IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acq. Appeal No. S-47 of 2020

Appellant: Muhammad Nawaz, through

Mr. Sardar Akbar F. Ujjan, Advocate

Respondent: Ali Sher, through

Mr. Rukhsar Ahmed Junejo, Advocate

State: Through Mr.Aftab Ahmed Shar,

Additional Prosecutor General

Date of hearing: 29.11.2021

Dated of decision: 29.11.2021

JUDGMENT

Zulfiqar Ali Sangi, J. – Instant Criminal Acquittal Appeal is filed against the judgment dated 29.02.2020, passed by learned 1^st Civil Judge/Judicial Magistrate & MCTC, Kandiaro, whereby the learned trial Court has acquitted the respondent No.1/accused of the charge.

2. As per FIR, the allegation against the respondent is that on 07.02.2019, he purchased a GLI car Model 2014, in sale consideration of Rs.20,20,000/- and a Suzuki Mehran car in sale consideration of Rs.7,80,000/- from the appellant and issued him two cheques of Rs.20,50,000/- and Rs.7,80,000/-. On presentation of the said cheques in the concerned bank the same were bounced. Appellant met with the respondent and apprised him about dishonoring of the cheques and demanded the said amount to which he kept him on false hopes. Thereafter appellant got registered FIR against the respondent after getting such directions from the justice of Peace.

3. Learned counsel for the appellant/complainant has contended that the impugned judgment passed by the learned trial Court is illegal, unlawful and against the principle of justice; that this is the case of complete misreading and non-reading of evidence; that the learned trial Court has failed to appreciate the version of the complainant supported by other witnesses; that the complainant has fully proved his case against the accused. He prayed for converting acquittal of the respondent into conviction.

4. Conversely, learned Counsel for the respondent/accused submitted that the respondent is innocent and has falsely been implicated by the complainant in this case; that the appellant/complainant has miserably failed to establish its case against the respondent/accused and learned trial court has rightly acquitted the respondent/accused. He prayed that instant acquittal appeal may be dismissed.

5. Learned DPG representing the State, while adopting the arguments of learned counsel for the respondent/accused, argued that the learned trial court has rightly passed the impugned judgment with sound reasons by considering the material available on record, hence requires no any interference by this Court.

6. I have heard learned Counsel for the appellant/ complainant, learned counsel for respondent/accused, as well as learned DPG and perused the material available on record.

7. Perusal of record shows that appellant has miserably failed to establish extra ordinary reasons and circumstances, whereby the acquittal judgment recorded by the trial court may be interfered with by this court. It appears that the complainant and witnesses have failed to prove allegation against the respondent/accused by producing sound and cogent evidence. The impugned judgment has been passed by the learned trial court with solid reasons. For the sake of convenience, relevant paras of the impugned judgment are reproduced as under:-

“Although the accused admitted that, he was borrowed amount from the complainant of Rs.13,00,000/ and he was deposited his cheques as a security, but the accused could not be held responsible for the amount mentioned in the cheques in question without proving his liability for issuance of the cheques of such a huge amount. It was the duty of the complainant to prove his contention as alleged in the FIR, that, in fact the cheques in question were issued for payment of sale consideration amount of the cars in question, but the record produced by the complainant is unbelievable and against the nature prudence as well as the same negated by the judicial record produced by the accused regarding stealing the car in question from his real owner, which was alleged by the complainant to have been sold out by him to the accused. Thus the accused could not be convicted for the offence with proving his liability.

It is also settle principle of law that mere issuance of cheque is not sufficient to constitute an offence but there should be liability and dishonesty on the part of accused for issuance of the cheque and in this respect reliance placed upon case law 2015 YLR 691, (Shahid Hussain Versus Prem Kumar).

The prosecution has failed to prove liability of the accused for issuance of the cheque in question behind reasonable doubt. Thus, keeping in view the fact and circumstances of the instant case as well as ingredients of provision of section 489-F, the prosecution has failed to establish that the cheque was issued by the accused for repayment of loan amount or discharge of an obligation. The prosecution was required to prove all ingredients of the offence, but it failed to bring confidence inspiring evidence on record to prove that accused in fact purchased cars in question from the complainant and such cheques were issued for discharge of his liability, hence the issuance of the cheque with dishonest intention also remained doubtful and not proved by credible evidence.

