IN THE HIGH COURT OF
SINDH BENCH AT SUKKUR
Cr. Acq. Appeal No. S-47 of 2020
Appellant: Muhammad
Nawaz, through
Mr.
Sardar Akbar F. Ujjan,
Advocate
Respondent: Ali
Sher, through
Mr.
Rukhsar Ahmed Junejo,
Advocate
State: Through
Mr.Aftab Ahmed Shar,
Additional
Prosecutor General
Date of hearing: 29.11.2021
Dated of decision: 29.11.2021
JUDGMENT
Zulfiqar Ali Sangi, J. – Instant Criminal Acquittal Appeal is filed against the judgment dated
29.02.2020, passed by learned 1st Civil Judge/Judicial Magistrate
& MCTC, Kandiaro, whereby the learned trial Court
has acquitted the respondent No.1/accused of the charge.
2. As
per FIR, the allegation against the respondent is that on 07.02.2019, he
purchased a GLI car Model 2014, in sale consideration of Rs.20,20,000/- and
a Suzuki Mehran car
in sale consideration of Rs.7,80,000/- from the appellant and issued him
two cheques of Rs.20,50,000/- and Rs.7,80,000/-. On
presentation of the said cheques in the concerned
bank the same were bounced. Appellant met with the respondent and apprised him
about dishonoring of the cheques and demanded the
said amount to which he kept him on false hopes. Thereafter
appellant got registered FIR against the respondent after getting such
directions from the justice of Peace.
3. Learned
counsel for the appellant/complainant has contended that the impugned judgment passed by the learned trial Court is illegal, unlawful and against
the principle of justice; that this is the case of complete misreading and
non-reading of evidence; that the learned trial Court has failed to appreciate
the version of the complainant supported by other witnesses; that the
complainant has fully proved his case against the accused. He prayed for converting acquittal of the respondent into
conviction.
4. Conversely,
learned Counsel for the respondent/accused submitted that the respondent is
innocent and has falsely been implicated by the complainant in this case; that
the appellant/complainant has miserably failed to establish its case against
the respondent/accused and learned trial court has rightly acquitted the
respondent/accused. He prayed that instant acquittal appeal may be dismissed.
5. Learned
DPG representing the State, while adopting the arguments of learned counsel for
the respondent/accused, argued that the learned trial court has rightly passed
the impugned judgment with sound reasons by considering the material available
on record, hence requires no any interference by this Court.
6.
I have heard learned Counsel for the appellant/ complainant, learned counsel
for respondent/accused, as well as learned DPG and perused the material
available on record.
7. Perusal
of record shows that appellant has miserably failed to establish extra ordinary
reasons and circumstances, whereby the acquittal judgment recorded by the trial
court may be interfered with by this court. It appears that the complainant and
witnesses have failed to prove allegation against the respondent/accused by
producing sound and cogent evidence. The impugned judgment has been passed by
the learned trial court with solid reasons. For the sake of
convenience, relevant paras of the impugned judgment are
reproduced as under:-
“Although the accused
admitted that, he was borrowed amount from the complainant of Rs.13,00,000/ and
he was deposited his cheques as a security, but the
accused could not be held responsible
for the amount mentioned in the cheques in question
without proving his liability for issuance of
the cheques of such a huge amount. It was the
duty of the complainant to prove his contention as alleged in the FIR, that, in
fact the cheques in question were issued for payment
of sale consideration amount of the cars in question, but the record produced
by the complainant is unbelievable and against the nature prudence as well as
the same negated by the judicial record produced by the accused regarding
stealing the car in question from his real owner, which was alleged by the
complainant to have been sold out by him to the accused. Thus the accused could
not be convicted for the offence with proving his liability.
It is also settle
principle of law that mere issuance of cheque is not
sufficient to constitute an offence but there should be liability and
dishonesty on the part of accused for issuance of the cheque
and in this respect reliance placed upon case law 2015 YLR 691, (Shahid Hussain Versus Prem
Kumar).
The prosecution has
failed to prove liability of the accused for issuance of the cheque in question behind reasonable doubt. Thus, keeping
in view the fact and circumstances of the instant case as well as ingredients
of provision of section 489-F, the prosecution has failed to establish that the
cheque was issued by the accused for repayment of
loan amount or discharge of an obligation. The prosecution was required to
prove all ingredients of the offence, but it failed to bring confidence
inspiring evidence on record to prove that accused in fact purchased cars in
question from the complainant and such cheques were
issued for discharge of his liability, hence the issuance of the cheque with dishonest intention also remained doubtful and
not proved by credible evidence.
There is no cavil
to the preposition that if there is a single circumstance which creates
reasonable doubt in the prosecution case, the same is sufficient to give
benefit of the same to the accused, whereas the instant case is replete
circumstances which create serious doubt about the alleged transaction and
issuance of the cheque for payment of the sale
consideration amount as alleged by the complainant and issuance of the cheques for payment of subject amount. As per saying of
Holy Prophet (P.B.U.H) the mistake to release a criminal is better than
punishing an innocent.
