Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Acq. Appeal No. S– 248 of 2019

Date of hearing : 03.02.2020.

Mr. Shah Nawaz Vaseer Advocate for appellant/complainant.

Mr. Zulifqar Ali Jatoi, Additional P.G.

J U D G M E N T

NAIMATULLAH PHULPOTO, J.– Respondent Sanaullah son of Abdul Ghafoor bycaste Dadupoto was tried by IInd Civil Judge & Judicial Magistrate, Mirpur Mathelo in criminal case No. 14/2017 of Police station Belo Mirpur (The State v. Sanaullah) for offences under Sections 489-F, 506(2) PPC. After regular trial, respondent/accused has been acquitted by the trial Court vide judgment dated 04.09.2017, for the following reasons:

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“ 10. Honourable Supreme Court of Pakistan in case of Muhammad Sultan Versus The State (2010 SCMR 806) has provided the following ingredients of section 489-F PPC

“A perusal of section 489-F P.P.C. reveals that the provision will be attracted if the following 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 cheque should be

(a) to repay a loan; or

(b) To fulfill an obligation (which is wide term inter alia applicable to lawful agreements contracts, services, promises by which one is bound or an act which binds person to some performance).

(iv) on presentation the cheque is dishonored."

On above ingredients I am going to discuss evidence produced by the prosecution.

3. Complainant of the case in his examination in chief said that he was present at his otaq along with the PWs when accused came and requested to him for giving him 3 buffaloes which he gave him and accused for security gave him one cheque which was dishonored on its presentation in the bank and after taht when the accused went to the otaq of accused along with his PWs for demanding his rupees then accused gave him murderous threats. Then after he lodged this instan: FIR against the accused.

