2020 PLP 144 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

This Criminal Acquittal Appeal is directed against Judgment dated 15.02.2016. passed by the learned Judicial Magistrate-I, Saeedabad in Criminal case No.56 of 2015, re: State v. Muhammad Yameen and another, emanating from FIR No.61 of 2013, registered at Police Station Saeedabad for the offence under sections 489-F, 420, P.P.C, whereby the respondents Nos. 2 and 3 have been acquitted of the charge, extending them benefit of doubt.

2. Concisely the facts giving rise to the filing of the instant Criminal Acquittal Appeal, are that accused Muhammad Yameen ["the respondent No.2"], who allegedly borrowed Rs.400,000/- from complainant Muhammad Nasir ["the appellant"], in collusion with accused Muhammad Jaffar ["the respondent No.3"], issued the subject cheque No.5475749 of MCB Branch New Saeedabad to the appellant through naikmards in a private faisla, which on its presentation in the concerned bank, was dishonoured on account of insufficient funds on 15.04.2013, and then the subject FIR was lodged on 13.07.2013 at Police Station Saeedabad for the above incident. After usual investigation, the final report was submitted against the respondents Nos.2 and 3.

3. The learned Trial Court after completing all the legal requirements framed a formal charge against the respondents Nos.2 and 3, to which they pleaded not guilty and claimed their trial. The prosecution in order to prove its case, examined the appellant, who is complainant at Ex.03. who produced FIR at Ex.03/A: PW-02 Qamaruddin at Ex.04; PW-3 SIP Fateh Muhammad. the investigating Officer at Ex.05, who produced the order on application under section 22-A&B, Cr.P.C. of learned Additional Sessions Judge/Ex-Officio Justice of Peace, Matiari at Ex.05/A, entry of lodgment of FIR at Ex.05/B, original cheque No.5475749 dated 15.04.2013 of MCB. amounting Rs.400,000/- at Ex.05/C, memo of Bank at Ex.05/D, memo of receiving of cheque at Ex.05/E, memo of site inspection at Ex.05/F and report of MCB at Ex.05/G: PW-4 Sarfaraz at Ex.06; PW-5 Haji Ali Akbar at Ex.07; then the prosecution side was closed vide statement at Exh:

08. The statement of accused as required under section 342, Cr.P.C. were recorded at Exh:09 and Exh:10 respectively, wherein they denying all the allegations, professed their innocence. They did not opt to examine themselves on oath. However respondent No.2 Muhammad Yameen examined Sajan Khan at Ex.12, and Shafeeq Ahmed at Ex.13 as his defence witnesses, but respondent No.3 Muhammad Jaffar did not examine any person as his defence witness.

4. At the conclusion of the trial and after hearing the parties' counsel, the learned Trial Court acquitted the respondents Nos.2 and 3 of the charge, extending them benefit of doubt vide impugned judgment dated 15.02.2016.

5. Having felt aggrieved by the aforesaid acquittal judgment, the appellant has filed this criminal acquittal appeal.

6. Learned counsel for the appellant has mainly contended that the prosecution by adducing the evidence has proved its case, but the learned Trial Court without appreciating the evidence in proper manner, has passed the impugned Judgment. acquitting the respondents Nos.2 and

3. The learned counsel prays that impugned Judgment may be set-aside and the respondents No.2 and 3 may be convicted. Learned counsel has placed his reliance on the cases of Farooq Shah v. The State (2013 PCr.LJ 688), and Muhammad Sultan v. The State (2010 SCMR 806).

7. The learned Assistant Prosecutor General, has argued that the impugned acquittal Judgment dated 15.02.2016 is based on proper appraisal of evidence and there is no illegality in the impugned acquittal judgment, passed by the learned Trial Court. She prays for dismissal of the instant appeal.

8. The respondent No.2, who is present in person, has stated that he is innocent and he was falsely implicated in the subject case by the appellant due to previous hostility between them over the business and petrol pump. None is present for the respondent No.3 to address the Court on his behalf.

9. I have considered the submissions of learned counsel for the appellant, learned Assistant Prosecutor General, and the respondent No.2, and have gone through the material brought on record.

