IN THE HIGH COURT OF SINDH, CIRCUIT COURT
LARKANA
Crl. Revision Appln. No. S- 02 of 2020.
Abdul Qadir Giancho. .. . ...Applicant.
Versus
The State. . . ... .. .Respondent.
Mr. Ali Nawaz Depar, Advocate for the applicant.
Mr. Muhammad Afzal Jagirani, Advocate for complainant.
Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 30.05.2023.
Date of Judgment: 30.05.2023.
Judgment
Zulfiqar Ali Sangi, J-. This criminal revision has been directed against the judgment dated 18.11.2019 passed by learned Judicial Magistrate-II/ MTMC Mehar, and the judgment dated 16.12.2019 passed by the learned 1st Additional Sessions Judge, Mehar.
2. The applicant was tried by the learned Judicial Magistrate-II/ MTMC Mehar in the criminal case No.94/2019, emanating from F.I.R No.143/2019 registered at P.S Mehar for offence under Section 489-F, 506 (2) and 504 P.P.C., and on conclusion of trial the applicant was convicted for offence punishable under Section 489-F P.P.C and sentenced to suffer R.I for two years with fine of Rs.30,000/- and in default whereof to suffer S.I for two months. The applicant was also convicted for offence punishable under Section 504 P.P.C and sentences to suffer S.I for one month with fine of Rs.15000/- and in case of default to pay fine to suffer S.I for two days. The aforesaid sentences were ordered to run concurrently.
3. The applicant preferred appeal No.45/2019 before learned Sessions Judge Dadu, which was made over to learned 1st Additional Sessions Judge, Mehar, who dismissed the appeal while maintaining the conviction and sentence recorded by the learned trial Court. Being aggrieved, the applicant has preferred present criminal revision application before this Court.
4. The facts of the prosecution case as depicted from para 2 of the impugned judgment dated 18.11.2019 read as under:
Complainant, namely, Rafique Ahmed son of Khamiso Khan Janveri lodged above mentioned F.I.R and alleged therein that the complainant made agreement of one building (house) and shops with accused Abdul Qadir Gaincho agaisnt total price of Rs.51 lacs, out of which the complainant paid Rs.27 lacs and one Mehran VXR Zero meter with original documents agaisnt price of Rs.8 lacs. The complainant paid total amount Rs.35 lacs to accused and the outstanding amount shall be payable on 20.4.2018. But accused refused to receive the outstanding amount. Thereafter, the mother of accused brought Holy Quran before complainant and asked that she is not ready to sale the building (house) and requested to complainant for taking his paid amount. The complainant paid due respect to Holy Quran and became ready to take his paid amount from accused, out of which accused paid Rs.2,80,000/- in cash to complainant; issued two cheques i.e. one cheque of worth Rs.1400,000/- and second cheque of worth Rs.200,000/- of HBL on 01.09.2018 in presence of Abdul Rauf and Ghulam Qadir at the shop of Tufail Mahessar at 0900 hours. Thereafter, the complainant deposited cheque bearing No.5646697 dated 01.09.2018 in account No. PK 59 HABB 00050900417801 before HBL bank but said cheque was bounced. The another case for cheque of wroth Rs.1400,000/- was also got registered agaisnt accused. Thereafter, the complainant went to accused at Rampur Muhalla and informed him about dishonoring of cheque, on such, accused abused the complainant and pointed out pistol from fold and issued threats of death. The foregoing witnesses rescued the accused and rescued the complainant.
5. A formal charge was framed and the accused pleaded not guilty and claimed trial. During trial the prosecution examined total five witnesses viz. complainant Rafique Ahmed, PW Ghulam Qadir, Mashir Amir Ali, I.O ASI Altaf Hussain and Bank Manager Amjad Ali. Thereafter the prosecution side was closed vide statement by ADPP at Ex.08. Then, the statement of accused was recorded under Section 342 Cr.P.C, in which accused had denied all the allegations leveled against him and pleaded innocence and did not opt to examine himself on oath, nor examined any witness in his defence.
6. I have heard the learned counsel for applicant, as well as learned D.P.G appearing for the State and learned Advocate for complainant and have also gone through the material available on record.
7. Learned counsel for applicant argued that both the learned Courts below have erred in law and the facts; that the judgments passed by the trial Court as well as learned Appellate Court are perverse and liable to be set-aside; that the learned Courts below have failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the learned Courts below, as it consist of only interested witnesses and insufficient to warrant conviction of the appellant. Learned counsel further contended that there are important and vital contradictions in the evidence of the prosecution witnesses, which he highlighted. Lastly, he has prayed for setting-aside the impugned judgment and acquittal of the appellant.
8. Learned D.P.G, assisted by learned Advocate for complainant opposed grant of revision application, on the grounds that the prosecution has fully established its case by producing trustworthy ocular as well as circumstantial evidence.
9. From perusal of the record, it appears that complainant in his examination-in-chief has not disclosed that when the agreement of sale was executed or when he paid amount of Rs.16 lacs to the accused. It has also not been disclosed by the complainant in his deposition that as to why the amount, which he paid had been enhanced, as according to complainant he paid Rs.16 lacs to the accused and he was ready to cancel such agreement of sale, but it was subject to return of his amount. However, complainant in his examination-in-chief stated that one cheque was of Rs.14 lacs, and accused gave him cash of Rs.2,80,000/- and also issued one cheque worth Rs.2 lacs. On calculation the aforesaid amount exceeds from the actual amount of Rs.16 lacs. This single circumstance has created serious doubt in the prosecution case. In absence of evidence in respect of the payment of amount of Rs.16 lacs to accused by the complainant, no case under Section 489-F P.P.C is made out.
10. The nutshell of the above discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by Honble Apex Court in the case of Tariq Pervez v. The State (1995 SCMR 1345) that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts, if there is single circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as matter of grace and concession but as a matter of right.
11. For the foregoing reasons and keeping in view the dictum laid down in case of Tariq Pervez v. The State (supra), the conviction recorded by the learned trial Court maintained by learned Appellate Court against the applicant is not sustainable. Consequently, the instant criminal revision stands allowed; the impugned judgments of learned trial Court and Appellate Court are set-aside and the applicant is acquitted of the charge. He is present on bail; his bail bond stands cancelled and surety discharged. The office is directed to return surety papers to concerned, as per practice.
Judge
Ansari