THE HIGH COURT OF SINDH AT KARACHI

Criminal Acquittal Appeal No.442 of 2021

Present: Mr. Justice Shamsuddin Abbasi

Appellant : Muhammad Hanif son of Muhammad Habib, through Mr. Muteeullah Gondal, advocate

Respondent : State through Mr. Zahoor Shah, Addl: P.G.

Date of Hearing : 22.05.2025

JUDGMENT

Shamsuddin Abbasi, J.- Respondent/accused Arsalan Nabi Qurreshi son of Nabi Akhtar Qureshi was tried by learned Model Trail Magistrate-II/XXII Judicial Magistrate Karachi East in Criminal Case No.689 of 2020, arising out of FIR No.10/2020, registered at P.S. Aziz Bhatti, Karachi for offence under Section 489-F, PPC. After regular trial, respondent was acquitted of the charge vide judgment dated 01.04.2021. Appellant/complainant Muhammad Hanif, being dissatisfied with the impugned judgment has filed this criminal acquittal appeal. Notice was issued to the respondents and Prosecutor General Sindh.

2. The facts of the case as enumerated in the impugned judgment are that as per FIR lodged by complainant, he had business terms with accused Arsalan Nabi since last seven years and he gave knitting yarn to Arsalan Nabi of sum of Rs.102,32,300/- and on demand accused dishonestly issued five cheques and on presentation same were dishonored by concerned bank, thereafter, accused requested for not taking legal action against him and sought time to pay amount, then in the year 2013 accused paid Rs.40,00,000/- to complainant and again sought time on the pretext that he will sell out his factory and will return entire amount, the accused sold out his factory and paid Rs.23,00,000/- and for remaining amount dishonestly issued cheque No.16743583 of Rs.26,62,000/- dated 31.07.2012 of Standard Chartered Bank Gulshan-e-Iqbal, Branch Block-13/A, Karachi and on presentation the ame was dishonoured by the concerned bank on 19.12.2012. Hence the subject FIR.

3. After usual investigation challan was submitted against the accused person, charge was framed against him, to which he pleaded not guilty and claimed trial. At trial, prosecution examined four witnesses. Thereafter, prosecution side was closed.

4. Trial Court recorded statement of respondent/accused under Section 342 Cr.PC. Respondent/accused claimed his false implication in the case and denied the prosecution allegation. However, he neither examined themselves on oath under section 340(2) Cr.PC to disprove the prosecution allegations nor led any evidence in defence.

5. Trial Court after hearing learned counsel for the parties and assessment of evidence vide judgment dated 01.04.2021 acquitted the respondent/accused of the charge, hence this acquittal appeal is filed.

6. Learned counsel for appellant/complainant mainly argued that the impugned judgment suffers from misreading and non-reading of evidence produced before learned trial Court; that there was huge evidence against the respondent even then trial Court recorded acquittal of respondent/accused. He further argued that trial Court has failed to appreciate the evidence according to settled principles of law. He prayed for allowing this acquittal appeal.

7. I have carefully examined entire prosecution evidence available on record with the assistance of learned counsel for appellant as well as learned Additional Prosecutor General Sindh. It appears that trial Court acquitted the respondent/accused vide judgment dated 01.04.2021, mainly for the following reasons:

“The offence alleged against the accused falls under section 489-F, PPC. Before proceeding further, it would be advantageous to examine the ingredients of said section, contents whereof are reproduced hereunder:

"489-F Dishonestly issuing a cheque: However 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."

From the bare reading of above provision of law it appears that for attracting the said provision of law certain preconditions are required to be fulfilled i.e. (i) issuance of cheque; (ii) that such issuance of cheque was with dishonest intention; (iii) that the purpose of issuance of the cheque should be with the aim to repay a loan or to fulfill an obligation and (iv) that on presentation, the cheque is dishonoured.

Now examining the instant case in the light of above, it seems that there is no dispute so far as first and fourth preconditions are concerned, as the same have been admitted even by the accused himself and he does not dispute the issuance of cheque in question, so also the fact that the same was dishonoured on its presentation before the concerned bank.

In his statement recorded under section 342, Cr.PC while answering question No.1, he replied, he paid entire amount to the complainant so also the amount of cheque in the year 2015 through pay order. The cheque in question pertains to the year 2012 which was in possession of complainant and he asked to the complainant for return of cheque but the complainant told him for misplacement of cheque, and the accused on good faith has relied upon the complainant. Further, the complainant in his examination-in-chief stated that, in year 2012 he supplied goods to the accused of Rs.102,32,300/- who/accused issued five cheques in lieu of outstanding amount and he was directed by the accused for not presenting the cheque before due date. The accused gave him cash amount of Rs.30,00,000/- (in installments) on which he returned cheque of Rs.25,00,000/-. In year 2016 the accused paid cash of Rs.10,00,000/- to him and in May, 2014 accused gave him a pay order of Rs.20,00,000/-which he did not accept and after one year the accused again gave him pay order of Rs.23,00,000/- and took all the cheques back except the disputed cheque. He further stated that, in year 2012 he presented the cheque before the bank which was dishonored due to insufficient funds and in year 2019, he moved application at P.S. Aziz Bhatti, Karachi so also application U/S 22-A Cr.PC for lodgment of FIR against the accused.

