IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR
Cr.Acquittal Appeal No.S-227of 2019.
For hearing of main case.
Present:
Mr. Justice Zulfiqar Ali
Sangi.
Appellants: AltafHussainJunejothrough
Mr.Saeed Ahmed Bhatt, Advocate.
Respondent: Muhammad Yaseen&another
Imran
Mubeen Khan,A.P.Gfor the State.
Date of hearing: 17.01.2020 .
Date of decision: 17.01.2020
J U D G M E N
T
ZULFIQAR ALI SANGI,J:- AppellantAltafHussainassailed the judgment
dated28.10.2019 passedbylearnedIInd Civil judge and JM Gambatin Criminal Cases
No.30/2019 arising out
of FIR No.53/2019 offence under section 489-F, registered at Police station
Gambat.Wherebythe respondent No:1 Muhammad Yaseen was acquitted after the
trial.
2. Precisely, the prosecution
case was that complainant deals with the business of grain and fertilizer, the accused
was purchasing the fertilizer and seeds,etc from him. On 25-01-2019 complainant
along with witnesses was available at his shop, where Muhammad Yaseen came and
asked for fertilizer on credit basis, on such complainant demanded from him the
cheques of Rs: 10,50,000/-for which accused issued the cheques detail given in
the FIR for 04-04-2019 and took the fertilizer, such agreement was also reduced
in the writing. According to the complainant said cheques on presentation were
dishonored and Bank issued such a memo for which complainant time to time
approached the accused but all in vain and then complainant registered the FIR.
3. After the usual investigation,
the police submitted challanagainst the appellantbefore the competent Court of
law. The learned trial Court completed all legal formalities and framedcharge
against the appellant/accused at Ex.02, to which hepleaded not guilty and
claimed trial, such pleawas obtained at Ex.03.
4. To prove its case, the prosecution
examined PW-1 H.C Muhammad Ali
Narejo the author of the FIR at Ex. 04. He produced FIR at Ex. 5, Original
Cheque at Ex. 6, Original bank return memo at Ex.7 and attested copies of
relevant entries at Ex. 8. PW-2Topan
Mal was examined at Ex.9.PW-03Zahid
Ali Mangi the mashir of the case was examined at Ex.10, who produceda photostate
copy of his CNIC at Ex.11, Original mashirnama of inspection of the place of
incident at Ex. 12, Original mashirnama of production of original cheque and
cheque return memo to I.O at Ex 13. P.W-04AltafHussain (Complainant) was
examined at Ex.14. He produced the original agreement of accused to the complainant
at Ex.15. P.W-5 Muharram Ali Dahri the investigation officer was examined at
Ex.16. He produced photocopies of relevant entries at Ex. 17.P.W-6SyedNaseer Ali Shah bank manager
at Ex.18. He produced an attested carbon copy of a letter of I.O regarding the investigation
of cheque and cheque return memo at Ex.19. Bank statement of the account
holder/accused at Ex.20, copy of his CNIC at Ex. 21 and thereafter the
prosecution closed its side vide statement at Ex. 22.
5. After completion of
prosecution evidence, learned trial court recorded statement of the appellantin
terms of section 342 Cr.P.C at 23, wherein hedenied the prosecution case andclaimed
hisinnocence and stated that he has falsely been implicated by the complainant
and further stated that complainant had abducted his father Nazar Muhammad and
snatched alleged cheque from the father of accused and further stated that on
6. Thelearned trialCourt after
hearing the Counsel for the parties and considering the evidence passed
impugned judgment had acquitted the accused which has been assailed through
instant appeal.
7. Learned
counsel for the appellant contended that learned trial court passed the
judgment in violation of law; that evidence produced by the prosecution was
sufficient to convict the accused but trial court acquitted the accused on flimsy
grounds; that signature on the cheque has not been denied by the accused; that
complainant and his witnesses fully supported the case and the evidence of
complainant was corroborated by the evidence of bank manager; that no major
contradiction is available in the evidence of prosecution witness; that
judgment passed by the trial court is not bassed on cogent reasons. Lastly, he
prayed that the appeal may be admitted for hearing and notices may be issued
against the accused and after hearing both the parties convict the accused.
8. Conversely,
learned D.P.G, while controverting the contentions of learned Counsel for the
appellant submitted thatthere is civil dispute between the parties and the
business transaction which is admitted by the appellant in his evidence; that
major contradictions are available in the evidence which makes the entire case
as doubtful; that learned trial court has properly appreciated the evidence and
then passed the acquittal judgment; lastly hesupported the judgment passed by
the trial court and prays that appeal may be dismissed.
9. I have heard learned Counsel for the
appellant, learned A.P.G for the State and have examined the record carefully
with their able assistance.
