IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Criminal Revision Application No.S-27 of 2019
Applicant: Syed Raban Shah, through M/s. Sheeraz
Fazal and Irfan Mehdi, Advocates.
Complainant: Syed Bachal Shah through Mr Saeed Ahmed Bhatt,
Advocate
State: Through Syed Sardar
Ali Shah, Deputy Prosecutor General
Date of hearing: 07.02.2022.
Date of decision: 07.02.2022.
O
R D E R
Zulfiqar
Ali Sangi, J:
Through instant Cr. Revision
Application, the Applicant has assailed the impugned judgment dated 23.12.2017,
passed by learned Civil Judge & J.M-IV, Khairpur, in Criminal Case
No.47/2017 (re-State vs. Syed Rabban Shah), whereby the applicant was convicted
for an offence punishable under Section 489-F PPC and sentenced to suffer R.I for
two years with fine of Rs.30,000/-, in case of default in payment of fine, he
shall suffer SI for three months more, which was subsequently maintained by
learned Additional Sessions Judge-I, Khairpur, vide judgment dated: 25-02-2019,
in Criminal Appeal No.34/2017.
2. Succinct facts as alleged in FIR No.70/2017, registered by Complainant
at P.S. ‘A’ Section Khairpur, are that applicant had received an amount of
Rs.1500,000/- from Complainant in presence of witnesses on the premise that he
will get a job of ASI to his son namely Ghulam Murtaza;
however applicant failed to get the order for the job of ASI and on-demand for
return of amount, applicant issued a Cheque No.2994087 dated 12.02.2017 of his
own account No.1295-5 of National Bank City Branch Khairpur, which was on its
presentation dishonoured due to insufficient balance.
3. Learned
counsel for the applicant, at the very outset, submits that learned trial Court,
as well as Appellate Court, did not appreciate the facts as well as legal
points involved in the case; besides prosecution utterly failed to establish
its case against the present applicant; that case of prosecution suffers from
material contradictions and flaws; that the alleged incident occurred on
15.02.2017 while FIR was lodged on 07.03.2017 hence there is a delay of 17 days
in the lodgment of FIR, which has not been explained properly by the
prosecution; that there is a dispute between complainant and applicant over
matrimonial affairs owing to which a false and managed story has been made to
settle his grudge; that all PWs are related interested and they are highly
interested hence their evidence is not trustworthy or convincing. Lastly, he
contended that the applicant may be acquitted by extending him the benefit of
the doubt by allowing this Cr. Revision.
4. Learned Counsel representing the Complainant submitted that both
learned lower Courts have rightly passed the impugned judgments as the applicant
had received an amount of Rs.1500,000/- from the
Complainant on the promise that he would provide the job of ASI to his son in
the presence of witnesses; besides he issued a cheque instead of such payment,
which was dishonoured due to insufficient amount hence dishonesty proves.
Insofar as the delay in the lodgment of FIR is concerned, it has been explained
properly; hence both impugned judgments passed by learned lower Courts are
reliable and require no interference of this Court.
5. Learned DPG, while adopting the arguments advanced by learned
Counsel for the Complainant, has contended that learned lower Courts have
rightly passed the impugned judgments, which do not suffer from any illegality
or irregularity and are liable to be maintained as dishonesty is very much
proved from the act of applicant in the commission of an offence; hence this
revision application, being misconceived, is liable to be dismissed.
6. I have heard learned Counsel for the Applicant, learned
Counsel representing the Complainant as well as learned DPG and have gone
through the material available on record.
7. On reassessment of the entire evidence produced by
the prosecution it is established that the prosecution had failed to prove the case against the applicant beyond a reasonable
doubt by producing reliable, trustworthy and confidence-inspiring evidence.
8. The complainant and the witnesses have not disclosed
in their evidence as to when they had handed over the amount to the accused.
Complainant during his cross-examination stated that “I do not remember the date and month of paying amount to accused.”
PW Abdul Razzak Shah during his cross-examination also stated that “I do not remember the date, time and month
of paying amount by complainant to accused.” From the perusal of cross-examination as discussed
above the prosecution has failed to prove handing over of amount to the
applicant for which the cheque in question is claimed to be given by the
applicant.
9. The complainant also admitted during his
cross-examination that “It is correct to
suggest that cheque does not bear the clearance of the stamp of bank.” The
investigation officer also admitted this fact during cross-examination by
stating that “It is correct to suggest that cheque does not bear the return
date and bank seal/stamp.” The
complainant has not examined the bank Manger who may
certify that the memo was issued by the bank or that the cheque was presented
in the bank.
10. The case of the complainant was that the applicant received
the amount for arranging the job of ASI for his son and when he failed to
arrange the job he issued the cheque in question for repayment of said amount.
The paying of such amount by the complainant to the applicant was neither a
loan nor a legal obligation but the same was a bribe which complainant paid for
getting some illegal gain (Job of ASI). The complainant is a teacher and
educated person who however admitted during cross-examination that “I am P.S.T teacher in education department.
