Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S – 217 of 2019

 

 

Date of hearing        :           20.12.2019 & 23.12.2019.

 

Date of judgment     :           23.12.2019.

 

 

Mr. Ghulam Hussain Abbasi, Advocate for appellant / complainant.

Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General.

 

 

J U D G M E N T

 

 

NAIMATULLAH PHULPOTO, J. – Through this Acquittal Appeal, appellant / complainant Khair Muhammad has impugned the judgment dated 30.10.2019. Respondent / accused Imdad Ali son of Ayoob Solangi was tried by learned Judicial Magistrate-II, Naushahro Feroze in Criminal Case No. 255 of 2019 (Old No.168 of 2019) for offence under Section 489-F, PPC. On the conclusion of the trial, vide judgment dated 30.10.2019, above named respondent / accused was acquitted by the trial Court.

2.         Brief facts of the prosecution case, as reflected in the judgment of the trial Court, are as under:

“Brief facts of the prosecution case as per FIR are that on 11.07.2019 at about 15:00 hours, complainant Kher Muhammad lodged FIR after seeking directions from the Court of Honorable 2nd Additional Sessions Judge, Naushahro Feroze alleging therein that on 11.10.2017, he was available at his otaq situated at village Andal Machi where accused Imdad Ali came there and done business of 250 sacks of wheat each sack amounting Rs.2550/= of total consideration of Rs.6,37,500/= in presence of witnesses namely Ghulam Hussain and Abdul Sattar in rebuttal accused would pay said amount to the complainant on 10.06.2018 as such agreement was executed on 30.10.2017, in case of failure of non-payment of cash amount accused would give his one acre bearing survey No.208 situated at deh Moria. Thereafter, on due date of payment of amount, accused Imdad had not stand by on his own statement meanwhile complainant filed civil suit before the court of Honorable 2nd Senior Civil Judge Kandiaro. On 16.10.2018 at about 11:00 hours, accused Imdad had issued two cheques bearing Nos.1352274699 and 1352274700 of amounting Rs.4,00,000/= each of dated 30.10.2018 and 20.11.2018, respectively of Allied Bank Kandiaro, in favor of complainant at court building Kandiaro which went dishonored on its presentation due to insufficient balance in the account of account holder. Hence, complainant lodged instant FIR.”

            FIR was recorded vide Crime No.129/2019 registered at P.S Kandiaro, District Naushahro Feroze for offence under Section 489-F, PPC.

3.         On the conclusion of the investigation, challan was submitted against the accused under the above referred section.

4.         Trial Court framed the charge against the accused at Ex.02. He did not plead guilty and claimed to be tried.

5.         At the trial, prosecution examined four (04) prosecution witnesses. Thereafter, prosecution side was closed.

6.         Statement of accused was recorded under Section 342, Cr. P.C, in which accused claimed false implication in this case and denied the prosecution allegations. Accused did not lead evidence in his defence and declined to give statement on oath in disproof of prosecution allegations.

7.         Learned trial Court after hearing learned counsel for the parties and assessment of the evidence, vide judgment dated 30.10.2019, acquitted the above named accused.

8.         Complainant being dissatisfied with the acquittal of the accused has filed this appeal.

9.         Learned advocate for the appellant / complainant argued that father of the appellant / complainant had given loan of Rs.6,37,500/- to the respondent / accused, but he could not fulfill his obligation and a cheque issued by him was dishonoured on presentation. It is further argued that prosecution case was based on documentary evidence, but trial Court ignored such evidence and recorded acquittal without application of the mind. Lastly, it is argued that judgment of the trial Court was perverse and arbitrary and acquittal may be converted to the conviction.

10.       Mr. Zulfiqar Ali Jatoi, learned Additional P.G submitted that there is mention of agreement in between appellant / complainant and respondent / accused in the evidence of the complainant, but said agreement has not been produced in the evidence. In fact, there was agreement in between the father of the appellant / complainant and respondent / accused, not in between appellant / complainant and respondent / accused. Agreement was cited in presence of PW Ghulam Hussain, but he has not been cited as a witness. There are material contradictions in the evidence of the PWs. It is submitted that appeal is without merit and rightly acquittal has been ordered by the trial Court.

11.       I have carefully perused the impugned judgment and relevant record. It appears that trial Court, vide judgment dated 30.10.2019, acquitted the accused mainly for the following reasons:

“10. Moreover, complainant has introduced new fact in his cross examination that said cheques were issued by the accused to the father of complainant as his father had filed suit for recovery of amount of in the Court of Honorable 2nd Senior Civil Judge, Kandiaro thereafter his father had withdrawn from said suit. In this respect, I have fortified my view from the case law reported as Usman Ali v. Additional Sessions Judge/Ex-officio Justice of Peace Toba Tek Singh and 04 others(2016 PCrLJ 323) wherein Honorable Lahore High Court has held as below:

