IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Crl. Acquittal Appeal No.S– 175 of 2018

 

DATE OF

HEARING

 

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

 

              For hearing of main case.

 

 

 

Date of hearing               09.03.2020.

 

 

Mr. Hamayoon Shaikh Advocate for appellant.

Mr. Shafiq Ahmed Leghari Adv. For resp.No.1

Mr. Abdul Rehman Kolachi DPG for State.

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ZULFIQAR ALI SANGI, J;               Through this acquittal appeal the appellant/complainant namely, Mohammad Munir has impugned the judgment dated 13.11.2019 passed by Civil Judge & Judicial Magistrate-II, Rohri in Crl. case No.61/2017 arising out of crime No.28/2017 U/s 489-F PPC Police Station, Rohri district, Sukkur whereby the respondent Ranjhan was acquitted by extending benefit of doubt to him.

 

2.                Brief facts of the prosecution case are that complainant Mohammad Muneer lodged FIR on 02.09.2016 at Police Station, Rohri stating therein that he is doing business at Dates Market, Rohri along with respondent. On 02.09.2016 complainant along with his nephew Zahid Hussain and Ram Das were available at his shop situated at Agha Qadir Dad Market, Rohri, it was about 2:00 p.m. accused/respondent Ranjhan along with Mohammad Asghar and Allah Bux came at his shop with whom he settled some account, in which Rs.25,00,000/- were outstanding to accused Ranjhan and the accused Ranjhan issued one cheque of Rs.2500,000/- of HBL Chuhara Mandi, Rohri to complainant  and for such amount Allah Bux and Mohammad Asghar stood surety. On 16.11.2016 and on 24.11.2016 complainant went to bank for encashment of cheque but same was dishonoured due to insufficient fund and bank authorities issued such memo. Thereafter complainant along with his aforesaid witnesses went to the village of accused but he issued threats. Hence complainant appeared at Police Station and lodged the FIR.

 

          After investigation the challan against accused/respondents was presented in the trial Court.

 

3.      In support of the case, prosecution examined PW-1 Ram Das at Ex.04. PW-2 Zahid was examined at Ex.5. PW-3 I.O. was examined at Ex.6 who produced FIR at Ex.7, attested copy of entry No.23 at Ex.08 and memo of site inspection at Ex.09, memo of arrest at Ex.10, Photostat copy of cheque and memo at Ex.11 &12, copy of CNIC of accused at Ex.13, memo of presenting cheque, memo and CNIC at Ex.14, letter at Ex.15 and memo of bank at Ex.16. PW-04 Munir Hussain was examined at Ex.17 who produced original cheque at Ex.18, memo of return of cheque at Ex.19, second memo of return of cheque at Ex.20. PW Zahid Hussain Bank Manager was examined at Ex.21 who produced authority letter at Ex.22, Photostat copy of attendance sheet at Ex.23, Photostat copy of entry which he kept for return of cheque at Ex.24 and statement of account of accued at Ex.25. Thereafter, learned ADPP closed prosecution side at Ex.26, and then statement of accused was recorded U/s 342 Cr.P.C.

 

4.      Learned Counsel for appellant submits that the judgment of the trial Court is perverse, non-speaking and contrary to the evidence brought on the record therefore, it is liable to be set-aside; that complainant and his PWs have fully supported the case of prosecution and prosecution has fully established its case for conviction but learned trial Court on flimsy ground has acquitted the respondents; that evidence produced by the prosecution has not been properly appreciated by the trial Court. He further submits that Court had to weigh the quality and not the quantity of evidence and in the present case sufficient material was on record warranting conviction of accused but learned trial Court did not give any weight and acquitted the respondents mere on presumption. He lastly submitted that conclusion drawn by the trial Court regarding innocence of accused were perverse coupled with non-reading and mis-reading of evidence hence, same is liable to be set-aside and conviction may be awarded to the respondents.

