IN THE HIGH COURT OF SINDH,BENCH AT SUKKUR

CriminalAcquittal Appeal No.S-254 of 2019

Appellant/complainant: Khan Muhammad Through

Mr.Safdar Ali Jogi, Advocate

Date of Hearing: 02.03.2020.

JUDGMENT

ZULFIQAR ALI SANGI, J. This criminal acquittal appeal is directed against the judgment dated;06.12.2019, passed by the Court of learned Civil Judge & Judicial Magistrate / Model Trial Magistrate Court, Mirwah in Cr. Case No.45/2019 Re- The State Vs. Tehmoor Ali, arising out of Crime No.33/2019 registered at P.SThariMirwah, District Khairpur, for offences punishable under Sections 489-F & 420 PPC, whereby the learned trial Court has acquitted the accused/respondent namely Taimoor Ali from the charge.

2. The facts leading to the appellant’s/complainant’s case are that complainant and accused are neighborsto each other. The complainant purchased a plot in the consideration of Rs.18,00,000/- from accused Taimoor Ali, measuring about 30 ghuntas situated near the village of accused, in presence of Abdul Ghafoor and GhulamNabi. The villagers stated complainant that the above plot does not belong to Taimoor Ali and he has committed fraud with the complainant, on whichcomplainant approached the accused and stated him the above facts and further asked him to return the amount. Thereafter, on 05.12.2018 at 04:00 pm,the complainant met with accused in presence of above witnesses where accused issued one cheque of National Bank of Pakistan branch Mirwah bearing Account No.4047275007 and cheque No.17128312 of Rs.1800000/-, for05.01.2019and was dishonored on presentation for which bank issued memo on 08.02.2019. Hence complainant reported the incident at Police Station.

3. After completion of usual formalities, the charge sheet was submitted before the concerned Court of law.The charge was framed against the accused at Ex.2, to which he pleaded not guilty and claimed his trial vide a plea recorded at Ex.3.

4. In order to prove the charge against the accused, the prosecution examined in all (04) four prosecution witnesses, however, the accused denied examininghimself on oath under Section 340 (2) Cr.P.C.

5. The learned trial Court after hearing the learned counsel for the appellant and evaluating the evidence, acquitted the accused of the charge

6. Learned counsel for the appellant has contended that prosecution established the case against the respondent beyond the reasonable doubt; that all the prosecution witness supported the case of complainant; that on the basis of minor contradiction respondent was acquitted; that oral evidence was supported by documentary evidence; that trial court not appreciated the evidence according to law; that this is clear case of misreading and non-reading of the evidence; that evidence produced by the prosecution was sufficient to convict the respondent but trial court acquitted him. He lastly, prayed that respondent may be convicted in the above charge.

7. I have heard the learned counsel for the appellantand also perused the material available on the record.

8. On perusal of the impugned judgment, it reveals that the learned trial court has recorded the acquittal in favor of the respondent with significant and sound reasoning. The complainant before the trial court has not established that on what date and time he hand over Rs.1800000 /- to the respondent nor there is any evidence about the particulars of the plot which was purchased by the appellant from respondent.Though it was alleged in the FIR that an agreement was undertaken in between the parties but the same was not produced before the trial court at the time of recording evidence. Investigation officer also failed to collect such evidence about the whereabouts of the plot and its belonging.All the witnesses given contradictory evidence on each aspect of the case and the trial court in its judgment has discussed the same in detail.

9. 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) Onpresentation, the chequesare 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.

10. It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Supreme Court in the cases of State Versus Abdul Khaliq and others (PLD 2011 SC 554), Honourable Supreme Court has held as under:-

From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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. It has been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja FahimAfzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.

11. Based on the above discussion, I have found that the acquittal of the respondent does not suffer from any illegality to call forinterference by this court with the impugned judgment. Based on the law concerning an appeal against acquittal and the fact that the learned trial Judge has advanced valid and cogent reasons for passing a finding of acquittal in favor of the respondent and I see no legal justification to disturb the same as such the appeal against the acquittal of the respondent is dismissed in Limini.

12. These are the reasons for my short order dated: 02-03-2020 announced in court.

JUDGE