I have not produced the advertisement if any for the job of ASI, issued by
Government of Sindh before this court.” After this admission that the
complainant is a P.S.T teacher in the education department, it is very
difficult to accept that a peon is arranging the post of ASI in police deportment
for the son of one teacher. The complainant has not brought on record any evidence
in respect of any relation of the applicant with any politician or any high
official of the police department to believe this version of the complainant.
11. It was the defence of the applicant before the trial court
that he had not issued the cheque to the complainant but his cheque book was
misplaced and such NC report was kept at the concerned police station which he
too placed on record during his examination under section 342 Cr. P.C same is
also reflected from the impugned judgment of the trial court. However, the said
plea was not accepted by the trial court on the ground that the applicant and
his counsel took different pleas in defence. It is a settled principle of law
that the accused can take several pleas in his defence and is not bound to
prove the same but the prosecution must prove its case against him beyond a
reasonable doubt by producing reliable, trustworthy and confidence-inspiring
evidence. The trial court in the impugned judgment has observed as under:-
“Learned counsel for
accused in-spite of arguing the matter has given preference to written
arguments and submitted the same hence, I would like to discuss the written
arguments submitted by the counsel for accused, learned counsel raised the
different pleas while he has firstly stated in written arguments that there is
delay of 24 days in registration of FIR so far as this plea is concerned, I
have considered the facts of FIR, evidence of complainant and arguments of
prosecutor as well as arguments of counsel for complainant, it appears that
delay has properly been explained by complainant second plea was that the
evidence of complainant before this Honourable court is quite contradictory
with each other which effect the case of prosecution is highly doubtful so far
as this contention is concerned I have perused the contents of instant FIR and
the evidence of complainant which reveals that not only complainant but PW-Abdul
Razzak Shah have fully corroborated the version of FIR to the extent of taking
money by accused from complainant for job and a cheque of Rs.15,00,000/-, was
issued by him to the complainant in presence of witnesses, the third plea was
taken by him that accused is peon and how he can get the job for someone else
and it is also admitted fact prior to offering of complainant he did not
provide job to any other person hence it shows the doubt and benefit of doubt
must go to the accused so far as this plea is concerned learned counsel himself
admitted that accused has offered to complainant for job, besides, learned counsel
has taken this plea on basis of presumption and assumption, otherwise, this
point was not challenged by accused or his counsel during prosecution evidence,
the fourth plea was taken by him that dispute between the parties is going on
over the matrimonial affairs due to that revenge and annoyance complainant has
managed this story so far as this contention is concerned I have perused the
prosecution evidence but neither accused nor learned defense counsel challenged
this plea during course of prosecution evidence in respect of the matrimonial
affairs between complainant party and accused, even otherwise, no any oral as
well as documentary or any record in respect to the dispute of family affairs
has been brought on record, The fifth
plea was taken by him that except this FIR complainant party has registered
other FIRs bearing FIR No. 53/2017, under section 489-F, at P.S "B"
section Khairpur, FIR No.86/2017 under section 489-F at P.S "B"
section Khairpur and FIR No. 66/2017 under section 489-F PPC at P.S "B"
section Khairpur and the accused was acquitted by learned Civil Judge and
Judicial Magistrate-ll, Khairpur vide Judgments dated
12.09.2017, in this regard he has produced the Photostat copies of said
Judgments so far as this plea is concerned the Judgments of learned Civil Judge
and Judicial Magistrate-ll, Khairpur are not binding
on this court, moreover each and every case has own facts and circumstances. Sixth plea as taken by him that prior to
registration of FIR the cheque book of accused was stolen for which accused had
lodged N.C report at P.S "A" section Khairpur,
admittedly accused has produced such N.C report before this court in his
statement U/s 342 Cr.P.C. at Ex-09/A. So far as this contention is concerned I
have scanned the prosecution evidence learned defense counsel challenged that
cheque books of accused was stolen however accused stated in his statement U/s
342 Cr.P.C that his cheque was misplaced while the contents of N.C report
reveals that cheque book of NBP city branch Khairpur, cheque book of UBL Bank
and some unwritten cheques of APNA bank were misplaced in market at the time of
purchasing, admittedly divergent plea of accused and his counsel came on
record, albeit; I/O of P.S "A" section Khairpur has denied about
lodgment of N.C report by accused at PS "A" section Khairpur in his
cross examination, seventh plea was taken by learned defense counsel that PWs
are relatives of complainant and are highly interested, their evidence is not
reliable and trustworthy and in other FIRs the PWs and complainants are the
same persons and they have managed the false and fabricated stories and accused
has been implicated in the false cases, so far as this plea is concerned it is
pertinent to mention here that the case in hand is for issuance of false/bogus
cheque which particular and most probably dependents upon documentary evidence
besides mere relation of PWs with complainant did not discard their evidence,
Eighth plea was taken by defense counsel that there is no stamp and signature
of Bank Manager on the memo of cheque hence it shows the malafide intention so
far as this contention is concerned I have scanned the dishonour
memo and find that dishonour memo bears the signature
of Bank Manager while so far as concerned that memo does bear the seal/stamp of
bank admittedly memo is computerized printed pro-forma which does not require
the seal/stamp even memo shows its bank name which is sufficient. Learned
counsel lastly prayed for acquittal of accused while relying upon case laws
reported 2013 SCMR 51, 2013 P.Cr.L.J. 175, 2012 PLD 464 (Sindh).”
