2007 PLP 1096 (YLR)

MUHAMMAD SADIQ LEGHARI, J.

Present appeal assails the acquittal of respondents in a case registered against them for offence under sections 147/ 452/337-A(i), P.P.C. at Police Station, Ferozabad, Karachi by the learned XIII-Judicial Magistrate, Karachi-East on 7-7-2005.

2. The facts appearing from the record are that applicant Nisar A. Meer and the respondents Nos.1 to 4 are members of Pakistan Carpet Manufactures and Export Association and respondents Nos.5 to 8 are its employees. The appellant was Chairman of the Association. He however did not participate in the elections for the new body held on 30-9-2003.

3. It is stated by the parties' counsel that about three months after the election litigation started. The respondents claim that the charge of Chairman was taken over by the newly elected person Abdul Ghafoor Sajid.

4. However on 26-7-2004 Nisar A. Meer the former Chairman of the Association lodged F.I.R. with Ferozabad Police alleging therein that due to dispute relating to the fresh election he continued as Chairman. On 26-7-2004 Bashir Ahmed Chowkidar of the office informed him on telephone that Naeem Sajid and Salim Langra along with others had taken over the office forcibly. On receiving that information he went at the office and found members of staff namely Chowkidar Bashir Ahmed, Herjeewan, Safdar Irshad standing outside. One other Chowkidar and armed guard of -opposite group were also present there. They declined to open the lock. Naeem Sajid, Ashraf, Shahzad, Abdul Salam Hashmi, Rizwan, Saadat, Shaikh Anwar were also available there. He further alleged that they had thrown out the office equipment i.e. Computer, fridge, typewriter, fax machine, telephone sets, etc. etc.

5. After the investigation respondents were sent for trial. They pleaded not guilty to the charge. After that prosecution examined complainant Nisar A. Meer, Khawaja Khawar Amin, Mushtaq Aziz, Safdar Irshad and S.-I. Sarfaraz. The submission of the accused were recorded under section 342, Cr.P.C. On 7-7-2005 judgment of the acquittal of the respondents was passed. That has been assailed.

6. After service of notice upon respondents, arguments have been heard. Mr. Zafar Ahmed Khan, Advocate appearing for appellant contended that evidence on record proves that the respondents had trespassed into the bungalow/office of the petitioner illegally and caused injury to Mushtaq Aziz, but the learned trial Court acquitted them illegally. He further contended that the witnesses had deposed that the respondents had forcibly occupied the office break opening the locks applied by the appellant, but the learned trial Court neglected that evidence by expressing that the appellant could not prove to be the Chairman and occupant of the office. He further contended that Mushtaq Aziz had himself deposed about the injury, yet his evidence was not believed. According to the learned Advocate the acquittal is illegal and deserves to be set aside and converted into conviction.

7. Mr. Badar Munir, Advocate appearing on behalf of respondents has contended that the tenure of the appellant had expired and fresh election held on 30-9-2003. Whereafter neither he had right to hold the office nor he was holding it. He further contended that in fact Abdul Ghafoor Sajid was elected as. Chairman and he had taken over the office immediately after his election. Litigation in respect of the election was going on but he continued as Chairman and is still continuing. He further argued that none of the witnesses A named in the F.I.R. were examined in support of the prosecution and the injuries on the person of Mushtaq Aziz were not proved, as no doctor was examined.

8. It is admitted fact that the tenure of the appellant had expired and new elections were held. Whatever the position may be in between the parties having contested the elections but the appellant was admittedly not in the run for the seat of Chairman as he did not participate in the elections. The presumption would be that new Chairman had taken over the office. No presumption can be in favour of appellant that he was continuing and acting as Chairman till 24-7-2004. That fact has been considered in the impugned judgment in words that the appellant/complainant failed to establish that he was the Chairman. In the circumstances when witnesses named in the F.I.R. were not examined and the presumption is in favour of newly elected Chairman, the allegation of trespass levelled by the appellant has rightly been disbelieved.

9. As regards the injuries to Mushtaq Aziz, without medical evidence, it could hardly be believed that those injuries were received from some unfriendly hands.

10. In view of the above, the acquittal orders does not warrant to be interfered with. The appeal is dismissed at katcha peshi stage. H.B.T./N-9/K Appeal dismissed.