedly, not residents of near place of Wardat‑‑One of them having, appeared as witness against accused in some other criminal case‑‑No independent witness examined‑‑Medical evidence found, in contradiction of witnesses‑‑Subject‑matter of alleged robbery (Crop) not, removed from Wardat‑‑Evidence of witnesses, held, was not confidence inspiring and judgment of trial Court was found consonance with evidence on record‑‑Appeal against acquittal , was, therefore, dismissed.

Khawaja Mahboob Sadiq (absent) for Appellant.

Rashid Tariq Khan for Respondents.

Date of hearing: 28th August, 1984.

This is an appeal against the judgment, dated 30th July, 1981 passed by the learned Civil Judge and F.C.M., Tando Muhammad Khan, in Case No. 60180, acquitting the private respondents, who were tried under section 394, P.P.C. The brief facts leading to the filing of the above appeal are that the present appellant filed a private complaint on 31‑3‑1975, alleging, therein, that on 23rd March, 1975, he was as usual looking after his crop i.e. 'Masoor' (Pulse) and mustered (Jamdo) standing in his land, bearing survey Nos. 140 and 141, situated in Deb Hiran Jagir, Taluka Tando Muhammad Khan, allegedly allotted to his father by the Land Reforms Authority. The private respondents came in a bullock‑cart duly armed with Seiklo, Lathies and hatchets with the intention to take‑away the standing crop forcibly. It was also alleged that accused Ibrahim grappled the complainant and accused Ishaque gave him blunt side hatchet blows. It was further alleged that Jhando, who was doing his work near the scene of offence asked the accused not to cut the crop and also not to kill the‑complainant, thereupon the accused Ismail attacked him and maltreated him. It was also alleged that fortunately two Sepoys of Police Station Mullan Khatiar were passing by the side of the place of Wardat, they came to the Wardat, but the accused after seeing them allegedly escaped, except 4 of them namely, Ibrahim, Ismail, Ishaque and Muhammad, who were captured by the police. It was also averred that injured complainant and Jhando were sent to the Police Station on the bullock‑cart, thereafter, they were referred to the medical treatment to the Doctor of Tando Muhammad Khan Hospital.

2. In support of the above private complaint, the complainant examined himself as Exh. 3, P.W. 2 Khabar, Exh. 5, P.W. 3 Ishaque and P.W. 4 Dr. Muhammad Azeem. The above P.Ws. 1 to 3 have more or less reiterated the contents of the private complaint in their examination‑in‑chief. However, an the cross‑examination the appellant/ complainant Muhammad Hassan has admitted the factum of pending litigation between him and some of the accused in respect of survey No. 140, inasmuch as that a civil suit was filed by the appellant against respondents, Muhammad Rahim, Ali Muhammad and Ibrahim in the Court of Civil Judge, Tando Muhammad Khan and an ad interim was obtained on Mst March, 1975. He also admitted the factum of the filing of an appeal before the Collector, Hyderabad against the accused Muhammad Ali and Muhammad Rahim about the land in dispute. He further admitted the filing of a criminal case against Muhammad Rahim, Ali Muhammad, Ibrahim and others under section 4471147, P.P.C. in the year 1972. However, he did not remember whether P.W. Khabar appeared as a witness for him in that criminal case.

P.W. 2 Khabar in his cross‑examination admitted the fact that his village was situated about mile from the complainant village. He also admitted that fact that Jhando's village was situated at a distance of 3‑4 miles. He had also stated that accused Ishaque had given 4‑5 blows to the complainant from the back side of the hatchet. He has further stated that he did not remember whether he had appeared as a witness for the complainant in the criminal case. He had also stated that he was already at the place of Wardat when the respondents accused arrived.

Whereas P.W. 3 Ishaque in his cross‑examination stated that his village was situated at a distance of 2/3 miles from the place of Wardat and that he had come to attend that land which was owned by him and which was situated ahead of the land of the complainant of which he was unable to give survey number. He has contradicted the complainant on the point of the arrival of the police by stating that the police had arrived after 4‑5 minutes after the incident. He has also stated in the cross‑examination that the accused Ibrahim had inflicted the hatchet blows to complainant, Muhammad Hassan. He has further stated that he was unable to state how many injuries were caused by the respective accused to the injured persons.

P.W. 4 Dr. Muhammad Azeem in his deposition has stated that on 23‑3‑1975, he was M.O., Tando Muhammad Khan hospital when S.H.O. Tando Muhammad Khan Police Station sent injured Jhando and injured Muhammad Hassan for examination at 5‑00 p.m. he found the following injuries on the two injured:

"Injured Jhando:

(1) Slight swelling on the back left side occipital area.

(2) Complaining paining of right shoulder, back and left side lumber area.''

"Injured Hassan son of Gul:

(1) Swelling at left shoulder. Nothing particular was seen.

(2) Complaining of pain in right shoulder, lower abdomen and gluteal area. No mark of violence was seen."

In his cross‑examination he has inter alia stated that injuries, which were simple could have been received by the two injured by the fall on the ground.

3. It may be observed that it is an admitted position that there existed enmity between the complainant and the respondents inasmuch as a number of cases between the parties were pending. The two alleged eye‑witnesses admittedly were not residing near the place of Wardat. It has come on record that P.W. 2 Khabar appeared as a witness for the complainant against some of the respondents in a criminal case. The above two witnesses do not inspire confidence. No independent witness has been examined. Even the two Constables, who had allegedly by chance came to the place of Wardat were not examined. The appellant was unable to give even their names in cross‑examination.

The medical evidence has belied the version given by .the complainant/appellant and the two alleged eye‑witnesses inasmuchs according to the above witnesses a number of hatchet injuries from its back side were given to the appellant /complainant and a number of Lathi blows were given to Jhando, but the medical evidence indicates two simple injuries to each of the injured; which could have been caused by the fall on the ground. The appellant has implicated 8 persons. The above medical evidence also belies the factum that 8 persons were involved in the commission of the alleged offence.

4. Mr. Rashid Tariq Khan, learned counsel appearing for the State has pointed out that even according to the complainant and his witnesses the crop was not removed from the place of Wardat, and, therefore, section 394, P.P.C. was not attracted. He has further pointed out that the appellant protracted the trial, which lasted about 5 years.

In our view the judgment of the learned trial Court seems to be in consonance with the evidence or, record. Even otherwise, it is an acquittal appeal and unless we find that the view taken by the trial Court cannot be supported in any view of the matter, we cannot interfere with the same. As observed by us hereinabove that factually the view found with the learned trial Court is in accordance with the evidence on record. We see no merits in the appeal, and, therefore, it is dismissed.

S.A. Appeal dismissed.

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