P L D 1988 Karachi 409 (PLP)

SALEEM AKHTAR, J.‑‑On 5‑4‑1976 one Haji Ghulam Hussain the complainant made a written report alleging that one week earlier a man came to his shop representing himself to be from Adamjee which needed tea for its canteen. He took samples of tea and went away. On 3‑4‑1976 some one phoned the complainant stating that he was speaking .from M/s. Adamjee and was its Purchase Officer. He further stated that his representative had brought samples of tea which have been accepted and he was sending a man with a purchase order to whom delivery of 15 boxes of No.1013 and 15 boxes of number 196 should be delivered as it was needed immediately. He also stated that as it was Saturday cash cannot be arranged.. A person disclosing his name as Sattar came and 15 boxes were delivered to him. He acknowledged receipt on the back of the purchase order and delivered a cheque dated 5‑4‑1976 drawn on Muslim Commercial Bank, New Challi Branch for Rs.22,

950. The said Sattar promised to come and take delivery of the remaining 15 boxes on Monday the 5th April as Sunday was a holiday. After the delivery on 3‑4‑1976 the complainant went to offer evening prayer at Juna Market Mosque and while returning passed by the shop of his friend Dost Muhammad in Juna Market when he saw a Suzuki parked there which was loaded with cases of tea which had been supplied by him to Sattar. The cases were being unloaded but no enquiries were made by him. On 5‑4‑1976 in the morning he deposited the cheque in his account in the Bank, where he found that the cheque was forged. He therefore made a telephone call to Adamjee Industries and one Razaq Fazil the Purchase Officer informed that he had not issued any purchase order. The complainant then became sure that the goods he had seen being unloaded were the same goods which were delivered to Sattar and the purchase order and cheque delivered to him were forged. During investigation police came to the conclusion that the respondent 2 had prepared the cheque. The police also recovered 14 boxes from the house of respondent No.2 and one box from the house of respondent No.l. Finally challan was presented against both the accused charging them under section 419/420/488/471/472/380, P.P.C. After recording the evidence of the prosecution and defence witnesses the learned trial Court acquitted the accused under section 245, Cr.P.C. The appellant has filed this acquittal appeal. Mr. Niaz Ahmad Khan the learned Counsel for the appellant has contended that the impunged order is perverse and the finding is not supported by the evidence on record. He has taken us through the entire record and read over the evidence recorded before the trial Court. The respondents had denied the charges and examined defence witnesses. The respondents have taken the plea that the respondents Nos.l and 2 are brokers in the market and had dealings with the complainant. Due to disputes and differences they have stopped dealings with him and are doing business with other traders. They have not agreed to continue business with the complainant which has annoyed him and a false case has been cooked up. The complainant is the first prosecution witness. He stated that Abba Ali accused, the respondent No.l came to his tea shop representing that he has come from Adamjee Industries who wanted to purchase tea and demanded samples. After 4 or 5 days telephone call was received disclosing that he was Purchase Manager of Adamjee Industries Limited and that he was sending cheque for purchasing 30 boxes of tea which should be delivered to the bearer. Thereafter Abba Ali came with purchase order and delivered a cheque. 15 boxes) of tea were delivered and the remaining 15 boxes were to be delivered on Monday. In the evening when he was going to offer prayer he found the same tea boxes being unloaded and taken in the house of Ghulam Hussain accused, the respondent No.2. On Monday the 5th April when he deposited the cheque it was dishonoured; he then filed a complaint. It is noteworthy that in the F.I.R. he had not disclosed the name of Abba Ali but had mentioned the name as Sattar. In his examination‑in‑chief he has not stated that the accused had represented himself to be Sattar. From the F.I.R. it is clear that the complainant started with the allegation that some unknown man representing to be Sattar by making false representation has taken delivery of tea boxes against a forged cheque. This gives the impression that the complainant did not know the respondent No.l. However, from the defence evidence it is clear that both the respondents were tea brokers in the same market where the complainant is carrying on business and they had dealing with him but due to some dispute they had stopped business with him. The respondents/ accused were fully known to the complainant and, therefore, the failure to disclose the name of Abba Ali reflects doubt on the authenticity of his statement. In the F.I.R. it was stated that while returning after offering evening prayer on Saturday at Juna Market Mosque he passed from the shop of Dost Muhammad where he found a Suzuki van being unloaded. In Court he has improved the case by saying that the boxes were being taken in the house of Ghulam Hussain. If this was so then why this fact was not mentioned in the F.I. R. and name of Ghulam Hussain was not disclosed. From these statements it is clear that the complainant was aware of the names of respondents