1982 P Cr (PLP)

Feroze Khan v. Ghulam Nabi P L D 1966 S C 424 and Zafarullah Khan v. Fehim‑ud‑Din Khokhar and another 1976 P Cr. L J 494 ref. (d) Criminal Procedure Code (V of 1898)‑-- ‑‑ S. 423 (1) (a)‑Retrial after long time of occurrence, held, has always been looked upon with disapproval. Mohammad Sadiq v. Lal Muhammad 1968 P Cr. L J 637 and Allah Rakhio Khan v. Mohkum Din and others 1977 P Cr. L J 14 ref. Ahmad Nawaz Malik for A.‑G. for the State. Malik Allah Yar for Respondent. Date of hearing : 14th October, 1979. Respondents numbering 14 in all some of whom are since dead were convicted at the trial held before Mr. Aziz‑ud‑Din. Magistrate 1st Class, Chiniot, District Jhang , held guilty for the offence of theft and each of them was sentenced to rigorous imprisonment for six months. 207 maunds of wheat for the theft of which the respondents were held guilty was ordered to be restored to Sh. Gul Muhammad complainant (petitioner herein). Appeal filed by the respondents to challenge their conviction and sentences was allowed by learned Addi?tional Sessions Judge, Lyallpur (now re‑named as Faisalabad), judgment of learned trial Magistrate was reversed, conviction and sentences of the respondents were set aside and the commodity was also ordered to be handed over to them. This revisional application for reversal of judgment of learned Additional Sessions Judge and for rehearing and retrial of the case was filed by the complainant through Mr. Khizar Tamimi, Advocate since dead as far back as the year 1966. Sh. Muhammad Usman Advocate, Lahore had filed power of attorney on behalf of the petitioner after the death of Mr. Khizar Tamimi Advocate. The former was ordered to be served with notice on the last date of hearing and has not turned up I find it impossible to postpone any further disposal of this case which has already been delayed inordinately.

2. In view of the order I propose to pass in this revisional applica?tion, it will be a sheer formality to require here a precise detail of the facts which had led to the prosecution of the respondents ending in their conviction by the trial Court. In a nutshell the petitioner was holding on lease an area of land measuring 700 kanals expiring in Kharif 1964. The petitioner had sublet the land to Ahmad Din (P. W. 2 and a few others for a period of five years from Kharif 1962 to Rabi 1967 by means of written document (Exh. K. A.). The lessees allegedly fell into arrears for payment of lease money and they had by means of a formal agreement (P. D.) surrendered possession of land in Rabi 1963 as well as the standing wheat crop in 70 acres in favour of the petitioner in adjustment of lease money outstanding against them. The respon?dents had allegedly trespassed into the land, harvested the wheat crop and, stacked the same at a thrashing floor in the nearby field of Shera. The petitioner made a written report (P. A.) to the Police on 1st of May, 1963. A number of witnesses were examined on the side of the prosecution to prove the charge against the respondents which the latter had repudiated as false. The accused respondents maintained that they were in posses?sion of the land as co‑sharers and they had shown the crop in question. A couple of witnesses were examined in defence. Learned Magistrate upheld the allegation of the petitioner that he was in occupation of the land and the wheat crop had been surrendered in his favour by Ahmad Din sub‑lessee (P. W. 2). The accused had failed to substantiate their counter‑version. Resultantly, the respondents were held guilty and were ordered to suffer rigorous imprisonment for six months each. As indicated above, the finding of learned trial Magistrate was set aside by Darned Additional Sessions Judge in appeal with the view that the respondents were co‑sharers in the land leased in favour of the petitioner. The petitioner had by way of contrivance sublet the land in favour of Ahmad Din P. W. 2 till Kharif 1967 although the lease in his favour was expiring in Kharif 1964. The petitioner had not come to the Court with clean hands. The agreement (P. D.) for surrender of possession of land and the wheat crop standing thereon executed by Ahmad Din P. W. 2 in favour of the petitioner was a bogus document and designed at avoiding a straight contest with the respondents in a Court of law for recovery of his share in the produce from the land. Possession of the petitioner over the land or that of Ahmad Din etc. is also not established by evidence. Khasra Girdawari which furnished best evidence on the question of posses?sion of either side over the land was not produced on the contrary. The respondents were shown in cultivating possession of the land in Khasra Girdawari. The respondents had filed a suit against the peti?tioner to challenge his assertion that there had been partition of the land which was decreed in favour of the respondents. Learned Additional Sessions Judge was also of the view that the offence of theft was not made out against the respondents as they had removed the crop under a bona fide assertion of right. The parties should have been referred to civil Court for adjudication of their rights as a serious question of title was involved.