Penal Code (XLV OF 1860) ---

“---S. 459-F---Criminal Procedure Code (V of 1898), St. 22-A & 22-B--- Dishonoring of cheque---Contracture liability---cheque in question was issued by appellant in the backdrop of retirement arrived at between parties in terms of agreement in a criminal case registered under S. 489-F, P.P.C---Ex-officio Justice of Peace passed a direction for registration of FIR against appellant as cheque issued by him was dishonored---Order passed by Ex-Officio Justice of Peace was maintained by Single Judge of High Court---Validity---Cheque in question was given in crime of agreement and it was not issued to creates any liability as alleged in application for registration of case---Dishonored of such cheque did not make out offence under S. 489-F, P.P.C---Just to settle disputes with father of appellant, respondent moved frivolous application by way of concealing real facts and by doing so it was axiomatic that respondent did not approach court with clean hands---Respondent knocked the doors of Ex-Officio Justice of Peace with mala fide intention and with ulterior motive in order to involve appellant in criminal proceedings to resolve same private vengeance--- Division Bench of High Court set aside the orders passed by Single Judge High Court and that of Ex-Officio Justice of Peace--- Intra court appeal was allowed in circumstances.

11. Apart from this, PW-03 investigation officer ASI Riaz Hussain has deposed that he had arrested that accused Imdad from Ujjan patrol pump Kandiaro in presence of witnesses namely Abdul Sattar and Ghulam Hussain whereas complainant Kher Muhammad has contradicted the version of IO Raiz Hussain by deposing that he had got arrested the accused Imdad firstly then lodged the FIR against him meaning thereby police had started the investigation and arrested the accused prior to lodgment of FIR. Furthermore, complainant Kher Muhammad has deposed that he went to the concerned bank and obtained cheque return memos on said dishonored cheques whereas bank Manager Amanullah Jogi has contradicted the version of complainant by deposing that complainant Kher Muhammad had not come at his bank but Muhammad Daod had come there.

12. The flaw which fatal to the prosecution case is that complainant Kher Muhammad has shown the presence of other witness namely Ghulam Hussain at the place of incident on the day on occurrence but such witness was not produced by him during the course of evidence without advancing any justifiable reason for none his production therefore it would be presumed that prosecution has withhold the best piece of evidence which was available to them therefore adverse opinion within the meaning of Article 129 (g), Qanun-e Shahdat, 1984 could be drawn against the prosecution that if said witness would has been produced for evidence then he would not support the case of prosecution. Respectfully reliance is placed upon an authority reported as Asad Bashir v. the state (2018 YLR Note 179).

13. The above contradictions are sufficient to create the doubts in whole prosecution story in the circumstances when eye witnesses are not uniform in their respective statements and benefit of it always go in favor of accused not as a matter of grace but as matter of right. Respectfully reliance is placed upon an authority reported as Muhammad Zaman v. The State and others (2014 SCMR 749). Reliance is also placed on an authority reported as Muhammad Mansha v. The State (PLJ 2019 S C (Cr.C) 138), wherein Honorable Supreme Court of Pakistan has held as below:

“---Giving the benefit of doubt to an accused, it is not necessary that there should be a many circumstances creating doubt---if there is a circumstance which creates reasonable doubt in the prudent mind about guilt of accused, then the accused would be entitled to the benefit of doubt, not as a matter of grace and concession but as a matter of right”. It is also based on the maxim “It is better that ten guilty persons be acquitted rather than one innocent person be convicted”.

I have also sought other guidance from citation reported as Tariq Parvez v. The State (1995 SCMR 1345), wherein Honorable Supreme Court of Pakistan has held that:

“The concept of benefit of doubt to an accused person is deep rooted in our country. For giving benefit of doubt to an accused person, it should not be necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in the prudent mind about the guilt of accused, then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right”.

14. After such contradictory statements of prosecution witnesses, story as narrated by PWs cannot be believed to be trustworthy. Therefore, I am of the considered opinion that prosecution has failed to prove the charge against accused beyond any shadow of reasonable doubt. Hence, point No. I, is answered as negative.”

12.       From the perusal of the evidence, I have come to the conclusion that element of dishonesty has not been established. Basic ingredient of Section 489-F, PPC is that the cheque in question must have been issued with dishonest intention by the accused knowingly that payment of the cheque is not available on presentation. Moreover, there was fulfillment of obligation in between father of the appellant / complainant and respondent / accused, not in between appellant / complainant and respondent / accused. It is in the evidence that there was agreement in between the parties, but agreement in question was not produced before the trial Court. Witness of the said agreement namely Ghulam Hussain was also not produced. Record reflects that cheque was issued in the name of Muhammad Daud. Neither he lodged FIR himself nor after registration of the FIR his 161 Cr.P.C statement was recorded. According to the contents of the FIR, complainant gave wheat bags in the month of October and it was not the season of the wheat crop. It has also come on record that a suit was filed with regard to the transaction, but its copy was not produced before the trial Court. There are material contradictions in the evidence of the prosecution witnesses, which go to the root of the prosecution case as highlighted by learned Judge in the impugned judgment. Learned counsel for the appellant / complainant could not answer the infirmities, on the basis of which acquittal has been ordered. Judgment of the trial Court is based upon sound reasons and neither it is perverse nor arbitrary. Hon’ble Supreme Court in the recent judgment in the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), has observed as under:

“2.       According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses’ presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed.”

13.       For the above reasons, this Acquittal Appeal is without merit and the same is dismissed.

 

 

J U D G E

Abdul Basit