IN THE HONOURABLE LAHORE HIGH COURT LAHORE
Criminal Appeal No._________________/2019
District Date of Filing Appeal filed by Stamp
complainant or by his
agent/ counsel
Sheikhupura Fahad Majeed Rathor
Tehsil Ferozwala Advocate High Court
Office No.1 3rd Floor
Tayyab Plaza 13 Fane
Road Lahore
3520291258381
Malik Asad S/O Mohammad Yaqoob R/O P.O Khas Kadlathi District Sheikhupura
VERSUS
1. Mian Manzoor
2. Mian Zhoor
3. Mian Nasir Mehnood
4. Mian Shafique
5. Mian Asif
All sons of Mian Ghulam Hussain All Resident of New Shalimar Industries Pvt Ltd 20 K-M
Lahore Shekhupura Road.
6. The State
FIR No. 166/2018, Dated 06-02-2018 Offence U/S 379,427 of PPC, P/S Factory Area
APPEAL AGAINST ACQUITTAL UNDER SECTION 417 OF Cr.P.C FOR SETTING ASIDE ORDER
DATED 15-06-2019 PASSED BY LEARNED JUDICIAL MAGISTRATE FEROZWALA BY WHICH THE
RESPONDENTS ARE ACQUITTED UNDER SECTION 249-A OF Cr.P.C
Respectfully sheweth:-
1. That the addresses of the parties are correct for the purpose of effective service of
process of Honourable court.
2. That the facts in precision for adjudication are that the appellant has been working as
manager in basher pipe industries for the last 11 years and the respondents being the
owners of new Shalimar steel industries planned to usurp valuable property owned by
the masters of appellant, however the respondents filed a false and frivolous suit
against the masters of appellant through which they claimed a passage over a specific
part of the property owned by the masters of the appellant on 17-03-2014 and got stay
order thereof. The copies of said suit and stay order is attached herewith as annexure
A&B.
3. That the respondents filed subsequent two suits against the masters of appellant in
respect of the same subject matter which have been stayed under section 10 of CPC
vide order dated 16-05-2019. The copies of both the subsequent suits and order dated
16-05-2019 are attached herewith as annexure C,C1,C2.,
4. That the learned civil judge Ferozwala vide order dated 25-01-2018 vacated stay order,
the filed appeal against said stay vacating order dated 25-01-2018 which was accepted
by the learned Additional district judge Ferozwala vide order dated 26-04-2018. The
copies of stay vacating order and appeal and order dated 26-04-2018 are attached
herewith as annexure. D,D1,D2.
5. That during the proceedings of said appeal the respondents produced a false and
forged document of Mutation No.415 of 1972 by which a passage was shown over the
property owned by the masters of appellant, however the respondents obtained the
order dated 26-04-2018 by which their stay was confirmed over the property owned by
the masters of the appellant, however when the masters of appellant got verification of
mutation No.415 of 1972 it was found forged and false, moreover the masters of
appellant filed complaint against the respondents under section 476 of Cr.P.C which is
pending before the learned Additional District Judge Ferozwala. The copies of said
mutation and complaint are attached herewith as annexure E,E1.
6. That the respondents being master mind planned a crime and on 30-01-2018 stole the
gate installed on the property of the masters of appellant through armed accused, for
detail the copy of FIR is attached herewith as annexure F.
7. That the respondents used their undue influence over the investigation and successfully
got very weak challan with insufficient evidence and charge.
8. That the respondents filed application before DPO Shekhupura and claimed a passage
over the property owned by the masters of appellant, however the DPO send a letter to
DC Shekhupura who sent his report alongwith report of patwari, that the claim of
respondents is false and there is no common passage over the said property. The copies
report by DC, Patwari, and DPO are attached herewith as annexure.G,G1,G2.
9. That the investigation officer being influenced by the respondents did not recover the
said Gate and submitted a weak report under section 173 of Cr.P.C. The copy of Challan
is attached herewith as annexure H.
