2022 PLP 54 (YLRN)

ABDUL MAALIK GADDI, J.

Captioned appeal is directed against the judgment dated 12.04.2017, recorded by the Presiding Officer of the Court No.XXIVth Civil Judge and Judicial Magistrate, Karachi (South) in Criminal Case No.250 of 2015, emanating from Crime No.460 of 2014, registered under section 489-F, P.P.C. at Police Station Clifton, Karachi, whereby the learned Presiding Officer of the said Court after full dressed trial acquitted the respondent No.1 under section 245(i), Cr.P.C. from the said charge by giving him benefit of doubt.

2. Facts necessary for the disposal of instant acquittal appeal as alleged in FIR are that one Haji Sirajuddin was inducted in sale/purchase business of plots with Mashooq Ali Rajpar and in such respect Haji Sirajuddin invested Rs.150,00,000/- (one crore fifty lac only) and after sometime when Haji Sirajuddin inquired from Mashooq Ali Rajpar about the plots, he could not furnish satisfactory reply, however, Haji Sirajuddin demanded return back his amount, but the dispute was referred before complainant Raja Abdul Hameed son of Raja Muhammad Azeem Khan and it was decided that only Rs.100,00,000/- (one crore only) will be adjusted in business and Mashooq Ali Rajpar will return Rs.50,00,000/- (fifty lac only) and the complainant Raja Abdul Hameed will be "Ameen" and Mashooq Ali Rajpar issued cheque No.E5339778 dated 11.06.2014 drawn on MCB Bank for amount of Rs.50,00,000/- (fifty lac only). The said cheque was deposited on 12.06.2014 by complainant in his account at Bank Al Habib Allama Iqbal Road Branch, Karachi, but the same was dishonored on account of "insufficient funds". It is also the case of complainant that the said cheque was again presented in bank twice but the same was bounced on account of "payment stopped by the drawer". Thereafter, the complainant approached the accused Mashooq Ali Rajpar, but he did not respond, however, the complainant lodged the FIR.

3. That charge was framed against the respondent No.1 at Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.2/A.

4. At trial, in order to prove the accusation against the respondent No.1, prosecution had examined the following witnesses:-- (i) PW-1/complainant Raja Abdul Hameed Khan was examined at Ex.3, who produced original cheque, three bank memos, application by complainant to S.H.O. for lodging of FIR, memo of site inspection and memo of seizure at Ex.3/A to Ex.3/F respectively; (ii) PW-2 Haji Sirajuddin (who had business transaction with the respondent No.1) was examined at Ex.4, who produced three cheque return memos along with deposited slips at Ex.4/A to Ex.4/C respectively; (iii) PW-3/I.O. ASI Safdar Abbas was examined at Ex.5, who produced four roznamcha departure and arrival entries, letter to bank MCB at Ex.5/A to Ex.5/E respectively; (iv) PW-4 Saqib Sharif, Branch Manager MCB was examined at Ex.6. These witnesses were cross-examined by the counsel for the respondent No.1 and thereafter, learned ADPP for the State closed the prosecution side vide statement at Ex.7.

5. Statements of respondent No.1 was recorded under section 342, Cr.P.C. at Ex.8, in which he denied the allegations as levelled by the prosecution and claimed to be innocence. However, he did not examine himself on oath, but examined one defence witness namely, Mirza Muhammad Ishtiaq Baig in his defence at Ex.9.

6. It reveals from the record that this criminal acquittal appeal was filed on 03.05.2017 and repeatedly notices were issued against the respondent No.

1. Vide diary dated 08.11.2018, it reveals that notice upon the respondent No.1 was served, but he did not appear and due to long pendency of this acquittal appeal, vide diary dated 04.11.2019, Counsel for the appellant was directed to come prepared on the next date for arguments on merits of this acquittal appeal, as such he has been heard.

