ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Acq. Appeal No.S-63 of 2019

 

Date

               Order with signature of Judge

           

                                                                 

1.      For orders on office objection at flag ‘A’

2.      For hearing of main case

 

 

 

10.06.2018.

 

 

Pir Imtiaz Ahmed Shah Jilani, Advocate for the Appellant

Mr. Khalil Ahmed Maitlo, DPG

 

                 

 

 

 O R D E R

 

 

Adnan-ul-Karim Memon, J:-   Basically, the Appellant has called in question the order dated 25.03.2019  passed by the learned 3rd Judicial Magistrate, Khairpur, in  Criminal Case No.89/2018,  whereby private Respondent namely Ramz Ali has been acquitted from the charge of section 489-F PPC. The Appellant being aggrieved by and dissatisfied with the acquittal of the private Respondent has filed the present Acquittal Appeal, before this Court on 22.4.2019 on the premise that he entered into an agreement with him for getting Government job in Education Department, Government of Sindh. Per Appellant, he paid Rs.200,000/- to the Respondent No.1 for the aforesaid purpose, however, he could not fulfill his part of contract and failed to arrange the said job for the Appellant and kept him on hollow hopes and on demand of his payment, the Respondent No.1 issued a cheque of Rs.200,000/- dated 15.1.2018  UBL Branch Kotri Kabeer), in his favour, however when he produced the aforesaid cheque for encashment in the concerned Bank, the same was dishonored, on the endorsement that the account of the private Respondent was closed and such memo of dishonored of cheque was issued by the Manager of the Bank. Appellant being aggrieved by and dissatisfied with the aforesaid criminal conduct of the Respondent No.1, lodged FIR No.48 of 2018 against him on 14.8.2018, under section 489-F P.P.C. with Hingorja Police Station. Investigating Officer, after usual investigation submitted charge sheet against the Respondent No.1 before the competent court of law. Learned trial Court after framing the charge proceeded against the Respondent No.1 and after recording the examination in chief of the Appellant, acquitted him from the charge by exercising  powers under section 249-A, Cr.P.C. vide order dated 25.3.2019.

2.     Pir Imtiaz Ahmed Shah Jilani,  learned counsel for the Appellant has mainly contended that the impugned Order is bad in law and on facts; that impugned Order is in violation of Article 10-A of Constitution, 1973; that acquittal of private Respondent has caused grave miscarriage of justice; that  the appointment order of peon was required to be issued in his favour by the Respondent No.1 but he failed to secure the job, thus was called upon to explain his position either to ensure the appointment of the Appellant in Government Service or refund the said amount to the Appellant but of no use, thus compelling the Appellant to institute a criminal proceedings against him. Learned counsel emphasized that there was an oral Agreement between the parties with regard to secure the aforesaid appointment in Government service on certain terms and conditions, which needed to be enforced under the law; that the private Respondent  recoiled from the Agreement/Iqrarnama and did not perform his part of contract and on demand of returning of  the aforesaid amount, he issued a cheque of Rs. 200,000/-.in his favour, which was later on dishonored, thus attracted section 489-F, P.P.C; that the learned trial court acquitted the Respondent No.1 on the basis that there is no probability of his conviction if the entire evidence is recorded  and failed to consider that Appellant had a cause of action against the Respondents No.1 to institute the criminal case under section 489-F P.P.C  against him on the premise that a cheque issued in his favour was later on bounced by the concerned Bank, thus the case of the Appellant was based on prima-facie evidence and separate from the civil liability as depicted in the impugned order: that the learned trial Judge has failed to appreciate that the section 489-F, P.P.C is prima-facie offence for which the Respondent No.1 was/is liable to account for and cannot be absolved from his illegal action; that the learned trial Judge erred in exercising the powers conferred upon him under section 249-A Cr.P.C and wrongly acquitted him from the Charge without completing the evidence of the parties, which impugned order is not sustainable in law; that the learned trial Judge has failed to appreciate that the accused  cannot be acquitted  from the criminal case, without recording evidence and hearing the prosecutor and complainant of the case; that it was also ignored in the impugned judgment that the Respondent No. 1 can be convicted for offence under section 489-F, P.P.C, if the ingredients of the aforesaid law attracted, which could only be thrashed out after recording the entire evidence of the parties; that the matter was required to be adjudicated by the learned trial court on merits rather than acquittal of the Respondent No.1 on technical grounds. Per learned Counsel the learned trial Judge in his findings in the Impugned Order erred in holding that there is no probability of the accused being convicted of the offence, without considering various aspects of the material produced before him in the shape of documentary evidence, which were sufficient to proceed the matter on merits; that the learned trial court in his conclusion held as under:-

