2022 PLP 199 (YLRN)

ABDUL MAALIK GADDI, J.

This criminal acquittal appeal is directed against the Judgment dated 17.09.2016 passed by the learned IXth Assistant Sessions Judge Karachi Central, in Crl. Case No. 317/2013, under Crime No. 149 / 2012, registered under sections 420/506-B/34, P.P.C., of Police Station Jauharabad, Karachi, whereby he has acquitted/ Respondents Nos. 1 and 2 under section 245(1), Cr.P.C. by giving them benefit of doubt. The Appellant having aggrieved and dissatisfied with the impugned Judgment has filed instant appeal.

2. Succinctly, the allegation against accused/Respondents as per the prosecution verbatim, was that on 22.09.2005 both the accused persons collusively sold out Flat No.404, Talha Arcade, B-7, F.B. Area, Karachi to Complainant through sale deed while such Flat was already given in dower to Mst. Rehana Kausar by accused Abdul Hameed at the time of his marriage, thereby the accused persons committed offence under sections 420/34, P.P.C. The accused were further charged under section 506-B, P.P.C. for issuance of threat of murder to complainant on 13.06.2012. After usual investigation the police submitted report under section 173, Cr.P.C. and challaned the accused persons under aforementioned sections.

3. It appears from the record in compliance section 241-A, Cr.P.C., requisite case papers were delivered to the accused/Respondents at Ex.1. Formal Charge was framed against the accused/ Respondents at Ex.2, to which they denied the charge and claimed to be tried vide their pleas on record at Exs.2/A and 2/B respectively. During trial, prosecution examined following witnesses:- i). PW-1 Abdul Aziz (Complainant) at Ex.3. He produced copy of FIR, copy of conveyance deed, copy of affidavit/ undertaking (original were seen and returned by the trial Court and copies were placed on record for perusal). ii). PW-2 Abdul Khalid at Ex.4. iii). PW-3 Qaiser Butt at Ex.5. iv). PW-4 M. Aamir Sabir (Micro filming officer) at Ex.8. He produced attested copy of the documents pertaining to sale/conveyance deed regarding property. v). ASIP Faraz Shah Nawaz (I.O. of the case) at Ex.9.

4. After examining said material witnesses, prosecution has closed its side at Ex.10.

5. Statement of the accused/ Respondents were recorded under section 342, Cr. P.C. at Ex.11 and Ex.12, in which the accused/Respondents have claimed their innocence and denied the allegation of the prosecution being false. However, they have not examined themselves on oath nor produced any evidence in their defence.

6. After appraisal of evidence adduced at the trial the learned trial Court passed the impugned Judgment and having extended benefit of doubt acquitted the Respondents/accused.

7. Mr. Muhammad Akbar Khan, learned Counsel for the appellant has contended that the Judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-a-vis the evidence on record; That the grounds on which the trial Court proceeded to acquit the respondents are not supportable from documents and evidence on record. He further submitted that the respondents have been directly charged for committing cheating and forgery and that discrepancies in the statement of witnesses are not so material on the basis of which respondents could be acquitted. He further contended that the learned trial Court has based its findings of acquittal mainly on the basis of minor contradictions on non-vital points of the statements of the prosecution witnesses and that the prosecution evidence on record has not been properly appreciated. During the course of arguments he has taken to me towards various documents on record and was of the view that the Appellant was/is the bona fide purchaser of the subject flat but the Respondents have committed cheating and forgery with him, but the learned trial Court did not consider the documents on record and acquitted the accused persons without assigning any valid reason. Therefore, this appeal may be allowed and the Respondents may be awarded an exemplary punishment in accordance with law.

8. Mr. Nasir Rizwan Khan learned Counsel for the Respondents Nos.1 and 2 has supported the impugned judgment by arguing the accused/Respondents are absolutely innocent and have not committed any crime. He further submits that the learned trial Court while delivering the Judgment has already discussed all the points involved in this case in detailed which needs not to be interfere by this Court.