The principle was
followed by the Honurable Supreme Court of Pakistan
in the case law PLD 2002 SC 1056, wherein observed as under:-
“…..it will not be out of place
to mention here that this rule occupies a pivotal place in the Islamic Law and
it enforced rigorously in view of the saying of the Holy prophet (P.B.U.H) that
the “mistake of Qazi (Judge) in releasing a criminal
is better than his mistake in punishing an innocent”
In consequences of
the above observation, the point No.01, answered as doubtful being not proved.
POINT NO:2
The cardinal
principal of criminal law is that the burden to prove the offence is always on
the prosecution. While in the present case the prosecution has failed to
discharge its burden satisfactorily. The prosecution has not proved the case beyond
shadow of reasonable doubt. Under these circumstances the accused is entitled
to the benefit of doubt as a result, I hereby acquit the accused Ali Sher son of Abdul Razaque Koondhar from the charge u/s 245 (i). The accused present
on bail his bail bond cancelled and his surety is hereby discharged.”
8. Learned
counsel has relied upon an agreement which is available at page 57, it’s true translation is available at page 59 of the
appeal. Paragraph No.1, of such
agreement is reproduced as under:-
“1. That the vendor the
party No.1 has sold the above mentioned vehicle in the sum of Rs.20,50,000/-
(Twenty Lacs Fifty Thousands) to the party No.2, which he shall pay to the party No.1 in (12)
installments to the party No.1. The first (12) installments shall be Rs.165,000/- (one lac sixty five thousands rupees). The party No.2
shall pay the first installment of
Rs.165,000/- (One Lac Sixty Five Thousands rupees) to the party No.1 on
07.03.2019 and the party No.2 shall pay the final installment of Rs.70,000/-
(in words Seventy Thousands) to the party No.1 on 07.03.2020 and shall be
responsible for the payment. The Executant, the party No.2 has kept as
guarantee his shop No. II-A-29 area 475-00 Square feet
situated in Khanwahan town Taluka
Kandiaro District Naushahro
Feroze and has given its original documents without
possession as mortgage to the party No.1. The party No.1 has given as surety
his personal cheque No.1659687466 of Rs.20,50,000/- (Twenty Lacs Fifty
Thousands) to the vendor party No.2. In case the party No.2 did not pay the
installment on due date then he shall have to pay 10% as penalty, which the
party No.1 shall collect from the party No.2 along with the penalty. If the
party No.2 failed to pay two regular installments, the party No.1 shall have
the right to recover his amount in due course of law or the party No.2 shall
take in to possession the mortgaged shop. The vendee of the car, party No.2
shall execute the registered sale deed of his shop to the vendor, the party
No.1. In lieu of the shop and the cheque the original
file and the number plates of the car have been delivered to the party No.2.”
9. It
reflects from the above findings of the trial court and the agreement submitted
by the appellant/complainant himself that appellant/complainant has concealed
the facts in FIR and has not mentioned that there was dispute on some
installments. Therefore, the trial court has rightly observed that the prosecution
has failed to prove its case beyond reasonable doubt.
10. It
is not out of context to make here necessary clarification that an appeal
against acquittal has distinctive features and the approach to deal with; the
appeal against conviction is distinguishable from the appeal against the
acquittal because presumption of double innocence is attached in the latter
case. Order of acquittal can only be interfered with, if it is found on its
face to be capricious, perverse, and arbitrary in nature or based on
misreading, non-appraisal of evidence or is artificial, arbitrary and lead to
gross miscarriage of justice. Mere disregard of technicalities in a criminal
trial without resulting injustice is not enough for interference. Suffice is to
say that an order/judgment of acquittal gives rise to strong presumption of
innocence rather double presumption of innocence is attached to such an order.
While examining the facts in the order of acquittal, substantial weight should
be given to the findings of the lower Courts, whereby accused were exonerated
from the commission of crime as held by the Apex Court in the case of Muhammad Ijaz Ahmad v. Fahim Afzal (1998
SCMR 1281) and Jehangir v. Amanullah and others (2010 SCMR
491). It is settled principle of law as held in the plethora of case law that
acquittal would be unquestionable when it could not be said that acquittal was
either perverse or that acquittal judgment was improper or incorrect as it is
settled that whenever there is doubt about guilt of accused, its benefit must
go to him and Court would never come to the rescue of prosecution to fill-up
the lacuna appearing in evidence of prosecution case as it would be against
established principles of dispensation of criminal justice.
11. There is hardly any improbability or infirmity in
the impugned judgment of acquittal recorded by the learned trial court, which
being based on sound and cogent reasons, does not warrant any interference by this Court
and is accordingly maintained and the instant appeal is dismissed.
JUDGE
Suleman
Khan/PA