4. At the statement of accused, accused totally denied the allegation of giving cheque. The latter portion of the provision puts some burden on the accused to prove that he made arrangements with the bank that the cheque is honoured and that the bank is at fault in was not honouring the cheques. But this is when the accused has accepted his liability/obligations and bona fide issued the cheque or the prosecution has proved his liability/obligations beyond shadow of reasonable doubt. Othetwise, all necessary ingredients of section 489-F, P.P.C. have to be fulfilled. Reliance is placed in 2009 MLD 512. Messrs Pak Ltd. Through Manager Finance versus Province of Punjab Through Home Secretary and others. It is a cardinal principle of criminal jurisprudence that burden to prove commission of an offence with all its ingredients lies on the prosecution and even a slight doubt would be resolved in favour of the accused. Article 117. Qanun-e-Shahadat Order. 1984 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which her asserts, must prove that those facts exist. It further provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. In cases involving dishonour of cheque burden to prove that the cheque issued either towards repayment of a loan or fulfillment of an obligation lies on the prosecution. Thus, to prove liability or obligations of the accused is as onerous as proving issuance of cheque with dishonest intention and its dishonour on presentation. In coming to the conclusion that the offence stands proved against the accused beyond reasonable doubt, the Court should first see whether prosecution has successfully discharged its burden and it should not be swayed by failure of the accused to prove his defence. I may refer here to the case of ABDUL HAQUE vs. THE STATE and another (PLD 1996 S.C. page no. 1). There are major contradiction in the statements of complainant and his eyewitnesses and the statement given by the complainant in the FIR regarding the mode and manner of giving cheque and taking loan which cannot be ruled out here. According to the complainant, accused has given cheque to him at his otaq which is mentioned in the FIR as otaq of the complainant near Insaf kanta but eyewitness stated that the said cheque was given by the accused to the complainant in village chakar khan. Such statements creates doubt in the prosecution story. Issuance of cheque was denied by the accused and complainant went failed to prove that accused has given such cheque to him. Now I come to the third ingredient of section 489-F P.P.C. which is purpose of issuance of cheque, which should be to repay a loan or fulfill an obligation. Accused has stated that he had not issued such cheque to the complainant. Complainant stated that the said cheque was issued by the accused after taking 3 buffalos from him. But in support of his claim complainant did not produce any documentary proof that accused has bought three buffaloes from him even though complainant was totally silent that said agreement was written or not but eyewitness namely Khadim Hussain has admitted that such agreement was done. He admitted that "It is correct that agreement was done in the village Chakar khan after seeing the buffalos". From above statement of the eyewitness it is clear that if some kind of agreement was done between the accused and complainant then it was duty of the complainant that he must have submitted such agreement to the I.O of the case or before this court when he was examined at Ex.04. Complainant in his examination in chief said that he has given buffaloes to the accused and had received cheque as guarantee but from brief perusal of record it reveals that there are so many contradictions in the statements of complainant and eyewitnesses which cannot be ignored here for fair and just conclusion of case. According to the complainant he has given buffalos to the complainants which were taken by three unknown persons who were called by the complainant, however according the eyewitness namely Khadim Hussain buffaloes were taken by the accused himself and another man by feet. It is also important to discuss here complainant has stated that these buffalos were purchased by him from cattle market Mirpur Mathelo but he failed to provide such purchasing receipts of the cattle market before this court. Another important element which is also cannot be ignored here. Bank manager Hamad Ahmed st ta Usually issue the memo of cheque after finishing bank timings but complainant has forced him for issuing the memo at 3:40 pm which shows that complainant wanted to involve the accused with malafide intention Therefore, the ingredient number 3 is also not proved. Now I come to the second and fourth ingredient of section 489-F PPC which is whether cheque was issued dishonestly and it was dishonored? Issuance of cheque is not admitted by the accused and it is also not proved that there was some agreement of the sale of buffalos had done between accused and complainant. Prosecution went completely failed to prove that the said cheque was issued dishonestly as there is no independent witness who supports the version of complainant. PW Khadim Hussain produced by the complainant is the real brother of the complainant. As for as the section 506(ii) PPC is concerned complainant has neither in the FIR nor in his examination-in-chief stated that when and how the accused has given such threats of murder to him. FIR is totally silent regarding the mode, manner, time and place of the incident of section 506(ii) PPC. Complainant did not utter any single word of murderous threats in his examination-in-chief. From above contradictions it is crystal clear that complainant and PWs are not on one page. Witnesses are the close relatives of the complainant and complainant as well as I.O failed to assign any single independent witness for authenticating of the case. It is well settled principle of appreciation of evidence that evidence of highly interested and partisan witnesses should be corroborated by any direct or indirect independent evidence. Moreover the site inspection of the place also doubtful as the IQ did not produce any departure entry when he left the PS for visiting place of incident which also creates doubt and supports the version of arguments of learned counsel for the accused that I.O has not visited the place of incident and has completed all the legal formalities at PS. Investigation officer did not bother to investigate about the authenticity of the incident which creates doubt. In foregoing factual position, prosecution failed to prove the case against present accused beyond any shadow of doubt. The above infirmity in the prosecution case creates certain doubts which must be resolved in favour of the accused. The evidence produce by the prosecution appears to be not confidence inspiring and discussed contradictions and discrepancies are sufficient to shed a dent to the entire prosecution case. Which creates heavy amounts of doubt in the prudent mind. It is for the prosecution to prove its case in the minner it has set up the case and in the event or not proving the case in that manner. the prosecution case cannot be said to have been proved beyond reasonable doubt. In case where doubt arises whether regarding commission of the offence, identity of the accused, with holding of direct evidence or by material contradictions in the statement of the prosecution witnesses vis à vis the case sent up by the prosecution on in any other manner, which does not maintain the connectivity of facts asserted by the prosecution, reasonable doubt raises and under the circumstance, it is better to err towards the side of accused in acquitting him than to convict him on doubtful evidence.

11) For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. In this regard further guidance can be taken from the case law reported in P.Cr.L.Jr 2015 585 [Peshawar] Vol. XLVIII-2015 Sajjad Ahmed Vs: the state, as follows:

Criminal trial---

1... Benefit of doubt---Entitlement-Prosecution, Primarily was bound to establish guilt against accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence, enabling the court to draw conclusion: whether prosecution had succeeded in establishing accusation against accused or otherwise..-if it would come to the conclusion that the charges so imputed against arrin imputed against arriend doubt, then accused would become entitled for his release on getting benefit to doubt--- If any single and slightest doubt was created benefit of the same, would go to accused; and it would be sufficient to discredit the prosecution story and entitled accused for acquittal---Many doubts were not required in the prosecution case, but any reasonable doubt arising out of the prosecution evidence, pricking the judicial mind was sufficient for acquittal of accused---Benefit of doubt must accrue in favour of accused as a matter of right and not of grace---Accused was always considered as the most favourable child of law, and every benefit of doubt would got to him regardless of fact whether he had taken any such plea or not. [p.593] K.”