but purposely did not disclose the same as these facts would have completely contradicted his entire case as stated in the F. I. R. So far delivery of 15 tea boxes is concerned it was acknowledged by the respondent No.l at the time of taking delivery as mentioned in the F.I.R. The purchase order Exh.2‑A was produced and we have examined the same which bears an endorsement by some one acknowledging receipt of boxes of tea. This endorsement is alleged to have been made by respondent No. 1 and it was an important piece of evidence to prove delivery. In his statement P. W.1 does not speak about it. P.W.4 is the employee of the complainant P.W.1 and delivery was made in his presence. He also does not say that the respondent No.l acknowledged delivery on the back of the purchase order. Therefore, the endorsement has not been proved by the persons in whose presence it is alleged to have been written. This acknowledgment was not even referred to the handwriting expert for his opinion although other documents were sent for that purpose. The delivery to respondent No.l is sought to be proved by recovery as well. In this regard P.W.2 Muhammad Naim who is the nephew of the complainant, resides at P.I.B. Colony and also works with him, Muhammad Nawaz P.W.4, who is an employee of the complainant and resides at Joria Bazar and Gulab Khan P. W.5 a labourer in Joria Bazar have been examined. They are witnesses to the recovery from the house of the respondents. Gulab Khan has stated that he had unloaded and stored 14 boxes in the house of Ghulam Hussain and one box in the house of Abba Ali. At his pointation. the police recovered those boxes from the house of respondents Nos. 1 and

2. It is not known how Gulab Khan was found out by the complainant or police. If the complainant was aware of his name then it should have been mentioned in the F.I.R. but neither in the F.I.R. nor in his examination‑in‑chief such a statement has been made. In his cross‑examination the complainant admitted that before he had lodged the report he was aware of the name of Gulab Khan. The sequence of events proves that the name of Gulab Khan could not be inquired and found out from the time the F.I. R. was lodged and before the recovery was made. The complaint was registered on 5‑4‑1976 at 20‑15 hours. It was sufficiently late in the evening when the business and shopping areas are almost closed and labourers do not stay in the market. The police took action immediately and at 21‑45 hours recovered 14 boxes from the house of respondent No.2 and at 22‑35 hours recovered one box from the house of respondent No.l. Therefore, from the time when the complaint was lodged, the first recovery was made within a period of 1 hour 30 minutes. It is unbelievable that during this period of one and half hours the complainant could have made enquiries and found out the name of the labourer Gulab Khan. The complainant seems to have realised this aspect of the case and tried to improve his case by stating that he was aware of the name of Gulab Khan before the complaint was lodged but has not given any explanation for exclusion of the name of such a material witness. Further more P. W.2 has stated that after the police had come the complainant called the labourer (Gulab Khan) and he pointed out the places where he had kept the tea boxes. This shows that Gulab Khan was available to the complainant at his call after 8 p. m. in the market which by that must have closed. These circumstances lead to the conclusion that he is not an independent witness, his presence is doubtful and no reliance can be placed upon him. It is well settled that interested witnesses cannot be relied upon for proving recovery. The witnesses should be from the locality A but in the present case all the three witnesses namely Muhammad Naim, Nawaz and Gulab Khan are not from the locality. Investigating Officer has explained that when he went to the premises to recover the goods no male members were available and, there were only ladies. He, therefore, could not find out any one as a mashir there. Therefore, he made those three persons as witnesses whom the complainant had asked to accompany the police. This explanation by itself is frivolous and absurd. The recovery was made after 9‑45 p.m. when in any residential locality people usually come back from their business or place of work. If no male member was available in the building at least in the neighbourhood many people could have been available. No effort seems to have been made in this direction. The Investigating Officer accompanied by three witnesses from the shop of the complainant went for recovery. They are interested or doubtful', witnesses. In the face of this evidence on record and the conduct of the Investigating Officer in completely ignoring the elementary principle of law and justice no reliance can be placed on his evidence. According to the prosecution the respondents had prepared the cheque. The handwriting expert has opined that the cheque was C in the handwriting of respondent No.2 but it does not bear the signature in the hand of any accused. There is no evidence to show that the cheque was signed by respondent No.l. Mr. Muzaffarul Haq the learned counsel for the respondents has contended that mere preparation of cheque is not sufficient for the purposes of conviction because even if a cheque is prepared unless it bears the signatures of the account‑holder it cannot be encashed. This