2026 PLP 723 (MLD)

Salah-ud-Din, J.

Appellant namely Mian Rahman Badshah has filed instant criminal appeal under section 8 of Illegal Dispossession Act, 2005 ("Act of 2005"), against order/judgment of acquittal dated 10.01.2025 passed by learned Additional Sessions Judge/I.Z.Q, Malakand at Batkhela, whereby on dismissal of complaint of appellant/complainant, he has acquitted accused/respondents Nos. 2 to 6 from the charges levelled against them by invoking emergent provision of section 265-K, Cr.P.C.

2. Arguments of learned counsel for appellant/complainant were heard in considerable detail and available record perused with his able assistance.

3. A bare look of record would reveal that during pendency of complaint before learned trial Court, learned counsel for respondents then accused submitted an application for acquittal of their clients mainly on the ground that on the basis of so far recorded evidence in the form of PW-1 and PW-2 there was zero possibility of conviction of accused, even if prosecution was allowed to adduce the remaining evidence. It was also alleged in the application that the matter between the parties was purely of civil in nature and in respect of property-in -dispute, a civil suit had already been decreed in favour of present respondents then plaintiffs. Aforesaid application was allowed by learned trial Court by dint of impugned order dated 10.01.2025 and thereby an order with respect to acquittal of respondents/accused was made by invoking provision of section 265-K, Cr.P.C.

4. It is part of record that the appellant then complainant filed a complaint against present respondents then accused, alleging therein, that he was an ancestral owner of the property in dispute. It was asserted in the complaint that it was on 08.01.2024 at 03:00 hours when present respondents duly equipped with firearms came to the property and dispossessed the complainant therefrom. In addition to complainant, subject occurrence of dispossession was claimed to have been witnessed by Said Badshah, Bacha Mian, Aleem Shah and Muhammad Shah.

5. Sole point for determination before this Court would be as to whether it was the same property in respect of which civil litigation had earlier been taken place or otherwise? As per record, appellant/ complainant claimed ownership of the property on the strength of an exchange deed dated 20.8.1993, inter-se executed between father of accused-party namely Sultan Mehmood and complainant. A civil suit titled "Mian Rahman v. Sultan Mehmood through LRs" was filed by complainant then plaintiff in respect of an exchange deed, however, same deed at first instance was discarded and rejected by learned civil Court vide its judgment and decree dated 28.3.2023 and appeal filed against the ibid judgment and decree was also met the same fate by dint of judgment and decree of the learned appellate Court dated 27.10.2023. Same fact of civil litigation in respect of the property-in-dispute had also been evident from testimony of one Said Badshah, who was examined in Court during complaint proceedings as PW-1. He deposed in his cross-examination that in respect of property in dispute a civil suit had already been decided by civil Court and appeal there-against was also dismissed by appellate Court and it was present appellant who had challenged judgments and decree of learned two Courts below before this Court. Same is the case with statement of Badshah Mian, PW-2, who was none else but real brother of appellant/complainant. He made the following admission his cross-examination, in respect of pendency of civil suit regarding the property in dispute: - In view testimonies of both these two PWs, it is crystal clear that the property in dispute was the subject-matter of aforementioned civil suit and complainant/ appellant has not been able to prove his ownership and possession over the same, what to talk of his alleged dispossession therefrom, therefore, in such circumstances, even if evidence of prosecution is recorded, still there was almost zero possibility of conviction of accused/respondents and which aspect of the case has expertly been put under his grasp by learned Judge of the trial Court, while rendering down the impugned order/judgment dated 10.01.2025, qua acquittal of respondents/accused, which is neither perverse nor arbitrary nor whimsical, hence, upheld and maintained, in all eventualities. Language of Section 265-K, Cr.P.C, plainly and clearly states that Court may acquit an accused person "at any stage of the case". Our jurisprudence on acquittal under section 265-K Cr.P.C is very rich. For sake of guidance, we consider it appropriate to refer to the recent case law. In case of "Abbas Haider Naqvi and another v. Federation of Pakistan and others" reported as PLD 2022 SC 562, whereby Hon 'ble apex Court has held as under: - "