9. Mr. Abdullah Rajput learned Deputy Prosecutor General Sindh has also supported the impugned judgment and submits that the impugned judgment passed by the learned Presiding Officer of the trial Court is perfect in law and on facts and further submits that no cheating/fraud has been proved on the basis of evidence and documents on record against the Respondents. During the course of argument he has brought the attention of this Court towards the documents on record and submits that the Appellant was in knowledge that the subject flat was already given by Abdul Hameed (Respondent No.2) to his wife Mst. Rehana Kausar at the time of his marriage on 20.06.2003 as dower and this fact was confirmed through evidence of I.O. of the case namely ASIP Faraz Shah Nawaz on record at Ex.9 and so also in 161, Cr.P.C. statement of PWs. However, when a dispute was arose in between Abdul Hameed and Mst. Rehana Kausar, a family suit was filed by Mst. Rehana Kausar for recovery of dower through Family Suit No.905/2005 in which present Appellant was also party as Defendant. However, said suit was decreed by Judgment dated 28.02.2009 and the said Judgment was maintained upto the level of all higher forums. Resultantly the subject flat by the order of Family Court was handed over to Mst. Rehana Kausar, as such according to him no case of cheating/forgery against the Respondents/accused has been made out.

10. I have considered the submissions advanced at the bar and have perused the evidence and documents on record with the able assistance of the advocates for parties.

11. After hearing the learned Counsel for the parties and after going through the record, I have come to the conclusion that prosecution has failed to prove its case against accused/respondents for the reasons that the prosecution has charged the accused persons for the offence under sections 420/506-B/34, P.P.C. In respect of offence under section 420, P.P.C. the prosecution was required to prove the following ingredients:- i). That there should be fraudulent or dishonest inducement of a person by deceiving him; ii). That the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or ii-b). That the person so deceived should be intentionally be induced to do or omit if he were not deceived; and iii). In cases covered by II(b) the act of omission should be one which causes or is likely to be cause damage or harm to the person induced in body, body mind, reputation and property. Thus, the subject section deals with cases of cheating whereby the deceived person is dishonestly induced; i) To deliver any property to any person or; ii) To make alter or destroy; a) To whole or any part of the valuable security or; b) Anything which is signed or sealed and which is capable of being converted into a valuable security. In respect of offence under section 506-B, P.P.C. the prosecution was required to prove the following ingredients viz; i) That the accused threatened some persons with some injury; a) To his person, reputation or property, or b) To the person or reputation of any one in whom that person is interested; ii) That the accused did so with intend to cause harm to that person or to cause that person to do any act which he has not legally bound to do or omit to do any act which he was legally entitled to do so means of avoiding the execution of such threat. In case of subsection (2) in addition to above; That the intended threat was to cause death or grievous hurt or to cause destruction of the property by fire or to cause an offence punishable by death or imprisonment for life, etc. With regard to section 34 the prosecution was required to prove following ingredients viz. i) That a criminal act must be done by several person. ii) That the criminal act musty be done to further the common intention of all. iii) That there must be a pre-arranged plan and criminal act should have been done in pursuant thereof. iv) That there must be participation of all persons in furtherance of common intention. It would be pertinent to mention here that section 34, P.P.C. does not create a distinct offence but lays down principle of joint criminal liability. The reasons are manifold e.g. (i) In cases of joint action it is difficult if not impossible to gauge act of commission or omission of an individual distinctly so as to fix precise criminal liability; (ii) Presence of accomplices offered encouragement, protection and support to the person actually engaged in the commission of crime; (iii) Conspiracy is generally hatched in secret. It is extremely rare that direct evidence in its proof is forthcoming from wholly disinterest quarter. (iv) The proof in such cases is most inferential. Fundamental condition for attracting section 34, P.P.C. is that the accused should have common intention and should have participated in crime in furtherance of their common intention. Vicarious liability cannot be visited unless some strong circumstances showing common intention exists which is lacking in this case. Now reverting back to the cases at hand, the prosecution was required to put together the different pieces of puzzle in order to bring out a clear picture of the incident at the end of trial. In the subject case, the domino effect with regard to prosecution case was triggered when deposition of complainant was recorded. Afterwards the prosecution failed to manage its case and to stick its case against the present accused persons. Complainant Abdul Aziz i.e. PW-1 gave evidence which not only failed to attract the ingredients of sections 420/34, P.P.C. but also gave waivered evidence regarding commission of offence under section 506-(ii), P.P.C. as well. The complainant in his deposition also failed to disclose how and in what manner the offence was committed, but also gave waivered/centrifugal evidence with regard to sticking the case of prosecution against the accused and thus rocked the boat of prosecution case in the ocean of improbability. Whereas PW-2 Abdul Khalid, PW-3 Qaiser Butt, PW-4 M. Aamir Sabir and PW-5 ASIP Faraz Shah Nawaz (I.O. of the case) gave vacillating/waivered evidence with regard to sticking the case of prosecution to the accused owing to, not only bundle of contradictions but also non incriminating evidence in their respective depositions against the accused persons. Whereas evidence of I.O. remained confined to fulfilling of procedural formalities rather than objective investigation.

