2025 P Cr (PLP)

Aalia Neelum, C.J.

This revision petition is directed against the judgment dated 31.07.2012 passed by the learned Additional Sessions Judge, Gujranwala in Criminal Appeal No.20 of 2012. Wherefore, the learned Additional Sessions Judge, Gujranwala dismissed the appeal of the petitioner confirming the judgment of conviction and sentence passed by the learned trial Court vide judgment dated 03.05.2012, whereby the learned Magistrate Section-30, Gujranwala, convicted the petitioner under section 420 P.P.C and sentenced him to undergo 05-years rigorous imprisonment along with fine of Rs.50,000/- and in default in payment of fine, to further undergo 06-months S.I. The petitioner was also convicted under section 468 P.P.C and sentenced to undergo 05 years of rigorous imprisonment along with a fine of Rs. 50,000/- and, in default, to pay the fine, to further undergo 06 months of SI. The petitioner was further convicted under section 471 P.P.C and sentenced to undergo 05-years rigorous imprisonment along with a fine of Rs. 50,000/- and in default in payment of fine, to further undergo 06-months S.I. All the sentences awarded to the petitioner would run concurrently. The benefit of section 382-B Cr.P.C. was also extended in favor of the petitioner. Wherefore, being aggrieved by the judgment dated 31.07.2012 of dismissal of the Criminal Appeal No.20 of 2012 passed by learned Additional Sessions Judge, Gujranwala, and judgment dated 03.05.2012 passed by the learned Magistrate Section-30, Gujranwala in case FIR No.794 of 2010, dated 18.10.2010, offence under Sections 420/468/471 P.P.C, registered at Police Station Model Town, District Gujranwala, the petitioner-convict has come up with this revision petition.

2. Briefly, the prosecution story as alleged in the FIR (Ex.PG) lodged on the application (Ex.PE) of Nasrullah Khan, (PW-1)-the complainant is that he (PW-1) was a businessman/carriage contractor of PSO in the name and style of M/s Chattha Enterprises and the petitioner/convict used to distribute the oil of the complainant's business through oil tanker No. GLT/5840 from one depot to another; that on 27.05.2009, the oil tanker of the petitioner/convict was transporting 25000 liters diesel from Sheikhupura Depot to Rawalpindi Depot, when the same was snatched by unknown accused persons in the area of Wazirabad Bypass, whereupon an FIR No.219/2009 under section 392 P.P.C was got registered by the petitioner/convict; after that, empty oil tanker was retrieved, which the petitioner/convict took on superdari; after that, to compensate the company, the petitioner/convict sold out the oil tanker to the complainant in presence of witnesses namely Mirza Abdul Majeed, Muhammad Ijaz and Rana Muhammad Arif for a consideration of Rs.20,50,000/- and delivered the original registration book of oil tanker, transfer deed and photocopy of I.D. Card; that based on the transfer deed dated 28.08.2009, the complainant got transferred the oil tanker bearing registration No. GLT/5840 in his name from the Motor Registering Authority/Excise and Taxation Department, Gilgit Baltistan; later on, on 24.05.2010 the petitioner/convict filed an application to Excise and Taxation Department Gilgit Baltistan that transfer deed dated 28.08.2009 was forged and bogus, based on which Excise and Taxation Authority, cancelled the registration from the name of the complainant; it was alleged by the complainant in the FIR that the petitioner/convict handed over the bogus/forged transfer deed and thus committed fraud with the complainant.

3. After registration of the case, the investigation of this case was conducted by Muhammad Mansha S.I. (PW-4)-the investigating officer, who, having found the petitioner/convict guilty, prepared a report under section 173 of Cr.P.C. and sent the same to the court of competent jurisdiction. After that, the trial court formally charge sheeted the petitioner/convict on 06.10.2011, to which he pleaded not guilty and claimed trial. In support of its version, the complainant produced as many as four (04) witnesses. The petitioner/convict was also examined under Section 342 Cr.P.C., wherein he did not opt to appear as his own witness under section 340(2) and refused to adduce any evidence in his defence.