2. Mr. Shah Nawaz Vaseer, learned advocate for the appellant mainly contended that trial Court has failed to consider the prosecution evidence according to settled principles of law. He further submits that respondent/accused issued cheque which was dishonoured on its presentation before the bank. He also submits that complainant and the witness have fully supported its case and accused has committed the offence under section 489-F PPC. Lastly, it is submitted that acquittal order recorded by the trial Court may be converted to the conviction of respondent/accused.

3. Mr. Zulifqar Ali Jatoi, Additional Prosecutor General argued that impugned judgment passed by the trial Court is based upon sound reasons; that the case was investigated by the Investigating Agency but I.O of the crime found the case false and submitted such report for disposal of ‘B’ class, however, learned Magistrate took cognizance of the matter and on his direction the challan was submitted; appellant/complainant did not prove its case before trial Court. Lastly argued that trial Court has rightly recorded the acquittal in favour of the respondent/accused and after acquittal, he has double presumption of the innocence. It is prayed for dismissal of this acquittal appeal.

4. It appears that after usual investigation of the case, Investigation Officer recommended of case for disposal in ‘B’ class. However, concerned Civil Judge & Judicial Magistrate did not agree with Investigation Officer and took cognizance of the offence. There are material contradictions in the evidence of complainant and P.Ws with regard to the place of issuance of the cheque, So far the obligation is concerned, it has also not been established. Appellant/complainant failed to prove that respondent/accused issued cheque towards repayment of loan for fulfillment of an obligation, which was dishonoured on its presentation. It was primarily duty of the prosecution to establish guilt against the respondent/accused without shadow of reasonable doubt by producing trust worth, convincing and coherent evidence, enable the Court of law to draw the conclusion but in this case prosecution failed to prove its case and trial Court has assigned sound reasons for recording the acquittal. Trial Court in the judgment has highlighted the contradictions in the evidence of prosecution witnesses, on material particulars of the case. Judgment of the trial Court is based upon sound reasons. Counsel for the appellant could not satisfy the Court that judgment of acquittal passed by trial Court is perverse or arbitrary. It is by now well-settled that scope of the acquittal appeal is quite narrow and limited. While hearing the acquittal appeal, this Court is not supposed to re-appreciate the evidence, but only Court has to see whether judgment of the acquittal is perverse or arbitrary. In this case, impugned judgment is based upon the sound reasons and requires no interference. Rightly, reliance is placed upon the case of Zulfiqar Ali v. Imtiaz and others (2019 SCMR 1315), wherein Hon’ble Supreme Court has observed as under:

“ 2. According to the autopsy report, deceased was brought dead through a police constable and there is nothing on the record to even obliquely suggest witnesses’ presence in the hospital; there is no medico legal report to postulate hypothesis of arrival in the hospital in injured condition. The witnesses claimed to have come across the deceased and the assailants per chance while they were on way to Chak No.504/GB. There is a reference to M/s Zahoor Ahmed and Ali Sher, strangers to the accused as well as the witnesses, who had first seen the deceased lying critically injured at the canal bank and it is on the record that they escorted the deceased to the hospital. Ali Sher was cited as a witness, however, given up by the complainant. These aspects of the case conjointly lead the learned Judge-in-Chamber to view the occurrence as being un-witnessed so as to extend benefit of the doubt consequent thereupon. View taken by the learned Judge is a possible view, structured in evidence available on the record and as such not open to any legitimate exception. It is by now well-settled that acquittal once granted cannot be recalled merely on the possibility of a contra view. Unless, the impugned view is found on the fringes of impossibility, resulting into miscarriage of justice, freedom cannot be recalled. Criminal Appeal fails. Appeal dismissed. ”

5. For the above stated reasons, this Acquittal Appeal is without merit and the same is dismissed.

J U D G E

Irfan/PA.