10. That the partial investigation could only make site map, Photographs of stolen gate, aks
shajra, report patwari, however the investigation officer intentionally neglected to
record the statement of duty officer who visited the scene of occurrence alongwith
investigation officer, recovery of stolen property, weapons, crane, car, used in the
commission of offence, find out motive, arrest of remaining accused, add, charge with
appropriate offences, The copies of site map, recovery of photographs, aks shajra are
attached herewith as annexure H1,H2,H3.
11. That the complainant alongwith other eye witness appeared before the learned trial
court and got recorded true facts of the case as PW-1 and PW-2 by which the role of the
respondents/ accused was narrated, however the Investigation officer and scribe of FIR
got recorded their evidence as PW-3 and PW-4. The copies of evidence of the appellant
and witnesses are attached herewith as annexure I.
12. That the appellant filed application under section 227 of Cr.P.C for amendment of
charge and application for re-examination of PW-4 and the case was fixed for arguments
on said applications, however the respondents filed application under section 249-A of
Cr.P.C. the copies of said applications are attached herewith as annexure J,J1,J2.
13. That the learned trial court took cognizance on application under section 249-Aof Cr.P.C
and passed impugned judgment dated 15-06-2019 by which five nominated accused
were acquitted from the charge. The copy of order under appeal is attached herewith as
annexure K.
14. That the contents of application under section 249-A of Cr.P.C are misleading as in Para
15 the respondents alleged the removal of said gate by police in compliance court order
in a contempt application, however the SHO was proceeded ex-partee and the said
contempt petition was dismissed being infructuous, moreover the respondents mislead
the court through false assertion in the application under section 249-A of Cr.P.C. The
copies of said contemptpetition and order dated 26-04-2018 are attached herewith as
annexure K1.
15. That the appellant is seeking setting aside order dated 15-06-2019 inter alia on the
following grounds.
GROUNDS
1. That the order under appeal was passed in haste and without application of judicial
mind, as the complainant was ready to prove his case and to lead evidence but the
complainant was deprived of his right, as it is laid down by the Honourable apex court in
Pcr.L.J 2017 N 212 Lahore, that when the prosecution is ready to prove his case an
opportunity must be given to him to prove his case.
2. That the principle of double presumption of innocence is not applicable to the acquittal
under section 249-A of Cr.P.C.
3. That it is the duty of the prosecution to prove his case beyond the shadow of doubts but
the order under appeal deprived the complainant to perform his duty, hence liable to be
set aside.
4. That the sufficient material available on record that the respondents designed and
planned the commission of offence and liable be prosecuted and charged under the
principle of vicarious liability under section 149 alongwith other enabling provisions of
PPC but the learned trial court ignored the principle of law and inspite of concluding the
trial on merits acquitted the respondents from charge.
5. That if the application for the amendment of charge is accepted and the respondents
held liable for vicarious liability under section 149 and 109 of PPC, it would be a
contradicted judgments.
6. That the strength of the evidence available on record proves that the armed accused
persons along with others on 26-01-2018 forcibly entered in the property possessed by
the complainant and by the deadly arms wrongfully restrained the complainant and
other, threatened the complainant and other to commit theft and to cause death and
thereafter on 30-01-2018 repeated the same crime and took away the said gate, having
engaged with the other co-accused, consequently the accused persons are liable to be
tried under sections,382, 452, 506-B, 109, 148, 149 of PPC and may be punished
accordingly.
7. That the learned trial court while ignoring the evidence on record, by which the
respondents may be convicted under the principle of vicarious liability, as the
respondents are the only beneficiaries for the commission of alleged offences but the
learned trial court acquitted the respondents in haste.
8. That the apex court laid down a rule in 2019 YLR Note 12 SC (AJ&K) the trial court is
empowered to amend the charge on the strength of evidence, came on the record at
any stage and if the charge is amended and respondents held liable for vicarious liability
the impugned order would be contradicted with later.
PRAYER
In view of above, it is most respectfully prayed that the above titled appeal against
acquittal may very kindly be accepted and the order dated 15-06-2019 under appeal may very
kindly be set aside and an opportunity may very kindly be given to the appellant/ complainant
to lead the evidence and to prove his case against the respondents in the supreme interest of
justice.
Any other relief which the learned court may deem fit may also be awarded.
Applicant Through:-