3. The petition must fail for more than one reason. The findings of learned Additional Sessions Judge acquitting the accused respondents are based on proper consideration of evidence and correct application of1A principle of law tbat in case of bona fide dispute over the property parties should not be encouraged to have recourse to criminal Courts when the point at issue can more appropriately be decided in civil Court. High Court acting in revision under section 439, Cr. P. C. is bound to accept B the finding of lower Court unless there is any error of law or procedure vitiating that finding or unless there are any special circumstances appear?ing on the record to show that in arriving at this conclusion of fact the lower Court had misapprehended the evidence. Revisional jurisdiction when invoked by a private complainant against an order of acquittal against which Government has right of appeal should be exercised only in exceptional cases where interest of justice required such interference for the purpose of correction of a manifest illegality. Reference in this behalf he made to the judgment of Supreme Court in Feroze Khan v. Ghulam Nabi (P L D 1966 S C 424). It was ruled in that case that in cases of revision petition from acquittal where the State has not thought fit to challenge the acquittal by an appeal the Courts should be very slow to interfere unless non‑interference would involve an endorsement of a patently unfair order or one which leads to miscarriage of justice if the view taken by the Courts below is reasonably possible on a consideration of all the facts and circumstances of the case, then the entertainment of a feeling that an alternative view of the evidence might have been taken would not justify the superior Court in setting aside an order of acquittal. The governing consideration must always be whether in relation to the proved facts and circumstances justice has been done in accordance with law. Reference be also made to the judgment of High Court, Karachi in Zafarullah Khan v. Fahim‑ud‑Din Khokhar and another (1976 P Cr. L J 494), where the learned (late) Chief Justice and with reference to several authorities on the point inclusive of the case of Feroze Khan held that interference by the High Court would be justified if the conclusion reached upon the evidence was not reason?able or was arrived at by a mode of reasoning contrary to the principle of judicial appraisal of evidence. Besides, this long delay of 12 years in the disposal of revisional application is also a factor in favour of the respondent‑accused. It will not be reasonable nor expedient in the interest of justice to subject the accused‑respondents to a hazard of retrial and expect them to defend the charge which was laid against them in the year 1963. Retrial after long time of the occurrence has always been looked upon with disapproval in judicial authorities. In Mohammad Sadiq v. Lal Muhammad (1968 P Cr. L J 637) retrial was declined as the application for revision to challenge the order of dis?charge was beard after three years and no irregularity was also pointed ?out in the proceedings. In Allah Rakhio Khan v. Mohkum Din and others (1977 P Cr. L J 14), It was held that it would not be expedient in the interest of justice to direct a retrial of the case of murder after a lapse of ten years nor the High Court would interfere simply because different conclusion might have been reached on the same evidence. Reference be also made to another case Sardar Muhammad v. Sarwar and five others at page 504 of the above report. In that case retrial was not ordered inter alla for the reason that the revision al application came up for hearing after a period of 11 years.

4. In the result, I hold that finding of learned Additional Sessions Judge was not unreasonable or patently unfair nor it suffered from illegality. The order could not be interfered with even though a different conclusion may have been possible and the order of retrial of the case after 13 long years will be nothing short of abuse of process of Court. Dismissed. Revision petition dismissed