2018 P Cr (PLP)

ABDULLAH BALOCH, J.

This common judgment disposes of Criminal Revision Petition No. 188/2012. Criminal Revision No.08/2013 and Criminal Acquittal Appeal No. 305 of 2012. The Criminal Revision Petition No. 188/2012 has been filed by the accused-petitioner against his conviction and sentence awarded by the learned Judicial Magistrate Muslim Bagh (hereinafter referred as, "the trial Court"), vide judgment dated 26th November, 2012, whereby the accused-petitioner Nazar Muhammad son of Baz Muhammad was convicted under section 489-F, P.P.C. and sentenced to suffer two years' R.I. and through the said judgment the trial Court acquitted accused Fazal Muhammad, Abdul Qadir and Abdul Zahir. The accused-petitioner Nazar Muhammad has assailed his conviction and sentence before the learned Additional Sessions Judge, Killah Saifullah (hereinafter referred as, "the appellate Court"), which was dismissed vide order dated 18th December, 2012. The accused/petitioner filed Crl. Revision No.08/2013 for enhancement of sentence awarded to the petitioner-accused Nazar Muhammad by the trial Court, while to the extent of acquitted accused/respondents Fazal Muhammad, Abdul Qadir and Abdul Zahir, the complainant-petitioner. has also filed Criminal Acquittal Appeal No.305 of 2012.

2. Facts of the case are that on 14th January 2011, the complainant Noorullah lodged FIR No.04/2011 at Police Station Muslim Bagh, under sections 420, 489-F/34, P.P.C., alleging therein that on 22nd July, 2010 Nazar Muhammad son of Abdul Zahir along with his father and two brothers Fazal Muhammad and Abdul Qadir have committed fraud with him of Rs.47,50,000/-. It has been alleged by the complainant that he sold out to them a Vigo pick-up of worth of Rs.33,00,000/-, at Quetta, while one Corolla (X) of worth Rs. 15,50,000/- and one unregistered (GLI) Corolla Car Model 2010 of Rs. 14,50,000/- was sold to them in his house situated at Pishin. The same were handed over to them through their father Abdul Zahir and two brothers Fazal Muhammad and Abdul Qadir. They in lieu of said vehicles had given a GLI, Corolla No.ATP-326 Model 2010 white in colour worth Rs.14,50,000/- and cash amount Rs.100,000/- (one lac), while the petitioners given him four cheques for remaining amount Rs. 47,50,000/- of the above said dealing, the cheques were dishonoured by the concerned Bank.

3. After registration of FIR, the investigation of the case was conducted by PW-7 Muhammad Yousaf, who took into possession the all relevant documents and subjected the accused on investigation, while on completion of investigation submitted the challan in the trial Court.

4. At the trial, the prosecution produced seven witnesses, whereafter the accused were examined under section 342, Cr.P.C. They also recorded their statements on oath under section 340(2), Cr.P.C. and produced three witnesses in their defence. On conclusion of trial and after hearing arguments, the accused Nazar Muhammad was convicted and sentenced as mentioned para No.1 by the trial Court and maintained by the learned appellate Court, whereafter the accused Nazar Muhammad has filed instant Criminal Revision No.188/2012, whereas through the impugned judgment the trial Court has acquitted the accused Abdul Zahir, Abdul Qadir and Fazal Muhammad, against whom the complainant filed Criminal Acquittal Appeal No.305 of 2012, while he has also filed Criminal Revision Petition No.08/2013 before this Court for enhancement of sentence of accused Nazar Muhammad.

5. Learned counsel for the accused-petitioner contended that the judgments so passed by the Courts below are suffering from misreading, non reading and mis-appreciation of evidence available on record; that the prosecution has failed to establish the business transaction, for which the cheques were issued by the accused-petitioner, hence on the face of it the case of prosecution is doubtful; that the statements of witnesses are contradictory to each other, but undue consideration was given to the version of prosecution, whereas the defence so raised was fully ignored; the impugned judgments of courts below are the result of misreading, non-reading and mis-appreciation of material available on record, hence the accused-petitioner deserves to be acquitted of the charge: hence the criminal revision petition for enhancement of sentence of the accused-petitioner as appeal filed against the acquittal of co accused deserve dismissal.

