Judgment Sheet.

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S-164 of 2018

Date of hearing : 02.09.2019.

Mr. Rukhsar Ahmed Junejo, Advocate for Appellant.

Mr. Zulifqar Ali Jatoi, Additional Prosecutor General.

-.-.-.

J U D G M E N T

Naimatullah Phulpoto, J. Through this Acquittal Appeal, appellant / complainant Kanyo Mal son of Hero Mal has impugned the judgment dated 20.10.2018 passed by Judicial Magistrate-II Sukkur in criminal case No. 30/2017 for offences under sections 489-F, 506/2 PPC. On the conclusion of trial vide judgment dated 20.10.2018 respondents / accused Menwal alias Emanuel and Pervaiz Maseeh were acquitted.

2.                     Brief facts of the prosecution case are that on 28.02.2017 at 1715 hours, the complainant lodged FIR at PS B-Section Sukkur alleging therein that the accused Emanuel was his friend, who offered the complainant job for his son in SSGC, for the consideration of Rs. 700,000/-. It is alleged that accused Emanuel agreed to Rs. 660,000/-.It is further alleged that on 15.09.2016, the complainant paid him the said amount but accused failed to provide him job for his son. On 01.11.2016, accused issued a cheque No.44359384 of HBL dated 18.11.2016 to complainant, but the same was dishonoured on its presentation. The complainant demanded return of the amount from accused but he kept on false hopes. On 18.01.2017, when the complainant was present on his shop along with his son Rakesh Kumar and friend Daino Mal it is alleged that accused Emanuel and Pervaiz armed with pistols appeared there and issued threats of murder, in case he demanded the money. Complainant lodged FIR against the accused at P.S B Section Sukkur, it was recorded vide crime No. 18/2017 under sections 489-F, 506/2 PPC.

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

4. Trial Court framed the charge against both the accused. They pleaded not guilty and claimed to be tried.

5. At the trial, prosecution examined eight (06) PWs and prosecution side was closed.

6. Statements of accused Pervaiz Masih and Emanuel Masih were recorded under Section 342, Cr. P.C in which accused claimed false implication in this case and denied the prosecution’s allegation. They examined themselves on oath and produced witness Abdul Aziz in their defense. Accused Pervaiz Masih produced certified true copy of petition No.1322/2016, certified true copy of diaries, certified true copy of order dated 7.10.2016, certified true copy of submission of reports / comments at Exh.12-A to 12-F respectively.

7. Learned trial Court after hearing learned counsel for the parties and assessment of the evidence in para Nos. 11 and 12 by sounded the valid reasons acquitted the accused vide judgment dated 20.10.2018, for the following reasons.

“11. The complainant alleged the payment of Rs.660,000/- to accused Emmanuel for a job purpose in SSGC, but it is a matter of record that he nowhere alleges any eye witness of his payment therefore huge onus lies upon him to prove that he had actually paid the said amount to accused and in order to discharge the liability accused issued alleged cheque to him. The complainant stated in FIR that on 15.09.2016, he had paid Rs. 660,000/- to accused Emanuel for job of his son however he could not provide hence the accused issued subject cheque for said amount on his shop in presence of his friend Diano Mal and his son Rakesh however neither he disclosed the payment and its date nor deposed the presence of both witnesses at the time of issuance of cheque to him by accused Emahuel in examination in chief, whereas PW Diano Mal examined at Ex.6, who deposed being servant of the complainant since 17 years at his shop. He has deposed in his cross examination that it is not in his knowledge that for what purpose accused issued cheque to the complainant. The son of the complainant namely Rakesh Kumar examined at Exh.7, also did not depose either for payment or its purpose. FIR is registered on 28.02.2017, however, it is a matter of record that the complainant admitted in cross examination for criminal miscellaneous application No.1322 of 2016, filed by accused Pervaiz against him and others on 05.09.2016, wherein he prayed not to be harassed by the complainant and disclosed threats to be booked in false cases by complainant.

