IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Acquittal Appeal No.S-57 of 2017
Appellant/Complainant : Syed Anwar Ali s/o Roshan Ali Shah
Through Mr.Habibullah Ghouri, Advocate
Respondents : The State through Mr.Raja Imtiaz Ali Solangi,
A.P.G, and Mr.Rafiq Ahmed Abro, Advocate for private respondents
Date of hearing : 10.08.2018
Date of decision : 13.08.2018
J U D G M E N T
IRSHAD ALI SHAH, J.- The appellant/complainant by way of instant Criminal Acquittal Appeal has impugned judgment dated 29.09.2017, of learned 1st Civil Judge and Judicial Magistrate, Larkana, whereby the private respondents were acquitted of the offence for which they were charged.
2. The facts in brief necessary for disposal of instant criminal acquittal appeal are that; as per appellant/complainant in his FIR, he purchased the property with its construction for sum of Rs.68,00,000/- from respondent No.1, which is situated at Allah Abad Muhalla Larkana, by way of an agreement to sale, which was executed on 21.12.2013. Out of total sale consideration, an amount of Rs.55,00,000/- as per appellant/complainant was paid to the respondent No.1, by way of cross cheques in presence of his witnesses, while remaining amount of Rs.12,50,000/- was to be paid by him to the respondent No.1, at the time of execution of registered sale deed, which the respondent No.1 failed to execute for one or other reason. On 12.07.2013, the respondents as per the appellant/complainant came to him at his village Bakrani, with a request to resale the said property to them for sum of Rs.97,00,000/-. It was further stated by the appellant/complainant that the private respondents adjusted Rs.12,50,000/- which was to be paid by him to them at the time of execution of registered sale deed towards earnest money and then promised to pay him Rs.85,00,000/- on 15.07.2013. It was not done, then they dishonestly issued two cheques worth Rs.40,00,000/- and Rs.45,00,000/- in his favour to be encashed on 26.07.2013 and 15.08.2013 respectively from Askari Bank Larkana. Those cheques when were presented before Askari Bank on 25.07.2013 for encashment, were bounced for want of insufficient funds. It was further stated by the appellant/complainant that the private respondents with one unknown culprit then occupied his shop and then threatened him of murder. The well-wishers then intervened to have “Faisla” between him and the private respondents but no “Faisla” could be held. The private respondents then mortgaged the property with the bank, obtained loan and then the appellant/complainant reported the incident to police.
3. After usual investigation, the police submitted challan of the case before learned 1st Civil Judge & J.M, Larkana. The private respondents did not plead guilty to the charge, the prosecution in order to prove it, examined PW-01 appellant/complainant, produced through him photo stat copies of agreement to sale, cheques, Bank statements, memo and letter and mortgage deed of the property, PW-02 Tanvir Hussain, PW-03 Nisar Ahmed, PW-04 ASI Abid Hussain, produced through FIR of the present case, PW-05 Ali Gul, PW-06 ASI Imtiaz Hussain Chaki, produced through him roznamcha entries, PW-07 Abrar Hussain Shah, PW-08 Mashir Athar Hussain Shah, produced through him mashirnama of place of incident, mashirnama of recovery of cheques and mashirnama of arrest of accused, PW-09 Sajjad Ali Shah, PW-10 Imran Ali Abbasi, an officer of the bank and then closed the side.
4. The private respondents in their statements recorded u/s.342 Cr.PC denied the prosecution’s allegations by pleading innocence by inter-alia stating that they have neither issued any cheque nor have sold any property to the appellant/complainant. All the agreements are fake, the memos have been prepared by the appellant/complainant with collusion of his son Munawar Shah who is officer in Bank, in order to extort money from them by taking away their cheques from their shops, the appellant/complainant as per them is dealing with business of “Viyaj/interest”. By stating so, they produced “Khata”, copy of an application u/s.145 Cr.PC, copy of C.P.No.S-503/2014, alongwith order and copy of application which they moved with President of Summit Bank Karachi and record of daily “Khata”.
5. None of the private respondents examined anyone in their defense or themselves on oath in disproof of the prosecution allegation.
6. On evaluation of evidence so produced by the prosecution, the learned trial Court acquitted the private respondents of the charge by way of judgment, which the appellant/complainant has impugned before this Court by way of instant Criminal Acquittal Appeal, as stated above.
7. It is contended by learned counsel of the appellant/ complainant that the learned trial Court has acquitted the private respondents without proper appreciation of the evidence. By contending so, he sought for action against the private respondents.
8. Learned A.P.G for the State and learned counsel for private respondents have sought for dismissal of the instant criminal acquittal appeal by supporting the impugned judgment by contending that the issue involved could only be resolved by Civil Court having jurisdiction.
9. I have considered the above arguments and perused the record.
10. The FIR is lodged with delay of about 16 days to the incident, such delay as per narration made by the appellant/complainant in his FIR occasioned as few well-wishers intervened to have “Faisla” between him and private respondents. No such well-wisher the appellant/complainant or prosecution was able to examine to prove such delay. In that situation, the delay in lodgment of the FIR could not be lost sight of, as the same is reflecting consultation. The dispute between the appellant/complainant and the private respondents apparently is relating to sale and re-sale of the property. The cheques worth Rs.40,00,000/- and Rs.45,00,000/- which allegedly were issued in favour of the appellant/complainant by one of the private respondents were on account of re-sale of the property. One of the cheque so issued allegedly as per Bank Memo was dishonored on 3rd day of lodgment of the FIR of the present case. How it happened? It is not explained properly by the appellant/complainant or prosecution, which appears to be significant, which smells of something wrong. If for the sake of arguments, it is believed that after purchase of the property, the appellant/complainant re-sold the same to private respondents then such re-sale of the property was illegal as title of the appellant/complainant to do so was not perfect. No document with regard to re-sale of the property even otherwise the appellant/complainant has produced before learned trial Court. The appellant/complainant during course of his examination was fair enough to admit that he gave Rs.10,00,000/- to respondent Ghulam Hussain at monthly profit of Rs.22,580/- which profit he regularly received from him. If it is so, then it put the appellant/complainant within purview of money-lender. Be that as it may, the dispute between the parties with regard to sale and re-sale of the property is appearing to be of a civil nature which could only be resolved by Civil Court having jurisdiction which could not be resolved by a Court of criminal jurisdiction, under the grab of allegation of criminal intimidation, trespass and issuance of cheques dishonestly, most particularly when the private respondents have put very specific denial to such allegations. In these circumstances, the learned trial Court was right to record acquittal of the private respondents by extending them benefit of doubt.
11. It is settled by now that the acquittal carry with it double presumption of innocence and interference with acquittal is narrow and limited, which could only be interfered with when the judgment of the acquittal is found to have been passed in arbitrary and cursory manner.
12. In case of State and others vs. Abdul Khaliq and others (PLD 2011 SC-554), it is held by the Hon’ble Court 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. 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. Judgment of acquittal should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the reappraisal 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”.
13. Nothing has been brought on record which may suggest that the impugned judgment has been passed by learned trial Court in arbitrary or cursory manner, which may call for interference with it by this Court by way of instant Criminal Acquittal Appeal.
14. In view of above, the instant criminal acquittal appeal is dismissed accordingly.
JUDGE