11. First of all, we would like to state that there can be no cavil to the rule of practice and propriety, referred to by the High Court, that when the trial is near completion, the fate of the case should not ordinarily be decided under Section 265-K of the Cr.P.C.2 There may however be such exceptional circumstances which may justify departure from the said rule, as there is hardly any rule of practice which does not admit exception(s). Even otherwise, Section 265-K of the Cr.P.C. provides that the trial court can make an order of acquittal at any stage of the case, and such stage may be an initial stage of the case on taking cognizance before recording of the prosecution evidence,3 or it may be a later stage of the case after recording of some evidence of the prosecution.4 No absolute bar, in derogation of the law, can therefore be put on the statutory power of the trial court to entertain an application under Section 265- K, Cr.P.C. and decide upon its merits at a later stage of the trial if the exceptional circumstances of the case call for so doing to prevent the abuse of the process of court or to secure the ends of justice. The High Court has, however, failed to appreciate that the said rule has no application to a ground pleaded by an accused for his acquittal under Section 265-K of the Cr.P.C., which does not require appraisal of the prosecution evidence recorded during trial, such as, the ground pleaded by the Petitioners in the present case.

12. Ordinarily, an accused, who invokes Section 265-K5 Cr.P.C. for his acquittal, pleads that there is no probability of his being convicted of any offence in the case on any of the following four grounds: (i) that even if the facts alleged by the prosecution are taken to be true on their face value, they do not make out/constitute the commission of any offence by the accused;6 (ii) that there is no evidence or incriminating material on record of the case in support of the commission of the alleged offence by the accused;7 (iii) that the evidence or incriminating material collected during investigation in support of the commission of the alleged offence and proposed to be produced during trial is insufficient and, even if recorded, will not sustain conviction of the accused, of any offence in the case;8 and (iv) that the prosecution evidence so far recorded does not make out a case for conviction of the accused, of any offence in the case and the remaining prosecution evidence, even if recorded, will not improve the prosecution case against the accused in any manner." Other relevant cases, which merit mentioning here are Abdul Ghani v. The State (2020 P Cr. L J 1094) and Yasin Khan Baber v. The State (1995 P Cr. L J 1424).

6. An accused person, as a matter of right, is presumed to be innocent before trial unless the charge is proved against him/her. Acquittal at the trial gives rise to double presumption of innocence for an accused. An appellate Court needs to be cautious while considering the evidence and should avoid reversal of an acquittal, unless it finds that the acquittal is perverse, conjectural, arbitrary, jurisdictionally defective and prompted by misreading or non-reading of evidence. Even if a contrary view is formed on re-appraisal of evidence, it should not be used to disturb an acquittal, provided convmcmg evidence is available on the record to reverse acquittal. In this respect, reference may be made to the judgment of the Hon'ble Apex Court rendered in the case of Jehangir v. Aminullah and others reported as 2010 SCMR 491, where it was held: "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 reappraisement 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 material evidence; (b) misread such evidence; (c) received such evidence illegally". This principle was also followed in Muhammad Iqbal v. Sanaullah PLD 1997 SC 569, State v. Farman Hussain PLD 1995 SC 1, Ghulam Sikandar v. Mamaraz Khan PLD 1985 SC 11, Ahmad v. Crown PLD 1951 FC 107, Abdul Majid v. Superintendent of Legal Affairs, Government of Pakistan PLD 1964 SC 426, State v. Bashir PLD 1997 SC 408, Muhammad Sharif v. Muhammad Javed PLD 1976 SC 452, Shahzado v. State PLD 1977 SC 413; Farmanullah v. Qadeem Khan 2001 SCMR 1474 and Khadim Hussain v. Manzoor Hussain Shah 2002 SCMR 261."

7. In view of what has been discussed above, this Court has reached to an irresistible conclusion that the learned trial Court has rightly acquitted respondents/accused under section 265-K, Cr.P.C. I find instant appeal being devoid of any merits, same is accordingly dismissed, in limine. Needless to highlight, findings recorded hereinabove shall have no bearing on the civil revision petition, if any, filed by petitioner/ complainant against judgments and decree of learned two Courts below, qua dismissal of his main civil suit. JK/18/P Appeal dismissed.