IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acquittal Appeal No.S-22 of 2007
Appellant/Complainant : Haji Bashir Ahmed s/o Ghulam Nabi Shaikh
Through Mr.Habibullah Ghouri, Advocate
Respondents : Through Mr.Faiz Muhammad Larik,
Advocate for private respondents
Mr.Raja Imtiaz Ali Solangi, A.P.G
Date of hearing : 24.09.2018
Date of decision : 24.09.2018
J U D G M E N T
IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 05.07.2007, passed by learned 1st Civil Judge & Judicial Magistrate, K.N.Shah, whereby the private respondents were acquitted of the offence for which they were charged.
2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that; the private respondents allegedly obtained loan and purchased fertilizer from the appellant/complainant, as token of its return, issued different cheques in his favour. Those cheques when were presented for encashment before the concerned Banks were bounced. The appellant/complainant then was threatened by the private respondents to be killed when he approached them for return of his money, for that the present case was registered.
3. After usual investigation, the private respondents were challaned by the police before the court of law. At trial they did not plead guilty to the charge and the prosecution to prove it, examined PW-01 appellant/complainant, produced through him FIR of the present case, photo stat copies of the cheques allegedly bounced with bank memos, PW-02 Allan, PW-03 Mashir Imam Bux, produced through him memo of place of incident, PW-04 Siraj-u-ddin, PW-05 SIO/ASI Bakhshal and then closed the side.
4. The private respondents in their statements recorded u/s.342 Cr.PC denied the prosecution allegations by pleading innocence by stating that they have been involved in this case falsely by the complainant. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.
5. On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the charge by way of judgment, which the appellant/complainant has impugned before this Court, by way of instant Criminal Acquittal Appeal, as stated above.
6. It is contended by learned counsel of the appellant/complainant that the learned trial Court has acquitted the private respondents of the charge on the basis of improper appreciation of the evidence and without lawful justification. By contending so, he sought for conviction for the private respondents for the above said offence.
7. Learned counsel for the private respondents and learned A.P.G for the State have supported the impugned judgment by contending that it is well reasoned.
8. I have considered the above arguments and perused the record.
9. As per appellant/complainant, the private respondents not only purchased from him fertilizer but obtained from him money in cash to make purchase of the wheat and then issued cheques in his favour, which were bounced, when were presented before the concerned Banks for encashment. If it was so, then it could hardly be said that the cheques so were issued by the private respondents in favour of the appellant/complainant were for repayment of the amount under purchase of fertilizer and/or loan to make purchase of wheat but as “security” to satisfy the above said transaction.
10. In case of Mian Allah Ditta vs. the State (2013 SCMR-51), it has been held by the Honourable Supreme Court that;
“circumstances indicated that cheque in question was not issued towards repayment of some outstanding loan or fulfillment of an existing obligation instead it had been issued to meet a possible future obligation, therefore, foundational elements of S.489-F, P.P.C were prima facie missing”.
11. If for the sake of arguments, it is believed that the cheques were issued by the private respondents dishonestly and fraudulently to deprive the appellant/complainant of his money due against them on purchase of the fertilizer or as loan to make purchase of wheat, even then they could not be convicted for the alleged offence mainly for the reason that no cheque, so issued by the private respondents in original, was produced by the appellant/complainant at trial under the pretext that those have already been produced by him before the Court of learned Senior Civil Judge, K.N.Shah, in a Civil Suit which he has filed there against the private respondents. The photo stat copies of cheques hardly carry with it presumption of correctness.
12. In case of Hyderabad Development Authority through M.D, Civic Centre, Hyderabad vs. Abdul Majeed and others (PLD 2002 Supreme Court-84), wherein it has been held by the Honourable Supreme Court of Pakistan that;
“Tendering of photo copy of document--‑Validity‑‑‑Such document could not be taken into consideration‑‑? Merely by tendering a document in evidence, the same had no evidentiary value unless its contents were proved according to law”.
13. As per SIO/ASI Bakhshal, he recorded 161 Cr.PC statements of the PWs with delay of one month. No explanation to such delay is offered by the prosecution. In that situation, no much reliance could be placed upon the evidence of any of the witness, so examined by the prosecution at trial.
14. In case of Abdul Khaliq vs. the State (1996 SCMR 1553), it was observed by Hon’ble Court that;
“----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.PC. Reduces its value to nil unless delay is plausibly explained.”
15. In above said circumstances, the learned trial Court was right to record acquittal of the private respondents by extending them benefit of doubt. Their acquittal carries with it double presumption of innocence and could only be interfered with it by this Court, as it is not found to be arbitrary or cursory.
16. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble Court that;
“The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities”.
17. In view of facts and reasons discussed above, the instant criminal acquittal appeal fails, and it is dismissed accordingly.
JUDGE
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