ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr. Acq. Appeal No.S-63 of 2019
Date |
Order with signature of Judge |
1.
For
orders on office objection at flag ‘A’
2.
For
hearing of main case
10.06.2018.
Pir
Imtiaz Ahmed Shah Jilani, Advocate for the Appellant
Mr.
Khalil Ahmed Maitlo, DPG
O R D E R
Adnan-ul-Karim
Memon, J:- Basically, the
Appellant has called in question the order dated 25.03.2019 passed by the learned 3rd Judicial
Magistrate, Khairpur, in Criminal Case
No.89/2018, whereby private Respondent
namely Ramz Ali has been acquitted from the charge of section 489-F PPC.
The
Appellant being aggrieved by and dissatisfied with the acquittal of the private
Respondent has filed the present Acquittal Appeal, before this Court on
22.4.2019 on the premise that he entered into an agreement with him for getting
Government job in Education Department, Government of Sindh. Per Appellant, he
paid Rs.200,000/- to the Respondent No.1 for the aforesaid purpose, however, he
could not fulfill his part of contract and failed to arrange the said job for
the Appellant and kept him on hollow hopes and on demand of his payment, the
Respondent No.1 issued a cheque of Rs.200,000/- dated
15.1.2018 UBL Branch Kotri Kabeer), in
his favour, however when he produced the aforesaid cheque for encashment in the
concerned Bank, the same was dishonored, on the endorsement that the account of
the private Respondent was closed and such memo of dishonored of cheque was
issued by the Manager of the Bank. Appellant being aggrieved by and
dissatisfied with the aforesaid criminal conduct of the Respondent No.1, lodged
FIR No.48 of 2018 against him on 14.8.2018, under section 489-F P.P.C. with
Hingorja Police Station. Investigating Officer, after usual investigation
submitted charge sheet against the Respondent No.1 before the competent court
of law. Learned trial Court after framing the charge proceeded against the Respondent
No.1 and after recording the examination in chief of the Appellant, acquitted
him from the charge by exercising powers
under section 249-A, Cr.P.C. vide order dated 25.3.2019.
2. Pir
Imtiaz Ahmed Shah Jilani, learned
counsel for the Appellant has mainly contended that the impugned Order is bad
in law and on facts; that impugned Order is in violation of Article 10-A of
Constitution, 1973; that acquittal of private Respondent has caused grave
miscarriage of justice; that the
appointment order of peon was required to be issued in his favour by the
Respondent No.1 but he failed to secure the job, thus was called upon to
explain his position either to ensure the appointment of the Appellant in
Government Service or refund the said amount to the Appellant but of no use,
thus compelling the Appellant to institute a criminal proceedings against him. Learned counsel
emphasized that there was an oral Agreement between the parties with regard to
secure the aforesaid appointment in Government service on certain terms and
conditions, which needed to be enforced under the law; that the private Respondent
recoiled from the Agreement/Iqrarnama
and did not perform his part of contract and on demand of returning of the aforesaid amount, he issued a cheque of
Rs. 200,000/-.in
his favour, which was later on dishonored, thus attracted section 489-F, P.P.C;
that the learned trial court acquitted the Respondent No.1 on the basis that
there is no probability of his conviction if the entire evidence is recorded and failed to consider that Appellant had a
cause of action against the Respondents No.1 to institute the criminal case
under section 489-F P.P.C against him on
the premise that a cheque issued in his favour was later on bounced by the
concerned Bank, thus the case of the Appellant was based on prima-facie
evidence and separate from the civil liability as depicted in the impugned
order: that the learned trial Judge has failed to appreciate that the section
489-F, P.P.C is prima-facie offence for which the Respondent No.1 was/is liable
to account for and cannot be absolved from his illegal action; that the learned
trial Judge erred in exercising the powers conferred upon him under section
249-A Cr.P.C and wrongly acquitted him from the Charge without completing the
evidence of the parties, which impugned order is not sustainable in law; that
the learned trial Judge has failed to appreciate that the accused cannot be acquitted from the criminal case, without recording
evidence and hearing the prosecutor and complainant of the case; that it was
also ignored in the impugned judgment that the Respondent No. 1 can be
convicted for offence under section 489-F, P.P.C, if the ingredients of the
aforesaid law attracted, which could only be thrashed out after recording the
entire evidence of the parties; that the matter was required to be adjudicated
by the learned trial court on merits rather than acquittal of the Respondent
No.1 on technical grounds. Per learned Counsel the learned trial Judge in his
findings in the Impugned Order erred in holding that there is no probability of
the accused being convicted of the offence, without considering various aspects
of the material produced before him in the shape of documentary evidence, which
were sufficient to proceed the matter on merits; that the learned trial court
in his conclusion held as under:-
“In view of above discussed facts and
provisions, my observation is that this case is hit by the provision of law of
contract act 1872 section and also does not fall the ambit of section 489-F of
PPC as ingredients are settled by the Honourable Supreme Court of Pakistan in
case law 2010 SCMR 608 one of them is (b) to fulfill an obligation (which in a
wide term inter alia applicable to lawful agreements, contract, services,
premises by which binds a person to some performance), the consideration of this
agreement is illegal and can not be enforced the statement of complainant also
recorded in which he admitted that he paid rupees to accused for job for the
post of peon in education department, the illegal contract is not enforceable
same I hit by the section 24 of contract
act of 1872.