12. The Honourable Supreme Court & Honourable High Court of Sindh have also held in various judgments that mere possession / issuance of a cheque is in-suffient for convicting the accused persons but the said cheque is to be backed by certain obligation or a loan which is missing in the instant case. Further more, in the instant case the only thing available to the prosecution is cheque of the accused Pervaiz which has been dishonoured on presentation. Two witnesses were examined by the prosecution as of ocular account but neither the complainant nor his witnesses could provide the detail of cheque issued by the accused to the complainant , therefore, it could be safely held that the prosecution has not brought / forwarded any proof, which could substantiate that the said cheque was for the fulfillment of any obligation or repayment of loan. The prosecution, primarily is duty bound to establish guilt against accused without any shadow of reasonable doubt by producing trust worthy, convincing and reliable evidence having intrinsic worth to enable the Court to draw conclusions; that the prosecution has succeeded in establishing accusation against accused; and if it would come to the conclusion that the charges so imputed against accused has not been proved beyond reasonable doubt then accused would become entitled for acquittal, therefore above discussed infirmities raise certain doubts. None else but the accused is entitled to benefit of such doubts.”

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

9. Learned advocate for the appellant/complainant mainly contended that impugned judgment of the trial Court is based on misreading and non-reading of evidence. He has also argued that trial Court has disbelieved strong documentary evidence without assigning sound reasons, and prayed for converting the acquittal to the conviction.

10. Mr. Zulfiqar Ali Jatoi, Additional Prosecutor General argued that trial Court has properly appreciated the evidence and acquittal of the accused / respondents is neither perverse nor based upon misreading of evidence. He has supported the judgment of the trial Court.

11. It is settled law that ordinary scope of acquittal appeal is considerably narrow and limited and obvious approach for dealing with the appeal against the conviction would be different and should be distinguished from the appeal against acquittal because presumption of double innocence of accused is attached to the order of acquittal. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 Supreme Court 554), following guiding principles have been laid down for deciding an acquittal appeal in a criminal case:

“16. We have heard this case at a considerable length stretching on quite a number of dates, and with the able assistance of the learned counsel for the parties, have thoroughly scanned every material piece of evidence available on the record; an exercise primarily necessitated with reference to the conviction appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and fact raised from both the sides, it may be mentioned that both the learned counsel agreed that the criteria of interference in the judgment against ' acquittal is not the same, as against cases involving a conviction. In this behalf, it shall be relevant to mention that the following precedents provide a fair, settled and consistent view of the superior Courts about the rules which should be followed in such cases; the dicta are:

Bashir Ahmad v. Fida Hussain and 3 others (2010 SCMR 495), Noor Mali Khan v. Mir Shah Jehan and another (2005 PCr.LJ 352), Imtiaz Asad v. Zain-ul-Abidin and another (2005 PCr.LJ 393), Rashid Ahmed v. Muhammad Nawaz and others (2006 SCMR 1152), Barkat Ali v. Shaukat Ali and others (2004 SCMR 249), Mulazim Hussain v. The State and another (2010 PCr.LJ 926), Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53), Farhat Azeem v. Asmat ullah and 6 others (2008 SCMR 1285), Rehmat Shah and 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muhammad Sharif and 3 others (1995 SCMR 635), Ayaz Ahmed and another v. Dr. Nazir Ahmed and another (2003 PCr.LJ 1935), Muhammad Aslam v. Muhammad Zafar and 2 others (PLD 1992 SC 1), Allah Bakhsh and another v. Ghulam Rasool and 4 others (1999 SCMR 223), Najaf Saleem v. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others v. The State and others (2005 SCMR 1175), Mukhtar Ahmed v. The State (1994 SCMR 2311), Rahimullah Jan v. Kashif and another (PLD 2008 SC 298), 2004 SCMR 249, Khan v. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmad v. Muhammad Ramzan and another (1995 SCMR 855), The State v. Abdul Ghaffar (1996 SCMR 678) and Mst. Saira Bibi v. Muhammad Asif and others (2009 SCMR 946).

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 Fahim Afzal 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.”

Prosecution had not brought any proof which could substantiate that said cheque was for fulfillment of any obligation.

12. From perusal of judgment of trial Court it reveals that there is also no serious flaw or infirmity in the impugned judgment. View taken by the learned trial Court is a possible view, structured in evidence available on 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, impugned view is found on fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled.

13. The Criminal Acquittal Appeal is without merit and the same is dismissed. These are the reasons of my short order announced on 2^nd day of September, 2019.

J U D G E

Irfan/PA