6. Learned D.P.G. while supporting the impugned judgments of Courts below contended that both the Courts below after properly appreciating the evidence in its true sense has rightly convicted and sentenced the accused-petitioner, who with mala fide intention issued cheques to the complainant knowingly that no balance is lying in his account, which were dishonoured by the concerned bank, while he has also supported the impugned judgments to the extent of acquittal of acquitted accused.

7. Learned counsel for the complainant while supporting the impugned judgments to the extent of sentencing the accused-petitioner contended that the trial Court though has found guilty of the charge to the accused-petitioner, thus it was incumbent upon the trial Court to award maximum punishment to him, but failed to exercise its powers in accordance with law, which fact has also been ignored by the appellate Court. He also contended that sufficient evidence are available on record connecting the acquitted accused with the convicted accused, who with furtherance of their common intention and object not only cheated the complainant, but also deprived him from his valuable properties, thus prayed for awarding punishment to the acquitted accused.

8. Heard the learned counsel and perused the available record. We have also perused the impugned judgments of Courts below and observed that though the evidence was appreciated by the Courts below to the extent acquitted accused persons, but undue weight was given to it while awarding sentence to the convicted accused/petitioner. The prosecution in order to substantiate the charge has produced the evidence of seven witnesses. The complainant of the case appeared as PW-1, who reiterated the contents of his fard-e-bayan and stated that he sold out to accused persons a Vigo for sale consideration of Rs.33,00,000/-, a X-Corolla for sale consideration of Rs.15,00,000/- and another unregistered vehicles, while in lieu the brothers and father of the accused/petitioner Noor Ullah Khan, Abdul Zahir. Abdul Qadir and Fazal Muhammad handed over to the complainant a Corrolla GLI 2010 Model un-registered for sale consideration amount of Rs.14,50,000/- and also handed over Rs.100,000/-, whereas for the payment of remaining amount of Rs.47,50,000/-, the accused-petitioner handed over him four cheques, which on presentation were dishonoured. PW-1 in his cross-examination admitted that without making payment of amount, the vehicles cannot be handed over. He also admitted that he did not submit the registration documents of any of the vehicle in the Police Station. PW-1 further admitted in his cross-examination that he submitted all the cheques in the bank of a Karachi situated at Tariq Road. He also admitted that no slip regarding dishonour of cheques was issued to him by the concerned hank staff of Karachi.

9. It has been observed that the statement of PW-1 silent with regard to the place, where such transactions were taken place. Furthermore, he has also failed to produce any single document establishing the existence of any sale transaction allegedly carried out in between the parties. The complainant/PW-1 has also failed to give full particulars of the said vehicle, which he had sold out to the accused-petitioner. Even otherwise, no receipt of Show Room that had been issued to the accused persons has been placed on record in order to establish the transaction of vehicles.

10. The next important witness of the prosecution is PW-2, who while contradicting the statement of PW-1, stated that the sale transactions of vehicles were carried out at Show Room and further stated that several persons were present in the Show Room when the transaction was being carried out. This witness has also failed to produce any letter pad or receipt of the Show Room establishing the sale transactions in between the parties. PW-3 is another prosecution witness, who allegedly stated that the transactions of vehicles were carried out in his presence, but no documentary evidence in such behalf was exhibited or produced before the trial Court. PW-3 also admitted in his cross-examination that he could not utter the registration of GLI and X-Corrolla vehicle.