I am of the considered opinion that the act
of giving and taking bribe is also an offence. Rich and wealthy people get jobs
in lieu of money whereas poor people keep waiting for jobs to get but due to
corruption such people are deprived of their jobs on merits in our country
which is serious concern. This agreement is also against the Constitution of
Islamic Republic of Pakistan 1973. Now it is time to end and finish corruption,
. Law does not protect criminals as it is Natural justice and principle of
equity that “Who he seeks equity must do equity”. Another principle is that
“who he seeks equity must come with clean hands”.
Heard Learned ADPP And Defense Counsel I
have reached on Conclusion as under:-
08.
In the given situation and in the light of above observation and the available record, I find myself convinced that there
is no probability of conviction of the accused
in future even if the entire evidence is recorded. Hence it would be an exercise
in futility to proceed with the case. Therefore, the accused Ramz Ali s/o Khan Muhammad Thebo I acquitted U/S
249-A, CR.P.C of the charge under Sections
489-F, of P.P.C. The accused is pr5esent on bail and his bail bond stands cancelled and
surety is discharged accordingly”
Learned
counsel further contended that there is no reasonable ground to believe that
the Respondent No.1 has not committed the offence as alleged in the FIR; that the learned trial Court has not heard
the complainant and prosecutor, while passing the impugned order of acquittal;
that no application under section 249-A Cr.P.C has been moved by the Respondent
No.1 but the learned trial Court exercising its powers, acquitted him, without hearing the parties; that perusal
of case diaries reveals that respondent’s side delayed to cross-examine the
prosecution witnesses; that the learned trial Court has examined only
complainant and did not give him chance to produce his witnesses; that the
complainant has fully supported the prosecution case in his evidence but
learned trial court gave weight to the
false statement of respondent’s side; that learned trial Court has not applied
its judicious mind at the time of passing the impugned order because it is
based on mere presumption, assumption and inference which is not warranted by
law. He
lastly prayed for setting aside the Impugned Order dated 25.3.2019 passed by
the learned trial Court; hence the matter may be remanded to decide the lis
between the parties on merits. In support of his contention learned counsel for
the appellant placed reliance on the case of Asif Iqbal v/s District and Sessions Judge, Khushab and others
(2011 SCMR 720).
3. During
the course of arguments, I put a query from the learned counsel for the
Appellant that as to how the criminal case could be lodged by the Appellant
before the learned trial Court, in view of the void Agreement? He in reply to
the query has submitted that this is an admitted amount mentioned in the verbal
Agreement/Iqrarnama; therefore on the basis of this admission, he issued a
cheque in his favour to return the aforesaid amount and the same was not
encashed on the premise that the account of the Private respondent was closed,
which amounts cheating, thus attracted the penal action against the private
Respondent and the matter was liable to be decided on merits.
4. I
have heard learned counsel for Appellant, briefly on the point of
maintainability of the present Criminal Acquittal Appeal and perused the
material available on record and case law cited at the bar.
The
vital questions that clinched the controversy in hand are as follows,
(i) Whether
the charge
against Private Respondent was groundless?
(ii)Whether
there was no probability of the Respondent No.1 to be convicted of offence
under section 489-f PPC?
(iii)Whether the respondent was rightly acquitted from the aforesaid
charge under section 249-A Cr.P.C?
5. To
appreciate the aforesaid factum of the case and law cited supra, let notice be
issued to the private Respondent as well as learned APG for a date to be fixed
by the office, in the meanwhile private Respondent is directed to furnish
security in the sum of Rs.100,000/- (Rupees One Lac) and
PR bond in the like amount, with the Additional Registrar of this court within
a period of two weeks from the date of this order.
JUDGE