4. After recording evidence and evaluating the evidence available on record, considering arguments advanced from both sides, the learned Magistrate, Section-30, Gujranwala vide judgment dated 03.05.2012, convicted the petitioner/convict in afore-stated terms. Feeling aggrieved, the petitioner/convict preferred an appeal before the learned Sessions Judge, Gujranwala, and the same was entrusted to the learned Additional Sessions Judge, Gujranwala, who vide judgment dated 31.07.2012 dismissed the appeal filed by the petitioner. Hence, instant petition.

5. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.

6. It is well settled that revisional jurisdiction cannot re-embark upon re-appreciation of evidence unless the finding of fact is illegal or perverse. A scrutiny of the evidence that this court has made shows that the lower courts mis-appreciated evidence on the record, resulting in a gross failure of justice warranting interference by this Court.

7. On perusal of the evidence, per the prosecution's case narrated in the FIR (Exh. PG), the incident occurred on 24.05.2009 for cheating. As per the prosecution's case, petitioner Muhammad Shafique submitted an application before the Excise and Taxation Department, Gilgit-Baltistan, for registration cancellation in the complainant's name and got the registration cancelled on 24.05.2010. As per the prosecution case, Nasrullah Khan (PW-1)-the complainant, runs a carriage company, Messer Chatta Enterprises, and the petitioner Muhammad Shafique used to ply his oil tanker having registration Number GLT-5840 in the carriage of Nasrullah Khan (PW-1)-the complainant, for transportation of oil. On 27.05.2009, the tanker was en route to Rawalpindi with 25,000 liters of diesel from the Sheikhupura depot. When it reached the Wazirabad bypass, some unknown persons snatched it. The accused/petitioner got registered FIR No. No. No.219 (Ex.DJ) on 01.09.2009 under Section 392 P.P.C at Police Station Sadar Wazirabad, District Gujranwala. Later, the tanker was recovered and found empty. The oil was stolen. The accused/petitioner took the empty tanker on a superdari. As per prosecution case, to compensate for the loss, the petitioner, Muhammad Shafique, sold the tanker to Nasrullah Khan (PW-1), the complainant, for Rs.20,50,000 in presence of Mirza Abdul Majeed (given up PW), Muhammad Ijaz (PW-2) and Rana Muhammad Arif (given up PW). The petitioner, Muhammad Shafique, allegedly handed over the original registration book (Exh-PA) with a transfer deed (Exh. PC) and a copy of the ID card to Nasrullah Khan (PW-1)-the complainant, and still these documents were in the possession of Nasrullah Khan (PW-1), the complainant. Based on the transfer deed dated 27.05.2009 (Exh. PC), Nasrullah Khan (PW-1), the complainant, got transferred oil tanker in his name on 03.11.2005 from the Excise and Taxation Department, Gilgit-Baltistan. After nine months of registration, on 24.05.2009, the Excise and Taxation Department, Gilgit-Baltistan, cancelled the registration (Exh.PD) in the name of Nasrullah Khan (PW-1), the complainant on the application of the petitioner, Muhammad Shafique. The transfer deed dated 27.05.2009 (Exh. PC) was bogus and a fake deed, and the petitioner, Muhammad Shafique, committed fraud, with Nasrullah Khan (PW-1), the complainant. Nasrullah Khan (PW-1)-the complainant during cross-examination admitted that after filing of application by the petitioner-Muhammad Shafique with the Excise and Taxation Office, Gilgit Baltistan, he (the complainant) filed civil suit, got stay order and handed over copy of the stay order in the said office and despite handing over the stay order, the Excise and Taxation Authorities cancelled the registration and his (the petitioner) registration was restored. He (PW-1)-the complainant also admitted that the petitioner, Muhammad Shafique, also got registered FIR No.1431/2010 (Ex.DF) dated 25.10.2010 under sections 420/468/471 P.P.C at P.S. Lower Mall, Lahore against him (the complainant). The FIR No.1431/2010 dated 25.10.2010 (Exh. DF) reveals that the petitioner, Muhammad Shafique, after getting the transfer letter cancelled by the Excise and Taxation Department, Gilgit-Baltistan, got registered said FIR (Exh.DF). Whereas Nasrullah Khan (PW-1), the complainant, deposed during examination-in-chief that: - Muhammad Ijaz (PW-2) deposed during examination-in-chief that: - Contrary to the above deposition Nasrullah Khan (PW-1), the complainant stated in his cross-examination that he paid Rs.4,50,000/- at Umer Plaza on 28.08.2009 at 11/12:00 (noon), whereas Muhammad Ijaz (PW-2) deposed during cross-examination that it took place on 28.08.2009 at 03/04:00 (afternoon) and Nasrullah Khan (PW-1), the complainant paid only Rs.4,50,000/- in his presence, which creates doubts about the transaction. Nasrullah Khan (PW-1), the complainant, admitted during cross-examination that: - Muhammad Ijaz (PW-2) admitted during cross-examination that:- Muhammad Ijaz (PW-2) admitted that he repaired the vehicles of Nasrullah Khan (PW-1)-the complainant. Muhammad Ijaz (PW-2) is not an independent witness and the complainant has not examined an independent witness to corroborate the prosecution's version. Muhammad Mansha S.I (PW-4)-the investigating officer deposed during cross-examination that: - Admittedly, there is no written agreement between Nasrullah Khan (PW-1)-the complainant and the petitioner about the sale and purchase of the Oil Tanker bearing registration No. GLT/5840 and regarding mutual business, from which it can be ascertained that in case of any loss, if it occurred, the petitioner, Muhammad Shafique, would be liable to fulfill it. Nasrullah Khan (PW-1), the complainant, admitted during cross-examination that: - It is also admitted that the petitioner was convicted without securing the document and referring the same for verification, as well as whether the thumb mark and signatures upon the alleged transfer letter/deed are genuine. The petitioner has denied that he sold the Oil Tanker or executed any transfer letter. It is an admitted fact that after the judgment of the trial court, the suit for declaration and mandatory injunction filed by the complainant (PW-1) on 29.09.2010, and the suit for recovery of the Oil Tanker bearing registration No. GLT/5840 filed by the petitioner, Muhammad Shafique, against Nasrullah Khan (PW-1)-the complainant on 18.11.2013, was decided by the learned Civil Judge 1st Class, Gujranwala, through a consolidated judgment dated 21.06.2016, whereby the suit filed by the complainant was dismissed, while the suit filed by the petitioner, Muhammad Shafique, was decreed. Learned counsel for the petitioner placed on the record the aforesaid documents through C.M. No.1/2022, which are being taken into consideration under section 428 Cr.P.C. Learned counsel for the complainant remained unable to rebut these facts. After carefully considering the prosecution witnesses, this court found considerable doubt about their credibility as truthful witnesses. So, no reliance could be placed on their testimony for the petitioner's conviction.

8. Thus, in the opinion of this Court, both the courts below, i.e., the trial court and the appellate court, have committed grave illegality while convicting the petitioner for the offence. In these circumstances, this Court thinks that interference of this Court with the conviction of the accused/petitioner for the offence under Sections 420/468/471 P.P.C. is called for. This Court finds no evidence to prove the charges against the accused/petitioner. I accordingly allow Criminal Revision No.834 of 2012, set aside the conviction and sentence awarded to the accused-petitioner and acquit him of the charges in case FIR No.794 of 2010, dated 18.10.2010, offence under Sections 420/468/471 P.P.C, registered at Police Station Model Town, District Gujranwala. The petitioner is on bail. His surety stands discharged from the liability. JK/M-81/L Revision allowed.