12. It appears from the record that the alleged incident took place on 13.06.2012, whereas the FIR was lodged on 16.06.2012 after the delayed of about three days for which no justification or plausible explanation has been furnished by the prosecution; Specially keeping in view the facts that both the parties were at loggerheads. It is noted that after registration of FIR I.O. of the case has investigated the matter and submitted report in "C" Class which was declined and concerned Court took the cognizance in the matter and after full dressed trial, the accused/Respondents have been acquitted as stated above.

13. It also appears from the record that Mst. Rehana Kausar and Abdul Hameed were married in accordance with the Hanafi Muslim Law and as dower it was agreed between the parties that Abdul Hameed would give a flat to Mst. Rehana Kausar and accordingly in column No.13 of the Nikahanama such entry was made viz., the flat in question. It also appears that spouses separated and Mst. Rehana Kausar filed a Family Suit bearing No.905/2005 in the Family Court for recovery of her dower amount/ flat which the Abdul Hameed had refused to hand over the same and present appellant was party in the said proceedings. It appears that the said suit was decreed by Judgment dated 28.02.2009 by ordering that the flat in question was handed over to Mst. Rehana Kausar, a Family Appeal was also filed by Abdul Hameed in which appellant was also party that appeal was dismissed. Thereafter, a Constitutional Petition was also filed by Abdul Hameed in which appellant was also party that Constitutional Petition was also dismissed. However this time, present appellant went to Hon'ble Supreme Court by filing Civil Petition for Leave to Appeal No.383-K/2011 for redressal of his grievances but said petition was also dismissed by the Hon'ble Supreme Court of Pakistan by Judgment dated 27.09.2011.

14. It is stated by the counsel for the Respondents that after dismissal of the claim of the Appellant by the Hon'ble Supreme Court, again Appellant filed Civil Suit No.269/2011 for Declaration, Permanent Injunction and Cancellation of Document, but said suit was also dismissed, Civil Appeal No.151/2012 filed by the Appellant was also dismissed, however, a IInd Appeal is pending bearing No.69/2015 before this Court. It appears from the record that parties are in litigations since long in respect of the subject property. During the course of argument Appellant has admitted that he is out of possession and possession is with Mst. Rehana Kausar by Court's order. Under these circumstances false implication of the Respondents/accused in this case could not be ruled out.

15. It is also noted that in this case the ingredients of application under section 420, P.P.C. in this case is missing as stated above. It appears from the record that Appellant was well aware with regard to subject property was the matter of dower in Nikahnama in between Abdul Hameed and Mst. Rehana Kausar and despite of this fact knowingly the Appellant purchased the subject property. Even otherwise it is the duty of buyer to be remained aware and vigilant before purchasing the property. Therefore, under these circumstances he could not blame to the others with regard to cheating with him which otherwise has not been proved. Having consider the documents and evidence on record, it also appears that dispute between the parties appears to be of civil nature, however the Appellant tried to convert the same into criminal litigation.

16. The learned counsel for the Appellant could not show the specific part of the Judgment wherein the learned trial Court has committed any gross illegality as the ocular and documentary evidence are not favouring to the Complainant/ Appellant.

17. Considering all the aspects of the case, I have come to the conclusion that the trial Court has rightly extended benefit of doubt in favour of private respondents and the impugned Judgment contains valid reasons for extending benefit of doubt to the said respondents, hence does not require any interference by this Court. I may further observe here that there is clear distinction in appeal against conviction and appeal against acquittal. It is settled law that accused who has/have been acquitted in crime can claim double presumption of innocence, one at the pre-trial stage and the other he/they may earn on the basis of judgment of acquittal in his/their favour from the Court of competent jurisdiction. The competent Court in the instant matter has extended benefit of doubt to the respondents after examining the entire evidence. Therefore, I see no reason to interfere with the impugned judgment. Consequently, this criminal acquittal appeal is dismissed along with listed application(s), if any. Before parting with the order I would like to make it clear that any observation in this order shall not effect the pending litigations in between the parties. SA/A-11/Sindh Appeal dismissed.