7. Mr. M. Peer Rehman Mehsud, learned Counsel for the appellant argued that the judgment passed by the learned trial Court is perverse and the reasons are artificial, vis-a-vis the evidence on record; that on 12.04.2017, the date of judgment, appellant's Counsel in presence of respondent No.1 (accused before trial Court), clearly intimated the respondent No.2 (learned trial Court) that the parties have entered into compromise, therefore, judgment may not be announced and the case be disposed of as compounded on the terms and conditions which they could file in the late hours and the learned trial Court was pleased to put the matter to late hours due to business of the learned defence counsel before this Court. However, learned trial Court in an unprecedented manner in utter violation of judicial norms, impartiality announced the impugned judgment in absence of the appellant's counsel, hence, there was no room left to pass the impugned judgment of acquittal as such the same is liable to be set-aside/recalled; that the grounds on which the trial Court proceeded to acquit the respondent No.1 are not supportable from evidence on record; that prosecution has successfully proved its case beyond any reasonable doubt as the prosecution witnesses have fully supported its case; that respondent No.1 should be awarded exemplary punishment as he does not deserve any concession; that the said respondent has been directly charged and that discrepancies in the statements of witnesses are not so material on the basis of which respondents could be acquitted. Therefore, under these circumstances, he was of the view that this appeal may be allowed by setting aside the impugned judgment.

8. Mr. Ali Haider Saleem, learned Deputy Prosecutor General, Sindh, while supporting the impugned judgment, argued that the impugned judgment passed by the trial Court is perfect in law and on facts and the same is correct and proper. According to him, there is no misreading and non-reading of the evidence in the impugned judgment as the same has been passed by the trial Court after due consideration of all the documents and evidence available on record.

9. I have heard the learned Counsel for parties at a considerable length and with their able assistance, perused the documents available on record as well as the impugned judgment.

10. It appears from the record that the incident took place on 12.06.2014, whereas, the FIR was lodged on 06.12.2014 after the inordinate delay of about six (6) months. First Information Report has been lodged by the complainant Raja Abdul Hameed. During the course of arguments, I have specifically asked the question from the learned Counsel for the appellant to explain the delay in lodging of FIR, but he has no plausible answer with him; however, he submits that after dishonored/bounced of the cheque, the appellant approached to the respondent No.1 to return his amount, however, he kept the appellant on false hopes, but in this regard, no documentary evidence is available on record to prove this fact. Merely asserting that the appellant has approached to the respondents for returning of his cheque amount, is not enough. Therefore, on this ground, false implication of the respondent No.1 in this case could not be ruled out. It also appears from the record that the respondent No.1 has also filed a Civil Suit No.42 of 2015 for cancellation of disputed cheque, which was also dismissed by the trial Court. It is stated by the learned Counsel for the appellant that Civil Suit/Summary Suit No.66 of 2016 for recovery of amount along with profit was filed by the appellant against the respondents in Civil Court and the same was decreed. However, in this regard, appeal is pending before the District and Sessions Judge, Karachi (South). In view of such pending litigation in different Courts, it appears that parties are in litigation since long with regard to the disputed amount, which appears to be civil in nature.

11. A perusal of section 489-F, P.P.C., reveals that the provision will be attracted if the following conditions are fulfilled and proved by the prosecution. (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. In the case in hand, complainant has lodged the FIR on the basis of alleged cheque, but he has not brought forwarded any proof, which would substantiate that the said cheque was issued for fulfillment of any obligations or repayment of loan. It is by now a well established principle of law that mere issuance of the cheque, which was subsequently dishonored does not constituted an offence, unless it is established that the same was issued with dishonest intention for repayment of loan or for discharging of an obligations, which are missing in this case.

