IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Cr. Rev. Appln. No. S-75 of 2022

 

 

Applicants

 

Muhammad Yousif

 

 

Through Mr. Habibullah G. Ghouri, Advocate

 

 

 

Complainant

 

Abdul Razzaque

 

 

Through Mr. Nizakat Ali Qureshi, advocate

 

 

 

State

 

Through Mr. Aitbar Ali Bullo, D.P.G for the State

 

Date of hearing

 

31-05-2023

Date of judgment

 

31-05-2023

 

 

J U D G M E N T

 

Zulfiqar Ali Sangi, J. The applicant was tried by the learned Civil Judge and Judicial Magistrate-I/MCTC Kandhkot and was convicted and sentenced vide judgment dated 05.11.2022, emanating from Crime No.14/2022, registered at Police Station A-Section Kandhkot, for offence under Sections 489-F, 506/2 P.P.C, whereby he was convicted for offence punishable U/S 489-F P.P.C and sentenced to suffer R.I for three years and to pay fine of Rs.45,000/-. In case of default in payment of fine, to remain in jail for one month more. However, benefit of Section 382-B Cr.P.C was extended to the applicant/accused. The applicant preferred criminal appeal before Sessions Judge, Kashmore @ Kandhkot bearing Criminal Appeal No.14/2022, who after hearing the parties, dismissed the criminal appeal and maintained the conviction awarded to the applicant by the learned civil Judge & Judicial Magistrate-I/MCTC. Being aggrieved, the applicant has preferred present criminal revision application before this Court.

2.                          Facts of the prosecution case are that on 21.01.2022 at about 2030 hours complainant Abdul Razzaque Daudpoto appeared at PS A Section Kashmore @ Kandhkot and got registered FIR stating therein that, on 26.10.2021 at about 04:00 pm accused Muhammad Yousif issued a cross cheque of Rs: 500,000/= of Al-Habib Bank Sir Syed Road Branch Mirpur Khas bearing account No.PK73B AHL 1274009500702701, bearing cheque No.10661426 of dated 29.10.2021 in presence of witnesses Abdul Qadir and Qutub Ali in lieu of purchase of rice (Daaro), Katti, Makaee and politary feed by the accused Muhammad Yousif Khan from complainant. On presenting the said cheque by the complainant in bank, the said cheque was dishonored due to insufficient fund in drawer’s account and payment stopped by the drawer. It is further alleged in FIR that on 12.12.2021 accused Muhammad Yousif and Muhammad Waqas came on one Vitz. Car and they issued threats of murder to the complainant at the force of TT Pistols at about 04:00 pm in presence of same witnesses at Ghanta Ghar Chowk. Therefore, FIR of such offences was registered against the accused under above referred sections.

3.                          After registration of FIR investigation was carried out by ASI Abdul Aziz Golo who visited the place of occurrence, prepared the memo of site inspection in presence of mashirs, recorded the statement of PWs U/S 161 Cr.PC, also got verify the dishonored cheque from the concerned bank and arrested accused Muhammad Yousif on 28.01.2022 and arrested accused Muhammad Waqas on 04.02.2022 under mashirnamas of arrest. On conclusion of usual formalities, submitted the final police report under above referred sections. Trial court framed the formal charge against the applicant, who pleaded not guilty and claimed trial.

4.                          During trial the prosecution examined total seven witnesses, who produced certain items and documents in support of their evidence.  Thereafter the prosecution side was closed vide statement by ADPP.

5.                          The statement of accused was recorded under Section 342 Cr.P.C, in which accused had denied all the allegations leveled against him and pleaded innocence. He produced Photostat copy of memo of F.C Suit No.47/2020, Re: Muhammad Yousif Vs Abdul Razzaque, Photostat copy of Cr. Misc. Application No.2160/2021 under section 22-A & 22-B Cr.P.C and order passed on it dated 22.12.2021. The accused did not opt to examine himself on oath, nor examined any witness in his defence.

6.                          The learned trial court after hearing the advocates of the parties and after evaluation of the evidence brought on record by the prosecution passed the impugned judgment, wherein the applicant was convicted as stated above.

7.                          Learned counsel for applicant has argued that both the learned Courts below have erred in law and the facts; that the judgments passed by the trial Court as well as learned Appellate Court are perverse and liable to be set-aside; that the learned Courts below have failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the learned Courts below, as it consist of only interested witnesses and insufficient to warrant conviction of the appellant. Learned counsel further contended that there are important and vital contradictions in the evidence of the prosecution witnesses, which he highlighted. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant

8.                          Learned D.P.G, assisted by learned Advocate for complainant have supported the both judgments passed by the lower courts below and further submitted that the prosecution has fully established its case by producing trustworthy ocular as well as circumstantial evidence. The memo issued by the bank regarding dishonournment of cheque shows that the bank account of the applicant was lacking insufficient funds. They both have prayed for dismissal of instant criminal revision application.

9.                          I have heard the learned counsel for applicant, as well as learned D.P.G appearing for the State and learned Advocate for complainant and have also gone through the material available on record.

10.                       From perusal of the record, it appears that complainant in his examination-in-chief has not disclosed that when and where the agreement of sale was executed or when he paid amount of Rs.1,21,80,000/- to the accused. Even the complainant has not disclosed details of seeds or other articles which he sold out to the applicant and received above cheque. The complainant has also not examined eye witness Qutubuddin, in whose presence the alleged cheque was paid by the applicant. As such the adverse inference goes against the complainant. The complainant has also failed to show any agreement in writing or even failed to produce the cash book or credit book and any receipt in respect of alleged transaction made between him and the applicant. The complainant also failed to disclose the date of alleged transaction even month or year has not been disclosed.

11.                       A perusal of Section 489-F, P.P.C. reveals that the provision will be attracted if all three conditions are fulfilled and proved by the prosecution: (i) issuance of cheque; (ii) such issuance was with dishonest intention; (iii) the purpose of issuance of cheques should be:(a) to repay a loan; or (b) to fulfill an obligation (which in wide term inter alia applicable to lawful agreements, contracts, services, promises by which one bound or an act which binds person to some performance). (iv) On presentation, the cheques are dishonored. However, a valid defence can be taken by the accused, if he proves that: (i) he had made arrangements with his bank to ensure that the cheques would be honoured, and (ii) that the bank was at fault in dishonoring the cheque. S. 489-F is therefore reproduced as under:-

S. 489-F: Dishonestly issuing a cheque: Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punished with imprisonment which may extend to three years or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.

 

12.                       Based on the discussion made herein above the prosecution has failed to prove main ingredients of Section 489-F P.P.C. These circumstances have created serious doubt in the prosecution case. In absence of evidence in respect of the payment of above amount or to prove the purpose of issuance of cheque, no case under Section 489-F P.P.C is made out.

13.                       The nutshell of the above discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by Hon’ble Apex Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts, if there is single circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as matter of grace and concession but as a matter of right.

14.                       For the foregoing reasons and keeping in view the dictum laid down in case of Tariq Pervez v. The State (supra), the conviction recorded by the learned trial Court maintained by learned Appellate Court against the applicant is not sustainable. Consequently, the instant criminal revision stands allowed; the impugned judgments of learned trial Court and Appellate Court are set-aside and the applicant is acquitted of the charge. He is present on bail; his bail bond stands cancelled and surety discharged. The office is directed to return surety papers to concerned, as per practice. 

 

                                                                  Judge

Abdul Salam/P.A