12. The admission of the complainant during his
cross-examination that his other relatives/
witnesses of the present case also lodged FIRs for an offence under section
489-F PPC, against the applicant reflects that there appears some strange
weight to the plea taken by the applicant that his cheques of different banks
were misplaced for which he also produced the copy of NC report during his
examination under section 342 Cr.P.C. The complainant during cross-examination
stated that “It is correct to suggest
that PW Afzal Shah lodged FIR U/S 489-F PPC against accused before lodgment of
my FIR. It is correct to suggest that mother of PW Yaseen Shah also lodged FIR
against accused before lodgment of my FIR.”
13. I have gone through section 489-F of the Pakistan Penal
Code, 1860, which reads as under:-
489F. Dishonestly issuing a cheque.__ Whoever
dishonestly issues a cheque towards repayment of a loan or fulfilment of an
obligation which is dishonoured on presentation, shall be punishable 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.
14. On
perusal of the record it reveals that the complainant paid the amount to the accused
for some illegal gain (getting job of ASI for his son) which in my view is not
legal obligation therefore, on perusal of Section 489-F, P.P.C. which reveals
that the said provision will be attracted if the following conditions are
fulfilled.
i). Issuance
of cheque;
ii). Such issuance was with dishonest intention;
iii). The purpose of issuance of cheque should be;
a). to re-pay a loan; or
b). to fulfill an obligation
(which in a wide term inter alia applicable to lawful agreements, contracts,
services, promises by which one is bound or an act which binds a person to some
performance;
iv). On presentation, the cheque is dishonored.
15. In
the case in hand, the Complainant has lodged the FIR based on the alleged
cheque but he has not brought forward any documentary proof which would
substantiate that the said cheque was issued for the fulfilment of any (Lawful) obligations or re-payment of loan.
It is by now a well-settled principle of law that mere issuance of cheque which
was subsequently dishonoured does not constitute an offence unless it is
established that the same was issued with the dishonest intention for re-payment of loan or for discharging of
any (Lawful) obligation which is also
missing in this case.
16. It
is well settled by now that the prosecution is bound to prove its case against
the accused beyond any shadow of reasonable doubt, but no such duty is cast
upon the accused to prove his innocence. It has also been held by the Superior
Courts that conviction must be based and founded on unimpeachable evidence and
certainty of guilt, and any doubt arising in the prosecution case must be
resolved in favour of the accused. In the case of Wazir
Mohammad v. The State (1992 SCMR 1134), it was
held by Honourable Supreme Court that "In
the criminal trial whereas it is the duty of the prosecution to prove its case
against the accused to the hilt, but no such duty is cast upon the accused, he
has only to create doubt in the case of the prosecution." Honourable Supreme Court in another case of Shamoon
alias Shamma v. The State (1995 SCMR 1377),
held that "The prosecution must
prove its case against the accused beyond reasonable doubts irrespective of any
plea raised by the accused in his defence. Failure of prosecution to prove the
case against the accused entitles the accused to an acquittal. The prosecution
cannot fall back on the plea of an accused to prove its case.......Before, the
case is established against the accused by prosecution, the question of burden
of proof on the accused to establish his plea in defence does not arise."
17. It is a settled principle of law that for extending
the benefit of the doubt, there doesn't need to be multiple circumstances
creating doubt. If a single circumstance, which creates reasonable doubt in a
prudent mind about the guilt of accused, then he will be entitled to such benefit
not as a matter of grace and concession, but as a matter of right, as has been
held in the case of Tariq Pervez v. The State (1995 SCMR 1345), wherein the Hon'ble Supreme Court has held as under:-
"The concept of benefit of doubt
to an accused persons is deep-rooted in our country
for giving him benefit of doubt, it is not necessary that there should be many
circumstances creating doubt. 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".
18. Thus based upon the above facts and the circumstances
of the case the above Criminal Revision Application is allowed and the impugned
judgment dated: 23.12.2017, passed by learned Civil Judge and Judicial
Magistrate-IV Khairpur in Crl. Case No. 47 of 2017
r-e (State v/s Syed Rabban Shah) arising out of FIR crime No. 70 of 2017
registered at police station “A” section Khairpur U/S 489-F PPC, and the
Judgment dated: 25-02-2019 passed by the Court of Additional Session Judge-I
Khairpur in Cr. Appeal No. 34 of 2017
are hereby set aside. The applicant is acquitted from the charges.
19. These are reasons for my short order dated: 07-02-2022,
which reads as under:-
For the reasons to be recorded, later on, instant
Cr. Revision Application is allowed. Resultantly, applicant is hereby acquitted
from the charge of the case. He is present on bail. His bail bonds stand
cancelled. Surety discharged.
JUDGE