12. I have also gone through the evidence on record along with the impugned judgment with the able assistance of the learned counsel for the parties and found number of contradictions in between the statements of prosecution witnesses, which are material and fatal to the prosecution case and these contradictions, infirmities and missing of ingredients for applying of section 489-F, P.P.C. have already been highlighted by the learned trial Court in its judgment of acquittal. For the sake of convenience, it would be appropriate to reproduce the operative part of the impugned judgment, which reads as under:-- "As per contents of FIR, it is the case of prosecution that the actual transaction of business in respect of sale/ purchase the plots was with one Haji Sirajuddin and not with the complainant, however, the complainant being "AMEEN" between Haji Sirajuddin and accused Mashooq Ali Rajpar was allegedly entrusted with subject cheque and after dishonoring the same, FIR was lodged by him. In the present case, the version of prosecution is that initially Haji Sirajuddin invested an amount of Rs.1,50,00,000/ - (One Crore and Fifty Lac) with accused Mashooq Ali Rajpar for sale/ purchase the plots, but after sometime, when Haji Sirajuddin inquired from accused about plots, he could not furnish satisfactory reply and thereafter, dispute was referred to the complainant, where it was mutually decided that only one crore will be invested which was adjusted and for rest amount accused issued one cheque of Rs.50,00,000/ - (Fifty Lac) in the name of complainant being "AMEEN" as such the said cheque was subsequently dishonored, now there are two things which are to be determined in the case in hand, firstly the prosecution has to establish business transaction under which the alleged amount of Rs.1,50,00,000/ - (One Crore Fifty Lac) was paid to accused Mashooq by Haji Sirajuddin and secondly the prosecution has to establish dishonestly issuance of cheque under fulfillment of obligation in respect of alleged business transaction. Taking into consideration, first condition above, the prosecution PW-2 Haji Sirajuddin at Ex.4, who during the course of cross-examination has deposed "It is correct to suggest that I have not submitted any documentary proof regarding my investment 15 Million to the accused. It is correct to suggest that I have not provided proof of any cheque or any cash amount about investment. It is correct to suggest that no terms and condition of my business with the accused was in my knowledge I had given the amount on the basis of trust. It is correct to suggest that I have not given the details of adjustment of Rs.1,00,00,000/- between me and accused". From the perusal of deposition of PW-2 Haji Sirajuddin, it is crystal clear that he has no proof regarding payment of 15 Million to accused Mashooq Ali Rajpar and even he is not in the knowledge about terms and condition of the business and also he has not furnished the details of adjustment regarding amount Rs.1,00,00,000/ - (One Crore) and thereafter the accused allegedly issued cheque for Rs.50,00,000/ - (Fifty Lac) returning the amount, therefore, it can safely be said that the term "obligation" which envisaged in the section 489-F, P.P.C. is not established through trustworthy, reliable and unimpeachable evidence, hence, in the absence of proof regarding transaction, merely issuance of cheque does not amount an offence within the parameters of provision 489-F, P.P.C. For the convenient the relevant portion 489-F, P.P.C. is reproduced as under: 489F. Dishonestly issuing a cheque.-Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment of an obligation which dishonored 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. Keeping in view, the true spirit of above provision of law, if demonstrates that the two ingredients "Dishonestly issuance of cheque" and "towards re-payment of loan or fulfillment of an obligation" are co-extensive and if anyone is missing, the provision will loose its applicability and certainly the conviction cannot be awarded in such situation, merely on availability of single ingredient until and unless both ingredients are fully established through reliable, trustworthy and unimpeachable evidence. It is worth to add here that in the case in hand prosecution has miserably failed to establish obligation/ liability under which the accused allegedly issued the subject cheque, therefore, I am not agreed at all with the submissions of learned ADPP and cannot award the conviction to accused on the basis of available evidence. It is worth to add here that the case laws cited by prosecution side, the same are adversely supporting to the defence and the available record is totally different to the ratio of such judgments." When all these contradictions, infirmities and lapses were confronted to learned counsel for appellant for reply, he has no satisfactory answer with him.

13. From the perusal of evidence recorded by trial Court and impugned judgment, it appears that the judgment of the trial Court is based upon sound reasons. Respondent No.1 /accused was acquitted by trial Court mainly on the ground that the evidence of the prosecution witnesses on material particulars of the case is contradictory and untrustworthy. During the course of arguments, I have specifically asked the question from learned Deputy Prosecutor General, Sindh to point out/ show any piece of evidence, which is not supportable from evidence on record, again no satisfactory answer was available with him. Perusal of record shows that the trial court has rightly acquitted the respondent No. 1 through impugned judgment, which is neither perverse nor arbitrary. So far the appeal against acquittal is concerned after acquittal respondent No.1 /accused has acquired double presumption of innocence, this Court would interfere only if the judgment/order was arbitrarily, capricious or against the record, but in this case, there are number of infirmities and the impugned judgment of acquittal in my considered view did not suffer from any misreading and non-reading of the evidence. As regard to the consideration warranting the interference in appeal against acquittal and an appeal against conviction principle has been laid down by the Hon'ble Supreme Court in various judgments. In case of State/Government of Sindh through Advocate General Sindh, Karachi versus Sobharo reported in 1993 SCMR 585, Hon'ble Supreme Court of Pakistan has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-- "

14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed."

14. For what has been discussed above, I am of the considered view that impugned judgment is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Hon'ble Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, this Criminal Acquittal Appeal No.202 of 2017 is without merits and the same is dismissed along with listed application, if any. MH/A-39/Sindh Appeal dismissed.