10. It is well settled
by now that the scope of appeal against acquittal is very narrow and there is a
double presumption of innocence and that the Courts generally do not interfere
with the same unless they find the reasoning in the impugned judgment to be perverse,
arbitrary, foolish, artificial, speculative and ridiculous as was held by the
Supreme Court in the cases of State
Versus Abdul Khaliq and others (PLD 2011 SC 554), Honourable Supreme Court
has held as under:-
From
the ratio of all the above pronouncements and those cited by the learned
counsel for the parties, it can be deduced 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. It has
been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically
laid down that such judgment should not be interjected until the findings are
perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis
supplied). The Court of appeal should not interfere
simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR
635) and Muhammad Ijaz Ahmad v. Raja FahimAfzal and 2 others (1998 SCMR 1281)
that the Supreme Court being the final forum would be chary and hesitant to
interfere in the findings of the Courts below. It is, therefore, expedient and
imperative that the above criteria and the guidelines should be followed in
deciding these appeals.
11. According to the complainant the offence was
committed by the accused on 25-01-2019 but the complainant lodged the FIR on
04-06-2019, such delay in the registration of FIR has not been explained by the
complainant properly. The approach after the dishonor of cheque to the accused
was not established by the complainant from the evidence as no PW deposed a
single word that on what date and what time complainant approached the accused
and informed him about the dishonor of the cheque and demanded his amount.
12. On scrutiny of the evidence produced by the
prosecution, I found that all witnesses are contradictory to each other on
material points. The approach to the oath commissioner and the stamp vendor is
doubtfull as the complainant deposed before the trial court that he alongwith
Topan Das, Anwar Ali Mangi and accused went to the stamp vendor
Zia-u-ddinAbbasi for executing agreement thereafter they went to the oath
commissioner Mr. Manik Ali Pitafi whereas the PW-2 deposed in the evidence that
agreement was made before the stamp vendor Raja Abbasi, approach to the bank
for encashment is also contradictory and non-supportive.
13. The important evidence was the vouchers and
the credit register and the details of the fertilizer taken by the accused were
not been produced before the trial court to establish that the accused taken
such fertilizer from the shop of the complainant and the cheques were issued by
him for re-payment of such amount.
14. The version given in the FIR and the
evidence of complainant is also contradictory to the application moved by the
complainant himself to the Additional IG Sukkur Region Sukkur against the
accused for action on the same cheques in which complainant narrated some other
business of flour Mill and stated that accused and his brother namely Muhammad
Rafique were on business terms with him he not disclosed the business of
Fertilizer, True copy of the said application is available at page 41 and is
submitted by the appellant.
15. A perusal
of section 489-F, P.P.C. reveals that the provision will be attracted if all
three conditions are fulfilled and proved by the prosecution: (i) issuance of cheque; (ii) such issuance was with
dishonest intention; (iii) the purpose of issuance of cheques should be:(a) to
repay a loan; or (b) to fulfill an obligation (which in wide term inter
alia applicable to lawful agreements, contracts, services, promises by which
one bound or an act which binds person to some performance). (iv) on
presentation, the chequesare dishonored. However, a valid defence can be taken
by the accused, if he proves that:(i) he had made arrangements with his bank to
ensure that the cheques would be honoured, and (ii) that the bank was at fault
in dishonoring the cheque. S. 489-F is therefore reproducedas under:-
S. 489-F:
Dishonestly issuing a cheque: Whoever dishonestly issues a cheque
towards repayment of a loan or fulfillment of an obligation which is
dishonoured on presentation, shall be punished with imprisonment which may
extend to three years or with fine, or with both, unless he can establish, for
which the burden of proof shall rest on him, that he had made arrangements with
his bank to ensure that the cheque would be honoured and that the bank was at
fault in not honouring the cheque.
16. The
complainant had taken two different pleas about his amount alleged against the
accused, he not produced any proof about the said transaction of Fertilizer even
not produced thevouchers or credit register,etc and his FIR and application as
discussed above are given different versionsabout the business and set of
accused. Complainant also not proved the agreement by not producing the
important witnesses who were the author of the said agreement, oath
commissioner who attested the said agreement and the person who identified the
accused before the oath commissioner.
17. Based on the above discussion, I have found that
the acquittal of the respondent does not suffer from any illegality to call for
interference by this court with the impugned judgment. Based on the law
concerning an appeal against acquittal and the fact that the learned trial
Judge has advanced valid and cogent reasons for passing a finding of acquittal
in favor of the respondent and I see no legal justification to disturb the same
as such the appeal against the acquittal of the respondent is dismissed in
Limini.
18. These are the reasons formy short order
dated: 17-01-2020 announced in court.
JUDGE