There is no cavil to the preposition that if there is a single circumstance which creates reasonable doubt in the prosecution case, the same is sufficient to give benefit of the same to the accused, whereas the instant case is replete circumstances which create serious doubt about the alleged transaction and issuance of the cheque for payment of the sale consideration amount as alleged by the complainant and issuance of the cheques for payment of subject amount. As per saying of Holy Prophet (P.B.U.H) the mistake to release a criminal is better than punishing an innocent.

The principle was followed by the Honurable Supreme Court of Pakistan in the case law PLD 2002 SC 1056, wherein observed as under:-

“…..it will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and it enforced rigorously in view of the saying of the Holy prophet (P.B.U.H) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent”

In consequences of the above observation, the point No.01, answered as doubtful being not proved.

POINT NO:2

The cardinal principal of criminal law is that the burden to prove the offence is always on the prosecution. While in the present case the prosecution has failed to discharge its burden satisfactorily. The prosecution has not proved the case beyond shadow of reasonable doubt. Under these circumstances the accused is entitled to the benefit of doubt as a result, I hereby acquit the accused Ali Sher son of Abdul Razaque Koondhar from the charge u/s 245 (i). The accused present on bail his bail bond cancelled and his surety is hereby discharged.”

8. Learned counsel has relied upon an agreement which is available at page 57, it’s true translation is available at page 59 of the appeal. Paragraph No.1, of such agreement is reproduced as under:-

“1. That the vendor the party No.1 has sold the above mentioned vehicle in the sum of Rs.20,50,000/- (Twenty Lacs Fifty Thousands) to the party No.2, which he shall pay to the party No.1 in (12) installments to the party No.1. The first (12) installments shall be Rs.165,000/- (one lac sixty five thousands rupees). The party No.2 shall pay the first installment of Rs.165,000/- (One Lac Sixty Five Thousands rupees) to the party No.1 on 07.03.2019 and the party No.2 shall pay the final installment of Rs.70,000/- (in words Seventy Thousands) to the party No.1 on 07.03.2020 and shall be responsible for the payment. The Executant, the party No.2 has kept as guarantee his shop No. II-A-29 area 475-00 Square feet situated in Khanwahan town Taluka Kandiaro District Naushahro Feroze and has given its original documents without possession as mortgage to the party No.1. The party No.1 has given as surety his personal cheque No.1659687466 of Rs.20,50,000/- (Twenty Lacs Fifty Thousands) to the vendor party No.2. In case the party No.2 did not pay the installment on due date then he shall have to pay 10% as penalty, which the party No.1 shall collect from the party No.2 along with the penalty. If the party No.2 failed to pay two regular installments, the party No.1 shall have the right to recover his amount in due course of law or the party No.2 shall take in to possession the mortgaged shop. The vendee of the car, party No.2 shall execute the registered sale deed of his shop to the vendor, the party No.1. In lieu of the shop and the cheque the original file and the number plates of the car have been delivered to the party No.2.”

9. It reflects from the above findings of the trial court and the agreement submitted by the appellant/complainant himself that appellant/complainant has concealed the facts in FIR and has not mentioned that there was dispute on some installments. Therefore, the trial court has rightly observed that the prosecution has failed to prove its case beyond reasonable doubt.

10. It is not out of context to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with; the appeal against conviction is distinguishable from the appeal against the acquittal because presumption of double innocence is attached in the latter case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, and arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts, whereby accused were exonerated from the commission of crime as held by the Apex Court in the case of Muhammad Ijaz Ahmad v. Fahim Afzal (1998 SCMR 1281) and Jehangir v. Amanullah and others (2010 SCMR 491). It is settled principle of law as held in the plethora of case law that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

11. There is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial court, which being based on sound and cogent reasons, does not warrant any interference by this Court and is accordingly maintained and the instant appeal is dismissed.

JUDGE

Suleman Khan/PA