2013 PLP 695 (YLR)

SADIQ HUSSAIN BHATTI, J.

Through these two Criminal Acquittal Appeals Nos.512 and 513 of 2010, the appellant/complainant Fahim Ahmed has called in question judgment dated 11-10-2010 delivered by IInd Judicial Magistrate, Karachi West whereby the respondent/ accused Abid Hussain charged under section 489-F, P.P.C., issued two Cheque bearing No.0135471 for Rs.2,40,000 and another Cheque No.0128268 for Rs.3,50,000., vide F.I.R. No.125 of 2006 of Police Station Jackson, Karachi and Cheque No.028270 for Rs.50,000 dated 28-4-2006 in favour of the appellant/ complainant Fahim Ahmed vide F.I.R. No.267 of 2006 of Police Station Jackson, Karachi, as sale transaction of six offices situated at Mezzanine Floor, Sultan Center, Keamari, Karachi, West. Since the above said cheques were dishonoured at the time of presentation by the concerned Bank. During the trial, the respondent/accused Abid Hussain was given benefit of doubt and was acquitted in both the cases. As both the appeals arise out of two F.I.Rs. bearing Nos.125 and 267 of 2006 of same Police Station (Jackson), the complainant, accused, prosecution witnesses and the property involved in these cases are common, hence, I intend to dispose of both of them by a single judgment. The trial Court had disposed of the above case by invoking section 235, Cr.P.C. by amalgamating them and tried as single cases leading case would have been F.I.R. No.125 of 2006 of Police Station Jackson, Karachi. The prosecution story as emerged from both the cases are that the appellant/complainant Fahim Ahmed lodged F.I.R. that he is residing in Keamari, Karachi and engaged in the business of Electronics having Electronic Shop in Jackson Market, Keamari, Karachi and is the owner of six offices situated at Mezzanine Floor, Sultan Center, Keamari, Karachi, West due to dispute between the Parties, the appellant/complainant Fahim Ahmed verbally agreed to sell his said offices to the respondent/accused Abid Hussain for consideration of Rs.9,40,000 including Rs.50,000 towards maintenance and Rs.40,000 for electric meters. After negotiation, the respondent/accused Abid Hussain agreed to purchase the said offices in the sum of Rs.8,50,000 excluding maintenance charges, electricity and issued Acknowledge Receipt in presence of witnesses against which respondent/ accused Abid Hussain issued five postdated cheques out of them three Cheques bearing No.0135471 dated 3-3-2006 for Rs.2,40,000, Cheque No.0128268 for Rs.3,50,000 and Cheque No.028270 for Rs.50,000 dated 28-4-2006, which were dishonoured on presentation before Allied Bank Limited, Keamari Branch, Karachi for insufficient balance. The Police as usual after registration of the above F.I.Rs. bearing 125 and 267 of 2006 took up the investigation and after completing the same sent up the accused before trial Court. During the trial proceedings, relevant papers as required by law were supplied to the respondent/accused Abid Hussain. Charges (Exhs.2 and 3) were framed against the respondent/accused Abid Hussain, who pleaded not guilty and claimed to be tried vide Exh.2-a and Exh.2-a respectively. The prosecution in order to prove its case, during trial, examined the following prosecution witnesses:-- (1) P.W.1 Appellant/ Complainant Fahim Ahmed Ex.3. (2) P.W.2 Azizur Rahman Ex.4. (3) P.W.3 Allah Dad Niazi, Manager ABL Ex.6 (4) P.W.4 I/O of the case Inspector Saifullah Niazi, Ex. 7 Thereafter learned ADPP closed the prosecution side and given up the remaining P.Ws. vide Exh.8. Both trials commenced on the same date i.e. 5-12-2006. During the subsequent trial, the prosecution examined the same above named P.Ws. in the same order and the prosecution closed its side vide Exh.8. According to the learned counsel for the appellant/complainant Fahim Ahmed, he is resident of Baba Square and is running business of Electronics in Jackson Market, Karachi. He has six offices located at Mezzanine Floor, Sultan Center, Keamari, Karachi. The respondent/accused Abid Hussain is well known to him, who asked him if he want to sell his offices. The appellant/complainant Fahim Ahmed had agreed to sell his offices. Such deal was struck, transaction was reached in the sum Rs.9,40,