From the chief-examination of the complainant reveals that both the parties had business relation with each other and accused used to pay amount to him, which is admitted by the complainant himself, the evidence further transpires that though the complainant was told by the accused for not presenting the cheque in bank before due date but the complainant not only presented the cheque but got dishonored so also kept the said cheque in possession in order to use against the accused as and when he wants, which clearly manifest that the complainant used the cheque as tool for recovery against the accused in order to book him in FIR. It is also clear that the accused paid amount to the complainant after dishonor of cheque and before lodgment of FIR, that fact has not been denied by the complainant in his evidence, this is showing that accused had no dishonest intention to defraud the complainant.

Not only this, complainant was cross-examined by the counsel for accused in which he has admitted for not production of sale invoices and cash memo before this Court or even to the Investigation Officer during investigation. He also admitted that after taking of cheque from the accused he has not continued the business with accused, the complainant has also specifically mentioned about an agreement on which he returned back the cheques to the accused but surprisingly he failed to produce such agreement before this Court so also during investigation to I.O. just to prove his case. He also admitted that he has not produced any witness which could show that he paid amount to the traders on behalf of accused on credit basis, even complainant in his voluntarily statement that he borrowed amount from his relatives despite of that none from his relatives has ever been produced before the Investigation Officer nor appeared before this Court for giving evidence in favour of complainant. The complainant alleges that the accused issued cheque in year 2012 and the same got dishonored in year 2012 but he failed to explain the reason of delay in lodgment of FIR in his any statement. There is no denial that in such like cases delay in lodging of FIR is not material, however heavy duty is cast upon the prosecution to explain the same, which is missing in this case. As per admission of complainant, he used to receive amount from the accused in different time period after the dishonor of cheque, the accused has also produced pay slips dated 06.04.2015, amount of Rs.23,00,000/- in favour of complainant, which is also admitted by the complainant. Apparently, the complainant held back himself from the lodgment of FIR at his own will just to pressurize the accused and he has used the document/ cheque as tool with malafide involve to engage the accused into criminal litigation after eight years of incident. It is also surprisingly to note that, the complainant has admitted to receive part payment of his amount through pay order and cash from the accused and the matter is left between both the parties is of settlement of accounts. This also shows that the accused had no clear obligation standing against him at the time of reporting of the incident as such the complainant has clearly admitted the receiving of amount from the accused and such admission has absolved the responsibility from the shoulder of accused.

Moreover, the Prosecution stepped witness namely Muhammad Arif at Exh. 4, who stated that he came to know through complainant about the transaction between him and accused but he did not know personally about such fact. He further stated that the accused did not issue the disputed cheque in his presence, on the face of statement of PW, it appears that he neither the witness of all transactions nor the cheque was issued in his presence, he only heard and narrated the same before the Court which comes into hearsay evidence. Mere words not supported by any tangible evidence cannot be accepted besides this hearsay evidence has no tangible value in eyes of law except the exceptions. The Investigation Officer investigated the case u/s 489-F PPC, he also admitted in cross-examination that the complainant has not produced any documentary evidence which could show that he supplied the goods to the accused, he also admitted that the complainant did not disclose about the delay in the lodgment of FIR, such statement of the IO also transpires that he only collected the record in respect of dishonor of cheque but has not investigated the matter on each corner or obligation for which the subject cheque was issued, though the duty of the investigating officer is not merely to bolster up a prosecution case with such evidence as may enable the Courts to record convictions but to bring out the real unvarnished truth but in this case the Investigation Officer has failed to bring the real unvarnished truth on record for which the disputed cheque was issued to the complainant. This clearly shows lacuna in the face of prosecution case, thus the ingredients of section 489-F PPC are not attracting in this case.

Keeping in view of above discussion, I have been arrived on my considered view that prosecution has miserably failed to prove the charge against the accused persons beyond any reasonable doubt. It is, therefore, accused namely Arslan Nabi Qureshi S/o Nabi Akhtar Qureshi hereby acquitted U/S 245(i) Cr.PC, 1898, The accused is present on bail, his bail bands stand cancelled and surety discharged.”

8. Record reflects that trial Court appreciated the entire evidence carefully and finally reached to the conclusion that the prosecution had utterly failed to establish the guilt of respondent/accused beyond reasonable doubt. It is a well settled proposition of law that in an appeal against acquittal, the Court would not ordinarily interfere and would instead give due weight and consideration to the findings of the Court acquitting the accused which carries a double presumption of innocence, i.e. the initial presumption that an accused is innocent until found guilty, which is then fortified by a second presumption that once the Court below confirms the assumption of innocence, which cannot be displaced lightly. In the case of The State and others v. Abdul Khaliq and others (PLD 2011 SC 554) the Apex Court, while considering numerous pronouncements held that 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, or suffering from the errors of grave misreading or non-reading of evidence. Such judgments should not be lightly interfered with and a 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 facts committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; that the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of Apex 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. 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, and the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities.

9. The appellant is unable to point out any error, perversity, or legal or jurisdictional defect in the impugned judgment calling for interference by this Court. The impugned judgment passed by learned trial Court is neither perverse nor speculative, but it is based upon sound reasons, which requires no interference by this court.

10. For above stated reasons, there is no merit in the appeal against acquittal. Finding of the innocence recorded against the respondent/accused by the trial Court are based upon sound reasons which require no interference at all. As such, instant Acquittal Appeal is without merit and the same is dismissed.

11. Above are the reasons of my short order dated 22.05.2025, whereby instant appeal was dismissed.

J U D G E

Gulsher/PS