cannot be correct in all cases and circumstances. If any one prepares a cheque and delivers it to' another person knowing that he would complete it by making forged signature and obtain delivery of goods against it, then both of them commit cheating. Therefore, unless it is established that the respondent No.l had signed the cheque and delivered the same to the complainant representing it to be a cheque issued by Adamjee Industries and obtained delivery of goods the respondents cannot be said to have committed forgery and cheating. The delivery of cheque against 15 boxes has not been established beyond reasonable doubt. From the evidence it is clear that the respondents are brokers in the market and they had dealings with the complainant. However, some dispute had arisen between them and the respondents stopped business with him resulting in loss to the complainant. The respondents were, therefore, known to the traders, complainant and labourers of the market. From the very beginning attemot was made by the complainant not to disclose the name of respondent No.l and thus, put up a case of forgery and fraud. The conduct of the complainant in the background as discussed and disclosed by defence witnesses makes the entire case doubtful. There is a material contradiction in the statement of the complainant which adversely reflects upon the authenticity of the case. According to the complainant he deposited cheque in the bank on 5‑4‑1975 and when it was dishonoured the suspicion in his mind which had arisen on 3‑4‑1976 when he had seen the unloading of the tea boxes was confirmed and he lodged the complaint. From the record it is clear that the cheque was drawn on a branch of Muslim Commercial Bank in which the complainant did not have an account, He deposited this cheque in his account in a different branch which in the normal course would have sent for encashment from its other branch. The document produced and the complainant's statement prove that the cheque was deposited on 6‑4‑1976 and not on 5‑4‑1976. Therefore till's 6‑4‑1976 the complainant could not have known that the cheque would be dishonoured. Possibly the complainant could have made enquiries from the bank from where the cheque was drawn but this has not been established nor explained by the prosecution. Therefore the entire version of the prosecution regarding encashment and confirmation of suspicion is contradicted. The report was lodged before the cheque was dishonoured. This fact belies the statement of the complainant. Another aspect of the case which makes the prosecution case more doubtful is that as stated in the F.I.R. the complainant did not know the respondent No.l then why he accepted a post‑dated cheque. The delivery is alleged to have been given on 3‑4‑1976 and cheque was dated 5‑4‑1976. Usually traders are reluctant to accept cheques much less a post‑dated cheque from a person who is not known to them. No valid explanation for issuing and accepting a post‑dated cheque has been offered by the prosecution. The prosecution has relied on the evidence of Mukhtar Ahmad P . W .9 to establish that the cheque was prepared by respondent No.2. The Investigating Officer P.W.10 has stated that after arresting the respondents he obtained their specimen handwriting before the Magistrate. P.W.9 admits to have received specimen handwriting on 8‑5‑1976 but the same were returned for want of more specimen of handwriting in different moots and space. Fresh specimen of handwriting was received on 29‑5‑1976. P.W.9 has thus based his opinion on this specimen of handwriting. Except the words of the P. W.10 there is nothing to show that fresh specimen of the writing of the respondents was obtained and sent to P.W.9. The manner in which the P.W.10 has conducted the investigation hardly any reliance can be placed on his evidence. In these circumstances the opinion of P. W.9 cannot be relied upon. Mr. Niaz Ahmad Khan the learned counsel for the appellant has contended that the judgment of the learned trial Court does not give any reasoning for acquittal of the accused. In the judgment first a summary of F.I.R. , charges and evidence of each witness has been stated. After stating the points for determination reasons have been given in which contradictions have been pointed out. It is true that the evidence has not been discussed at length with reference to charges and point for determination as it ought to be in a proper judicial pronouncement. The judgment should discuss the merits and demerits of the statements of witnesses with reference to the charges. 1F It is not sufficient to summarise the statements of witnesses and point out some contradictions. The contradictions should be material and it should be stated how they affect the authenticity and veracity of the prosecution case. However, we have examined the entire evidence G and are of the view that the conclusion reached by the learned trial Court is correct. It is well settled that an appeal against acquittal can be allowed if. the impugned order is perverse, foolish and absurd. And further that on the basis of evidence on record no other order except the order of conviction can be passed. In the present case as discussed above there are infirmities and contradictions in the prosecution) evidence which cannot prove the charges against the respondents I beyond reasonable doubt. The appeal is, therefore, dismissed. M. Y. H. /S‑184/K Appeal dismissed.