11. PW-4 is the Bank Manager of Bank Al-Islami Muslim Bagh, who stated that the cheques presented before the Bank were dishonoured. PW-4 admitted in his cross-examination that the signatures over the three cheques were different. PW-5 is the witness of seizure memo Ex.P/5-A to Ex.P/5-E through which the cheques along with dishonour slips were taken into possession. The I.O. of the case appeared as PW-6 and PW-7, who counted the steps taken by him during investigation. The I.O. admitted in his cross-examination that besides others, the banks while dishonouring the cheques also written in the return memo that there is a difference in between the signatures of the issuer in the bank record and the signatures contained on the cheques.

12. It has been established from the above, that the complainant of the case has absolutely failed to produce any single document in the shape of agreement/receipt etc showing that any transaction of vehicles were carried out in between the parties. The complainant has also not produced any agreement to the effect that any agreement with regard to any sort of business has been carried out between the complainant and the petitioner. Suffice to state here that a cheque being mode of payment must appear to have been issued against consideration of business transaction or any other dealing of the date and time thereof, showing that the issuer is liable to pay the amount for the consideration of which, he has issued the cheque. If the issuance of such cheque is backed with no meaningful transaction creating an instant liability of payment of the amount thereof, against certain consideration involved therein, no criminal liability would prima-facie accrue in case of any cheque so issued and dishonoured since where there is no such liability there is no fraud or dishonesty referred to above. Admittedly, the complainant has absolutely failed to establish on record that there had been any transaction between him and the petitioner for which the cheque had been issued and subsequently was declared dishohoured. However, the petitioner/complainant has filed a civil case for recovery of alleged amount in the Court of Additional District Judge-II, Quetta, which was returned and against the said order Civil Revision No. 410/2011 is being decided by this Court separately. No criminal offence under the provisions of section 489-F, P.P.C. is made out as the complainant has failed to establish on record that the cheque has been issued dishonestly with intent to defraud him by the petitioner along with his brothers and father. The word 'dishonestly' used in section 489-F, P.P.C.; requires existence of mens rea to commit fraud by issuing a cheque. Mere issuance of cheque and its becoming dishonoured later, being actus reus, would not be able to attract the provisions' of section 489-F, P.P.C. simply for want of presence of element of 'dishonesty' in the matter. In other words, in absence of 'dishonesty' in issuance of such cheque, the prime ingredient of the offence shall not stand satisfied and there will be no offence of the aforesaid section of law, but it appears that while awarding conviction to the petitioner by the learned trial Court and upholding of the same by the appellate Court, all these legal and factual position of the case have fully been ignored and the judgments passed by the Courts below are the result of misreading, non-reading and mis-appreciation of evidence available on record, warranting interference of this Court. Reliance in this regard is placed on the case of "Malik Safdar Ali v. Syed Khalid Ali and 2 others", PLD 2012 Sindh

464. The relevant portion is reproduced herein below: "It is necessary to point out that a cheque being mode of payment must appear to have been issued against consideration of business transaction or any instant dealing of the date and time thereof, showing that the issuer is liable to pay the amount for which, he has issued such cheque, which when turned dishonoured, will make him 'guilty' of the aforesaid nature. In a matter of deciding whether or not, there appears a dishonest intention in issuance of cheque(s), the court should take notice of the facts culminating in issuance of such cheque(s). If the issuance of such cheque is backed with no meaningful transaction creating an instant liability of payment of the amount thereof, against certain consideration involved therein, no criminal accountability would prima facie accrue in case of any cheque so issued and dishonoured since where is no such liability there is no fraud or dishonesty referred to above". For the above reasons, the Criminal Revision Petition No.188/2012 is accepted and after setting aside the impugned judgments of Court below, the accused-petitioner Nazar Muhammad son of Abdul Zahir is acquitted of the charge under sections 420, 489-F, Cr.P.C. He is on bail; his bail bonds stand discharged after lapse of appeal period. Consequent to the above, the Criminal Acquittal Appeal No.305/2012 and Criminal Revision Petition No. 08/2013 are hereby dismissed. JK/143/Bal. Order accordingly.