10. From a perusal of the record it would be seen that the incident is alleged to have taken place on 15.04.2013, while the subject FIR was registered on 13.07.2013 with unexplained delay of two months and twenty eight days. which is fatal to the prosecution case., the appellant has deposed that On 28-11-2011 I gave Rs. 400,000/- through stamp Paper to accused Muhammad Yameen. On 01.03.2012 accused Yameen gave me a cheque of Rs.400,000/- of Bank Al-Habib bearing cheque No.5088936 and whereas in his cross examination the appellant has admitted that accused Muhammad Yameen went to perform Umrah from 04-02-2012 to 07-03-2012, meaning thereby on 01.03.2012 accused Yameen was away to Saudi Arabia. which negates the version of the appellant, who has further admitted that I did not receive the receipt from accused Muhammad Yameen regarding the money I gave him. I did not submit the original copy of stamp paper before court Qamaruddin gave the cheque of MCB bank, and whereas according to the version of the appellant in his subject FIR, accused Muhammad Yameen and Jaffar Ali gave the subject cheque to him through the naikmards, but neither the names of the naikmards have been disclosed nor has anyone among them been cited or examined as witness by the prosecution. The appellant further has admitted that it was held between me and Yameen that in default of payment, Yameen would hand over the possession and charge of his petrol pump to me, while P.W Qamaruddin in his cross examination has stated that I do not know whether it was held that in default of payment Muhammad Nasir would get the charge and possession of said petrol pump and withdraw from the FIR 90/2012. P.W Haji Ali Akber has deposed that Four five years, ago Muhammad Nasir and Muhammad Yameen became agreed to make business. They made such stamp paper and got my signature as a witness. Accused Muhammad Yameen received Rs. 4,00,000/- from Muhammad Nasir in this regard, while this witness in his cross examination has contracted himself by admitting that Muhammad Nasir did not give the payment to accused Muhammad Yameen in my presence. Muhammad Yameen filed Human Right petitions against me due to dispute over a plot: moreover the appellant has also admitted that there is dispute over plot between us. The prosecution has also not examined any bank official as witness. Apart from the aforesaid discrepancies, infirmities and material contradictions etc, rendering the prosecution case highly doubtful, there are many other infirmities and discrepancies therein, which need not to be discussed here just to save the space. Thus, the prosecution has failed to prove its case against the respondents Nos.2 and 3 beyond a reasonable doubt and the learned Trial Court appreciating the evidence brought on record and considering the aforesaid aspects of the case, has acquitted the respondents Nos.2 and 3, extending them benefit of doubt vide impugned Judgment dated 15.02.2016. The penultimate Para of the impugned judgment, which is relevant, is reproduced here: "

13. The crux of total discussion, while considering the material available on record is that, accused Yameen was in business with the complainant and had borrowed some amount which is alleged to be Rs.400,000/- by the complainant. He then issued a cheque which was dishonoured and FIR No.90 was lodged but due to intervention of naikmards dispute was resolved through a fesla, where Yameen was made bound to repay the amount or otherwise handover the charge of petrol pump to the complainant. Afterwards the possession of the pump was handed over and then the complainant patched up with the accused Yameen in FIR No.90 which was then cancelled. The complainant version is that the accused Yameen gave the instant cheque that is why he patched up and withdrew from that FIR, but the instant cheque was also dishonoured and he then lodged the present FIR. The record reveals that stamp paper of borrowing money has not been produced. And accused yameen was not signatory of that fesla. Moreover there is no mention of giving cheque by the accused yameen to the complainant. Contrary to that the complainant himself deposed in his chief examination that accused Jaffar gave him the cheque while during cross examination he deposed that Qamardin gave him the instant cheque. The possession of pump as per the deposition of the Complainant is with Haji Ali Akbar. And the defense plea is that complainant in collaboration of Qamardin managed this case, which was instigated by one Haji Ali Akber to whom the accused was in Human Rights litigation over a plot dispute, which was also confirmed by the persecution witnesses."

11. It is pertinent to mention here that an accused is presumed to be innocent and after regular trial if the accused is acquitted, he earns double presumption of innocence, which will remain attached with the judgment of acquittal and heavy onus is on the prosecution to rebut the said presumption; such acquittal judgment cannot be interfered with unless it is proved that same is arbitrary, shocking, capricious, fanciful and on perusal of the evidence no other decision can be given except that the accused is guilty: there has been complete misreading of evidence leading to miscarriage of justice; and, while evaluating the evidence, difference is to be maintained in appeal from conviction and in appeal against acquittal. Reliance in this context may be placed on case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), wherein Hon'ble Supreme Court of Pakistan has held that: "An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference. The petition having no merit is dismissed and leave is refused." In case of State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585). the Hon'ble Supreme Court of Pakistan has held that: "while 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." In case of Yar Muhammad and 3 others v. The State (1992 SCMR 96), the Hon'be Apex Court of Pakistan has observed that: "Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417 Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice".

12. The case Law cited by the learned counsel for the appellant being distinguished on facts and circumstances is not applicable to the case one in hand, and even none of the cited cases involved the acquittal judgment.

13. In view of what has been discussed above, I am of the considered view that the prosecution has failed to prove its case against the respondents Nos.2 and 3 beyond a reasonable doubt and finding of acquittal, rendered by the learned Trial Court is neither arbitrary nor capricious and such a conclusion arrived at by the learned trial Court based on appreciation of evidence, suffering from no illegality or infirmity or perversity or even any jurisdictional defect, calls for no interference in exercise of jurisdiction under 417, Cr.P.C. And, thus, the instant criminal acquittal appeal being devoid of merit is liable to be dismissed. These are the reasons of short order announced by me on 13.01.2020 whereby this Criminal Acquittal Appeal was dismissed. JK/M-120/Sindh Appeal dismissed.