 

5.      Learned Counsel for respondent No.1 contended that the evidence produced by the prosecution was not sufficient to award conviction; that there are major contradictions in the evidence of prosecution witness; that prosecution is failed to prove the case  against the respondents and the trial Court rightly acquitted the respondents and prayed that appeal may be dismissed.

 

6.      Learned DPG supported the impugned judgment and contended that the prosecution has failed to prove the case against the respondents and trial Court appreciated the evidence in accordance with settled principle of law and prayed that appeal may be dismissed.

 

 

7.                I have heard the arguments advanced by the learned Counsel for appellant and have scanned the material available on record with their able assistance.

 

8.                It is observed that learned trial Court in the impugned judgment discussed the entire evidence and the para-13 and 14 of the judgment is re-produced as under;

 

13.    So far as evidence of eye witnesses of issuing cheque is concern, prosecution examined PW Ram dass and from evidence of PW Ram das contradiction were also found as he deposed that he along with Zahid was sitting at the shop of complainant where accused persons came there while at the same time in cross examination he disclosed that accused were already present at the shop of complainant prior to their reaching. Further PW Ram dass deposed that accused Ranjhan made promise to pay Rs.1200,000/- while such facts and amount neither complainant mentioned in FIR nor in deposition then how PW Ram dass came to know about remaining amount. Further PW Ram dass disclosed that he is working as Haq Bahoo Corporation from 12 years but he did not know accused prior to this incident, it is strange that PW Ram dass is working from 12 years with nephew of complainant but he did not know accused Ranjhan with whom complainant is doing business and made transaction of such alleged huge amount. Further prosecution also produced PW Zahid nephew of complainant for evidence but after recording his deposition PW Zahid did not come before this Court for cross examination, which is also strange, though he was nephew of complainant. As far as evidence of investigation officer is concerned it is strange to observe that investigation officer did not bother to collect evidence regarding alleged transaction like any documentary proof, not only that but it is also strange that investigation officer about alleged transaction from any shopkeeper who has shop near the shop of complainant which shows negligence of I.O.

 

14. Therefore, from the perusal of whole prosecution evidence it is clear that all these infirmities, contradictions and lacunas on the part of prosecution case render the whole story doubtful and unsupportive and thus it cannot be relied upon to convict the accused. As it was held in 2017 SCMR986, 2017 YLR 156 Lahore, 2017 MLD 360 Lahore and 2017 MLD 266 Peshawar, that, “Even a single doubt, if found reasonable, would entitle accused person to acquit and not a combination of several doubts”. Therefore, it is found that prosecution has failed to prove the case against accused person beyond any shadow of doubt, and from above discussion and reasons I come to the conclusion that there is no incriminating material came on record, which implicate the above named accused person in this case and connect him with the alleged charge. Hence, I have left no option but to reply these points as doubtful and not proved with the above mentioned reasons. For what has been discussed above, I am of the firm opinion that prosecution has failed to bring home the guilt of accused, hence point No.1 is not proved and answered as negative/doubtful.

 

9.                After considering the material available in the file I have come to the conclusion that the impugned judgment dated 13.11.2018 passed by II-Civil Judge & J.M, Rohri is based on proper appreciation of the evidence which is not fanciful. Needless to mention that when an accused person is acquitted by a Court of competent jurisdiction, then double presumption of innocence is attached to its judgment, with which the superior Courts in numerous cases do not interfere unless the impugned judgment appears to be vague, perverse and arbitrary or against the record.

 

10.           In the above circumstances, I am of the view that trial Court has rightly come to the conclusion that reasonable doubt has been created in the prosecution case and its benefit has rightly been extended to the respondent, therefore, learned II-Civil Judge & J.M, Rohri was fully justified for acquitting the respondent Ranjhan vide impugned judgment dated 13.11.2018, Thus, instant Crl. Acquittal appeal being devoid of merits is dismissed.  Above are the reasons of my short order dated 09.03.2020 whereby instant Crl. Acquittal appeal was dismissed,

 

                                                                                                      J U D G E

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Ihsan