IN  THE  HIGH  COURT  OF  SINDH  AT  KARACHI

Criminal Acquittal Appeal No.346 of 2011

Appellant                    :           Mst. Samina Pervaiz, through Mr.Ashfaq Rafiq, Advocate.

Respondents No.1& 2:           Syed Ashfaq s/o Syed Muhammad Alam Shah &

Rao Hashim Ali Khan s/o Murad Ali Khan,

through Mr. Saeed-uz-Zaman,Advocate.

Respondent No.3        :           The State, through Mr. Abdullah Rajput, APG.

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Date of Hearing        :           28.02.2017.

Date of Order            :           28.02.2017.

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ORDER

ZAFAR AHMED RAJPUT, J:-This Criminal Acquittal Appeal is directed against the judgment dated 21.07.2011 passed by the learned Judicial Magistrate-V, Karachi-Central, in Criminal Case No. 3629 /2009, arisen out of F.I.R No.176/ 2008, registered under Section 489-F and 420 P.P.C., at P.S. Sir Syed, Karachi, whereby the respondents No.1&2-accused were acquitted under Section 245(i) Cr.P.C.

2.         Brieflystated facts of the case are that on 11.06.2008, appellant/ complainant Mst. Samina Pervaiz wd/o.Pervaiz Azhar, lodged the aforesaid F.I.R. alleging therein that being owner of a flat bearing No. 5-B, situated in Khawaja Gul Muhammad Centre, Latifabad, Hyderabad she, on 01.9.2007, entered into a sale transaction in respect of said flat with accused Rao Hashim Khan, through broker Syed Afaq, the proprietor of Al- Sheraz Estate Agency, who paid him Rs. 1,12,000/= as token money and also handed over a cheque of Rs. 6,50,000/= dated 03.01.2008 for remaining sale consideration, which was dishonoured on presentation.

3.         At the trial, the trial Court framed the charge against the respondents-accused under sections 420 & 489-F, P.P.C. to which they pleaded not guilty and claimed for trial, Thereafter, the learned trial Court recorded the evidence of prosecution witnesses and statements of respondents-accused under section 342 Cr. P.C. After assessing the evidence on record, the learned trial Court acquitted the respondents-accused under section 245(i) Cr.P.C. vide judgment dated21.07.2011. Aggrieved by the same the appellant-complainant has preferred this criminal acquittal appeal.

4.         Heard the learned counsel for the appellant and respondents No. 1 & 2 as well as learned APG for the State and perused the material available on record.

5.         The learned counsel for the appellant has contended that it had been established through unimpeachable evidence that the respondents-accused committed fraud in sale transaction, and the cheque issued by the respondent No.2 against balance sale consideration was dishonoured, hence a case under sections 420 & 489-F P.P.C. was made out against the respondents-accused but the trial Court failed to apply its judicious mindwhile passing impugned judgment. However, the learned counsel has admitted that the subject flat is in possession of the complainant and the title thereof has not been transferred to respondent No.2 and the token money paid by the respondent No.2 has been forfeited. In support of his contentions, learned counsel has relied upon the case of Muhammad Sultan v. The State(2010 SCMR 806).

6.         On the other hand, the learned counsel for the respondents No.1 and learned APG appearing for the State have fully supported the impugned judgment.

7.         It is an admitted position that the appellant and the respondent No.2 entered into an agreement to sale dated 01.9.2007, whereby the appellant agreed to sell out her aforementioned flat to the said respondent. She received token money i.e. Rs. 1,12,000/= and for the balance sale consideration, she received cheque of Rs. 6,50,000/= dated 03.01.2008, which was dishonoured on presentation by the concerned Bank due to insufficient funds. Primarily, the dispute between the parties is of civil nature. Admittedly, the subject flat is still in possession of the appellant with title. The cheque was issued in pursuance of agreement to sale. There appears no element of dishonesty or cheating or defrauding the appellant. Mense rea is sine qua non for constituting offences falling under section 420 and 489-F, P.P.C. I am also of the view that the genuine sale transaction and contractual obligations, creating no liability, cannot per se fall within the mischief of section 489-F, P.P.C.The case law cited by the learned counsel for the appellant being on different footings are not application to the case of appellant. Therefore, the respondents-accused were rightly acquitted by the learned trial Court vide impugned judgment, which requires no interference by this Court on any point of law. Accordingly, instant criminalacquittal appeal is dismissed,being devoid of merit,alongwith listed application.

JUDGE