   “In view of above discussed facts and provisions, my observation is that this case is hit by the provision of law of contract act 1872 section and also does not fall the ambit of section 489-F of PPC as ingredients are settled by the Honourable Supreme Court of Pakistan in case law 2010 SCMR 608 one of them is (b) to fulfill an obligation (which in a wide term inter alia applicable to lawful agreements, contract, services, premises by which binds a person to some performance), the consideration of this agreement is illegal and can not be enforced the statement of complainant also recorded in which he admitted that he paid rupees to accused for job for the post of peon in education department, the illegal contract is not enforceable same  I hit by the section 24 of contract act of 1872.

    I am of the considered opinion that the act of giving and taking bribe is also an offence. Rich and wealthy people get jobs in lieu of money whereas poor people keep waiting for jobs to get but due to corruption such people are deprived of their jobs on merits in our country which is serious concern. This agreement is also against the Constitution of Islamic Republic of Pakistan 1973. Now it is time to end and finish corruption, . Law does not protect criminals as it is Natural justice and principle of equity that “Who he seeks equity must do equity”. Another principle is that “who he seeks equity must come with clean hands”.

   Heard Learned ADPP And Defense Counsel I have reached on Conclusion as under:-

08. In the given situation and in the light of above observation and the available       record, I find myself convinced that there is no probability of conviction of the       accused in future even if the entire evidence is recorded. Hence it would be an       exercise  in futility to proceed with the case. Therefore, the accused Ramz Ali          s/o Khan Muhammad Thebo I acquitted U/S 249-A, CR.P.C of the charge under            Sections 489-F, of P.P.C. The accused is pr5esent on bail and his bail bond                           stands cancelled and surety is discharged accordingly”

 

Learned counsel further contended that there is no reasonable ground to believe that the Respondent No.1 has not committed the offence as alleged in the FIR;  that the learned trial Court has not heard the complainant and prosecutor, while passing the impugned order of acquittal; that no application under section 249-A Cr.P.C has been moved by the Respondent No.1 but the learned trial Court exercising its powers, acquitted  him, without hearing the parties; that perusal of case diaries reveals that respondent’s side delayed to cross-examine the prosecution witnesses; that the learned trial Court has examined only complainant and did not give him chance to produce his witnesses; that the complainant has fully supported the prosecution case in his evidence but learned trial court  gave weight to the false statement of respondent’s side; that learned trial Court has not applied its judicious mind at the time of passing the impugned order because it is based on mere presumption, assumption and inference which is not warranted by law. He lastly prayed for setting aside the Impugned Order dated 25.3.2019 passed by the learned trial Court; hence the matter may be remanded to decide the lis between the parties on merits. In support of his contention learned counsel for the appellant placed reliance on the case of Asif Iqbal v/s District and Sessions Judge, Khushab and others (2011 SCMR 720). 

3.      During the course of arguments, I put a query from the learned counsel for the Appellant that as to how the criminal case could be lodged by the Appellant before the learned trial Court, in view of the void Agreement? He in reply to the query has submitted that this is an admitted amount mentioned in the verbal Agreement/Iqrarnama; therefore on the basis of this admission, he issued a cheque in his favour to return the aforesaid amount and the same was not encashed on the premise that the account of the Private respondent was closed, which amounts cheating, thus attracted the penal action against the private Respondent and the matter was liable to be decided on merits.

4.     I have heard learned counsel for Appellant, briefly on the point of maintainability of the present Criminal Acquittal Appeal and perused the material available on record and case law cited at the bar.

The vital questions that clinched the controversy in hand are as follows,

                                               (i) Whether the charge against Private Respondent was groundless?

                                               (ii)Whether there was no probability of the Respondent No.1 to be convicted of offence under section 489-f PPC?

                                               (iii)Whether the respondent was rightly acquitted from the aforesaid charge under section 249-A Cr.P.C?

5.     To appreciate the aforesaid factum of the case and law cited supra, let notice be issued to the private Respondent as well as learned APG for a date to be fixed by the office, in the meanwhile private Respondent is directed to furnish security in the sum of Rs.100,000/- (Rupees One Lac) and PR bond in the like amount, with the Additional Registrar of this court within a period of two weeks from the date of this order.

                                                                 

                                                                                                                                 JUDGE