IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl.Acquittal Appeal No.S-123 of 2022
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Appellant/Complainant |
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Kishore Lal s/o Pribhdas Hindu Through Mr.Asif Hussain M.Nawaz Chandio, Advocate. |
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Date of hearing |
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12.01.2023 |
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Date of decision |
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12.01.2023 |
JUDGMENT
ZULFIQAR ALI SANGI, J ;- Through instant Criminal Acquittal Appeal, the appellant has impugned the judgment dated 12.11.2022, passed by learned Judicial Magistrate-I/MTMC, Jacobabad in Crl.Case No.84 of 2022 (Re.St.Vs.Bhajjan Lal @ Aneel Kumar), emanating from FIR bearing Crime No.32 of 2022 for offence punishable U/S.489-F, 406, 420, 506/2, 504 PPC, registered with Police Station, A-Section Thull, whereby respondent/accused Bhajjan Lal @ Aneel Kumar was acquitted by extending him benefit of doubt.
2. Precisely, the facts leading to disposal of instant criminal acquittal appeal are that on 03.03.2022 at about 1530 hours, appellant/complainant Kishore Lal got registered the FIR with P.S, A-Section Thull, to the effect that respondent Bhajjan Lal @ Aneel Kumar after committing criminal breach of trust, dishonestly issued three cheques total amounting to Rs.4500,000/- in favour of the complainant against purchase of Rice from him and the same on being presented before the concerned bank were dishonoured due to insufficient funds and when the appellant/complainant approached him for return of his money, the respondent/accused besides insulting, issued him threats of dire consequences, for that the present case was registered against the respondent/accused.
3. On completion of usual investigation, the police submitted final challan against the respondent/accused before learned trial Court where after all legal codal formalities, the charge was framed against him at Exh.02, to which he pleaded not guilty and claimed trial vide his plea recorded at Exh.03.
4. To prove its case, the prosecution examined PW-1 appellant/complainant Kishore Lal at Exh.03, he produced original cheques alongwith deposit slips and memo, copy of order of District & Sessions Judge, Jacobabad a/w letter No.1651, and FIR of the present case at Exh.03/A to 03/I respectively. PW-2 Eye-witness/mashir Ram Lal at Exh.04, he produced memo of production of cheque, memo of place of incident and memo of arrest of accused at Exh.04/A to 04/C. PW-03 Bank official namely Siraj Ahmed at Exh.06. PW-04 author of FIR namely HC Awal Khair at Exh.07, he produced carbon copy of entry No.20 & 21 at Exh.07/A. PW-5 Investigation officer/ASI Jan Muhammad at Exh.08, he produced carbon copy of entry No.08, letter No.Cr/32/2022 dated 04.03.2022 at Exh.08/A and 08/B. Thereafter, the learned State Counsel closed its side vide such statement at Exh.09.
5. The respondent/accused in his statement recorded in terms of Section 342 Cr.PC denied the allegations leveled against him by pleading his innocence, stating therein that he never issued any cheque to complainant and PWs deposed at instance of Abdul Fattah Bugti, as son of complainant is employee of said Abdul Fattah Bugti whereby he forcibly obtained his signatures on cheques and he has falsely been implicated at the instance of Abdul Fattah Bugti. He however, did not examine himself on oath nor led any evidence in his defence.
6. The learned trial Court after hearing the Counsel for the parties and evaluation of the evidence acquitted the respondent/accused which the appellant/complainant has assailed before this Court by preferring the instant criminal acquittal appeal.
7. Per learned counsel for the appellant/complainant that learned trial Court has passed the judgment in violation of law and there was sufficient material on record to convict the respondent/accused but learned trial Court acquitted him on flimsy grounds; that signatures on the cheques have not been denied by the respondent/accused; that the complainant and his witnesses fully supported the case and the evidence of complainant was corroborated by the evidence of bank official; that no major contradiction is available in the evidence of prosecution witness; that the judgment passed by the learned trial Court is not based on cogent reasons. Lastly, he prayed for admitting the instant criminal acquittal appeal and issuance of the notice.
9. Heard learned counsel for appellant/complainant and perused the material made available on the record.
10. The perusal of judgment reflects that the learned trial Court has mainly acquitted the respondent/accused on the following reasons;
“11. In view of above case law the complainant initially failed to prove the main ingredient of 489-F PPC, which one has liability as complainant has not produced any document regard the sell and purchase of rice between complainant and accused. Complainant being a star witness of the case could not produce sufficient detail of the case as the complainant could not brought any document by which it can be assumed that accused had purchased any rice commodity from him. As for as concerned with accused came over to complainant at his shop or office and purchase such huge quantity of rice commodity but entire record is silent about such deals and transaction. Moreover, the complainant has stated in FIR that, accused had purchased 2000 mounds from him but the complainant could not furnish any record about the delivery of such huge quantity of rice.
12. Complainant also failed to bring on the record about the mode of delivery. Therefore, I am of the humble view that being a star witness the testimony of complainant could not established liability upon the accused which is the main ingredient of 489-F PPC. In this regard, I am of the humble view that, a single ingredient of Section 489-F PPC is not discharged with tangible evidence whole foundation of Section 489-F PPC would not be attracted. Prosecution produced the PW Ram Lal at Ex.04, he is eye witness of the case and being a son of complainant Kishoor Lal he narrated the same facts as narrated by complainant. But he added the amount of each cheque and he did not stated about the deal weight, variety of rice, mode of delivery and the settlement of payment. PW Just stated the accused issued the cheque on 18.12.2021 and he along with father submitted the same cheque in concern Bank on presentation of cheques same were return with memo of dishonor of cheque on ground of insufficiency of balance”.
11. 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), wherein the Hon’ble 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.
12. Based upon the above discussion, I am of the humble view that the learned trial Court has rightly acquitted the respondent/accused by way of impugned judgment which even otherwise does not suffer from any illegality to be interfered with by this Court by way of instant Criminal Acquittal Appeal, the same fails and is dismissed in limine together with listed application.
JUDGE