Crl. Acquittal Appeal
No. S- 199 of 2017
Muhammad Tariq
.
.
...
.
..
...Appellant
Versus.
The State and others.
.
......
. Respondents
For Hearing of Main Case.
Mr. Hamayoon
Shaikh Advocate for appellant/complainant.
Mr. Abdul
Rehman Kolachi, Deputy P.G for the State.
Date of hearing: 28-10-2019
Date of Judgment: 08-11-2019
J U D G M E N T
RASHEED AHMED SOOMRO J., Instant Crl. Acquittal Appeal is directed against the
judgment dated 30.10.2017, passed by learned 2nd Civil Judge & Judicial
Magistrate, Sukkur in Crl. Case No. 261 of 2013, arising out of crime No. 110
of 2013, registered with P.S, B-section, Sukkur, for offences under Sections
489-F, 365, 511 & 420 PPC, whereby respondents/accused were acquitted of
the charge.
2. Facts
leading to disposal of this appeal are that on 30.08.2013 at about 0400 hours
at the shop of complainant Muhammad Tarique situated at Frere Road, Sukkur,
private respondents/accused, duly armed with pistols, kept the complainant
under fear of death and tried to kidnap him. It is further alleged that accused
persons dishonestly induced the complainant for purchasing the property and got
an amount of Rs. 17,00,000/-, but the same amount was not returned to him. It
is further alleged that accused Nadeem-u-Din issued the cheque to the
complainant and on 12.06.2013, but it was dishonoured on presentation due to
insufficient balance. Consequently, above FIR was lodged on 30.08.2013.
3. Charge was
framed against the private respondents, to which they pleaded not guilty and
claimed trial. Thereafter, prosecution led evidence of prosecution witnesses
and recorded statements of accused in terms of section 342 Cr.P.C and after
hearing the parties vide impugned judgment acquitted the respondents of the
charge for the following reasons:
Since both issues are inter linked with each other so
discussed together. The complainant stated that the accused Nadeem din
instigated him for purchasing of the property and in order to purchase the same
he sold out the golden ornaments of his mother. During entire evidence nothing
came on record that the accused instigated him for purchasing the property. In
the present case no friendship, business or close family relations were cited
by the complainant for giving the huge amount to the accused without any agreement
or verification.
However section 489/F is
about the dishonest issuance of a cheque by a person towards the re-payment of
a loan or fulfilment of an obligation which is dishonored on presentation. In the
present case no blood or close relation was cited by the complainant for giving
such a huge amount to the accused in this age of mistrust and of course,
dearness as well a person while entering into the such monetary relations with
an individual seeks double assurances and that too in black and white and
certainly no: in a manner as the circumstances of the presence case suggests
Rs: 17, 00.000 is any way too much huge amount to be given a person without any
surety or any written commitment. The accused took plea that he has lodged the
NC at PS C section against the misplacement of the alleged cneque. This fact
vas not challenged by the prosecution.
Let me clarify here the word
dishonest issuance " which used in section 489/F of it reflects that where
the drawer had issued the cheque directing payment of the amount mentioned therein
knowing that he had no funds and that on presentation the cheque would be
dishonored. Fundamental elements to constitute an offence under section 489/F
PPC was that cheque should be issued with dishonest intention. Prosecution in circumstances
failed to prove main ingredients of the offences.
According to Article 117 of the
Qanun-i-Shahadat, 1984 burden to prove is upon the one who asserts the
particular fact that it exists In a criminal charge, the burden is on the shoulders
of prosecution because it asserts the existence of a particular fact and it
shifts to accused in some cases, Such as his taking different stances. Relied taken
from Abdul Haque v. the State and another, PLDh996 SC 1. In the cases relating
to offence, punishable under Section 489-F, PPC, the prosecution has not
established the necessary ingredients thereof, as has been observed by
Honorable Supreme Court in Muhammad Sultan's case (supra), that is to say. (i)
repayment of loan or fulfilment of obligation (ii) dishonest issuance of the
cheque to such liability and (iii) dishonor thereof on the presentation. These
three things are first of all to be proven by the prosecution and once these
are established, then the burden shifts upon the accused to establish that he
was not at fault for dishonor of the cheque but it was the fault of Bank and
that he had made arrangements for payment or any other plea, that he may takes,
like steel of cheque etc. In view of this legal position, weakest defence is
not sufficient to say that prosecution has brought home its charge unless it
does that by independent evidence. Moreover provision of section 489-F PPC are
meant for punishment and not for the purpose of recovery
4. Learned
counsel for appellant argued that there was sufficient evidence connecting the
private respondents with the commission of offence, but the learned trial court
illegally acquitted them of the charge; that the trial court failed to take
into consideration that the offence is of heinous nature; that respondents failed
to create any dent in the prosecution case but even then the trial court
illegally, unlawfully and without any justifiable reason acquitted them of the
charge and while acquitting the respondents the trial Court failed to record
any cogent reason.
5. On the
other hand, learned Deputy P.G for the State while supporting the impugned
judgment contended that the respondents have rightly been acquitted by the
trial Court after appreciating the evidence properly.
6. I have considered
the arguments advanced by the learned counsel for appellant, learned Deputy P.G
for the State so also as well as perused
the record of case and have reached to a conclusion that respondents/accused
have rightly been acquitted by the trial Court for the reasons that perusal of
FIR contemplates that accused Nadeem-u-Din induced the complainant for
purchasing property, for which he sold out golden ornaments of his mother, but
it has rightly been observed by trial Court that nothing has come in evidence
that accused induced complainant for purchasing the property and a transaction
of huge amount was made by the complainant without any written agreement to
sale or verification of the title documents of the so-called property.
Furthermore, it has also come on record that before lodgement of FIR, the
accused had kept N.C at P.S, C-section, Sukkur on 16.03.2013, with regard to
misplacement of alleged cheque, whereas, FIR of this crime was lodged after a
considerable delay on 05.10.2013 delay of about six months. In the FIR, it is
alleged that accused Shakeel Ahmed caused butt blows to complainant, but there
was no injury on his body as there is no medical certificate. It has also come on
record that signature of accused Nadeem-u-Din was not verified by the Bank
Authority over the cheque, which fact is also admitted by the Bank Manager
Abdul Ghani Mangrio (PW-5) during his evidence. These were extremely fatal to
the prosecution case.
7.
It is also 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 recent
judgment in the case of Zulfiqar Ali v.
Imtiaz and others (2019 SCMR 1315), Hon'ble Supreme Court has held 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.
8. Under
these circumstances, I am of the considered opinion that prosecution has failed
to prove guilt of the respondents, as such the trial Court had no option but to
acquit the private respondents of the charge. The trial Court after proper
appraisal of material available on record and attending all the legal as well
as factual aspects of the case passed a very exhaustive and well-reasoned
judgment. Learned counsel for the appellant / complainant has not been able to
point out any illegality or
irregularity, misreading and non-reading or serious flaw or infirmity in the impugned judgment warranting interference by this Court.
9. In view of above discussions, I am of the
considered view that no case for interference in the impugned judgment is made
out, as such this Crl. Acquittal Appeal No. S-199 of 2017 stands dismissed.
JUDGE