IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Cr. Acq. Appeal S-17 of 2022        :           Asif Ali vs.

Mohammad Ameen

& Another

For the Appellant                             :           Mr. Riaz Ahmed Soomro    Advocate

Date of hearing                                :           18.02.2022

Date of announcement                  :           18.02.2022

ORDER

Agha Faisal, J.         (1) Granted. (2) This appeal challenges judgment dated 19.01.2022, whereby the learned Civil Judge and Judicial Magistrate-II (MCTC), Mehar was pleased to acquit the accused in respect of an F.I.R alleging violation of Sections 489-F and 506(2) P.P.C. The operative part of the judgment is reproduced herein below:

"Complainant at his deposition did no say that on which date, time the cheque in question was issued by accused with dishonestly, complainant also failed to produce any evidence regarding business transaction which he alleged in FIR, no such as agreement is produced, neither witness has supported to his version regarding issuance of cheque in-question, PW-02 Riaz Ali Janweri also denied and admitted that, cheque was not issued in his presence, as far as incident of issuance of threats is concerned, I have gone through the evidence adduced by prosecution, which reveals that, time of alleged incident is not mentioned by Complainant, neither his witness disclosed the time of alleged incident. Bank Manager of HBL Radhan Station branch stated that Memo of cheque was not issued by branch, however cheque in-question was stopped for encashment on 17-4-2020. However PW-05 Bank manager stated that cheque was returned due to insufficient funds in the account of drawer. On other hand I.O was failed to collect the material evidence of alleged transaction, no such as witness of transaction was associated, nor independent witness has been produced, the evidence which produced by the prosecution is not reliable, such evidence of all PWs is not corroborative in nature and same does not inspire so confidence hence it is well settled principle of law based on Latin Maxim Falsus in uno, Falsus in omnibus. which is also relied by the Honorable Supreme Court of Pakistan in the case of PLJ 2019 SC (.. C) 265. In which Honorable Supreme Court has held that, a witness who lied about any material fact must be disbelieved as to all facts. Hence in view of above terms the evidence of All PWs is hereby discarded as whole.

14.           Complainant has been failed to establish on record that there had been any transaction between the parties for which the cheque had been issued and subsequently was dishonored. As per article 22 of Qanun-e-Shahdat ordinance 1984. Time of transaction when it was held is relevant fact.

15.           I have gone through the record produced before this Court by the prosecution side and evidence adduced by prosecution and considered the contentions of both sides, record reveals that, the evidence adduced by prosecution is not corroborative in nature and so many contradiction and discrepancies are found between evidence of all PWs. The Court has to see whether the prosecution has proved the ingredient of offence or not, which prosecution has been failed to establish due to material contradictions and discrepancies in the evidence of witnesses, the evidence furnished by the prosecution witnesses is not trustworthy, reliable and does not inspire so confidence and benefit whereof must go in favor of accused, it is settled principle of law that while extending benefit of doubt, multiple circumstances are not required and only a single infirmity appealing the prudent mind is sufficient to extend such benefit of doubt to accused persons not a matter of grace but as a matter of right. Sole evidence of prosecution case without any corroboration whatsoever cannot be made basis of conviction. All these infirmities raise certain doubts."

2. Learned counsel submits that the trial court was unable to appreciate the evidence in its proper perspective, hence, this appeal. Upon a specific query raised to what constituent of the judgment was considered to be erroneous, learned counsel remained unable to address the same.

3. Heard and perused. The impugned judgment appears to have carefully cataloged the evidence and upon analysis thereof concluded that no case for dishonest issuance of a cheque was made out. The learned trial Judge has recorded that there are serious contradictions and discrepancies in the evidence and based thereupon no conviction could be maintained.

4. The observations and findings of the learned trial court were asked to be read out by the learned counsel and then he was queried as to whether they were borne from the record / evidence; he replied in the affirmative. The counsel contended that a civil dispute was alleged inter se and that this acquittal would have a material bearing thereupon. This court, respectfully, cannot sustain such a plea as each case ought to be determined on its own merits.

5. It is settled law that an accused is innocent till proven guilty and exoneration by a court of competent jurisdiction confirms the same. Such a vested right may only merit interference if the court below has disregarded material evidence, misread evidence and / or received such evidence illegally. Interference in acquittal ought not to be warranted merely because on re-appraisal of the evidence a different conclusion could also be possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion and that too with a view only to avoid grave miscarriage of justice. The august Supreme Court has envisaged a pivotal test in such matters, being that the finding sought to be interfered with, after scrutiny, should be found as artificial, shocking and ridiculous. No such case has been made out before this Court in the present case.

6. This Court has given careful consideration to the contents of the impugned judgment and is of the view that that the appellant’s counsel has remained unable to identify any infirmity therein, meriting interference of this Court. In view of foregoing, this appeal is dismissed in limine.

JUDGE