000. Five Cheques, details of which have been mentioned, were given to him for various dates, out of which, three Cheques bearing No.0135471 dated 3-3-2006 for Rs.2,40,000 Rs.2,40000, Cheque No.0128268 for Rs.3,50,000 and Cheque No.028270 for Rs.50,000 dated 28-4-2006, which were dishonoured on presentation before Allied Bank Limited, Keamari Branch, Karachi for insufficient balance, as a result thereof, he lodged two F.I.Rs. bearing 125 and 267 of 2006 at Police Station Jackson, Karachi. Learned counsel for the appellant further contended that the P.W.2 Azizur Rahman (Exh.4) alias Farhan son of Abdul Rahman testified that he knew appellant/ complainant Fahim Ahmed and respondent/ accused Abid Hussain, as they belong to same community. He further stated that on 20-10-2005, appellant/ complainant Fahim Ahmed asked him that he was going to lodge a case against respondent/accused Abid Hussain, as he was a serious trouble for him and his tenants but on the advice, appellant/ complainant Fahim Ahmed agreed that instead lodging of cases, dispute be resolved by way of talks. Thereafter, appellant/complainant Fahim Ahmed went to the office of Anar Khan at Sultan Center, Keamari Karachi where Yaqoob Khan and Alam Zeb were also present and so also respondent/accused Abid Hussain. He initiated talks to settle the dispute once for all, which the respondent/accused Abid Hussain told that he was willing to purchase all six offices of appellant/complainant Fahim Ahmed to bring the dispute once of all. Final deal was struck at Rs.8,50,000 including Rs.50,000 as maintenance. Anar Khan had prepared receipt, which was signed along with Yaqoob Khan and Alam Zeb had also signed the same. After completing formalities Suites were distributed, keys and duplicate keys of the offices were handed over to respondent/ accused Abid Hussain. He further stated that later on appellant/complainant Fahim Ahmed came to him and informed him that cheques were issued by respondent/accused Abid Hussain were dishonoured by the concerned Bank. Thereafter appellant/ complainant Fahim Ahmed went to Police Station for registration of the F.I.Rs. In cross-examination, he had agreed that appellant/complainant Fahim Ahmed is his friend and knows to him since childhood. He further agreed that he visited police station only once after registration of the F.I.Rs. He denied the suggestion that respondent/accused Abid Hussain had neither purchased shops nor issued cheques and he also denied that he has deposed falsely on the instance of the appellant/ complainant Fahim Ahmed. He has further contended that P.W.3 Allah Dad Niazi Manager ABL (Exh.6) also deposed before the Court that on 12-3-2006 he was working as Manager, Allied Bank Limited, Keamari Branch Karachi. On that date two Cheques for Rs.240,000 and Rs.3,50,000 were presented by appellant/complainant Fahim Ahmed for encashment from Account No.5559-5. The same were verified but there was no balance in the said account. Likewise, Cheque No.028270 for Rs.50,000 was also presented by appellant/complainant Fahim Ahmed on 28-6-2006, but the same was also bounced/dishonoured due to insufficient funds. In the cross-examination, this witness/Bank Manager deposed that it is incorrect to suggest that no any application was received from the respondent/accused Abid Hussain for not entertaining the account. Finally, Investigating Officer of the case, P.W.4 I/O of the case Inspector Saifullah Niazi, (Ex.7) was examined. Thereafter, prosecution side was closed. According to the learned counsel for the appellant/complainant Fahim Ahmed, all witnesses have supported him and there is no dent in the prosecution evidence. Statement of the respondent/ accused Abid Hussain was recorded, as discussed above, examined himself on Oath and examined two DWs and their evidence was already discussed above. Learned counsel for the respondent/accused Abid Hussain has contended that he pleaded his innocence and claimed that false case has been initiated against him. The Cheques in question were forcibly taken under the threat of life and he was not willing to issue and as such he had submitted an application regarding the above act of the appellant/complainant Fahim Ahmed prior to the incident. The respondent/accused Abid Hussain further stated that since the property in question is owned by him, the appellant/complainant Fahim Ahmed by such act want to claim the property from him. The respondent/accused Abid Hussain pleaded his innocence and examined himself on Oath and repeated the same version as stated above. He further stated that the appellant/complainant Fahim Ahmed belongs to a Land Mafia Group and had illegally occupied one Plot and two Shops and so also his brother Nadeem Balouch. They are engaged in Ghunda Gardi and show of force and due to their highhandedness grabbed Rs.11,00,000 from his tenants and further reiterated that he and his family are the owners of the said property, appellant/complainant Fahim Ahmed in order to grab above money has also filed this false case. The respondent/ accused Abid Hussain further contended that the appellant/complainant Fahim Ahmed forcibly obtained these cheques from him with his signatures. He further stated that he informed the said act of the appellant/complainant Fahim Ahmed to the police and the concerned Bank officials. In the cross-examination, he stated that since no action was taken by police on his application, he did not approach Higher Authorities. He denied the suggestion that he moved application against the complainant party to save his skin from these cases. He admitted that previously he was Police Constable in Police Department. The respondent/accused Abid Hussain also examined Alam Zaib and Muhammad Ali as Defence Witnesses. DW-2 Alam Zaib testified that he was tutor of the uncle of the respondent/accused Abid Hussain. On 16-10-2005 at about 10-00 a.m., he went to the house of the respondent/accused Abid Hussain where appellant/complainant Fahim Ahmed, Nadeem Balouch along with three other unknown persons duly armed with TT Pistols were present and they asked respondent/accused Abid Hussain to hand over the cheques and electricity bills. He came between them and advised them to settle their dispute amicably, but they kicked him out thereafter he went to the uncle of the respondent/accused Abid Hussain and apprised him the facts as above. In the cross-examination to the prosecution, this Defence Witness admitted that the complainant side obtained signatures on the cheques in his presence. He also admitted that he went along with the respondent/accused Abid Hussain to police station to submit an application. He denied the suggestion of the Prosecution that he was not the tutor of the children of the accused side. In support of his case, respondent/accused Abid Hussain has examined DW Muhammad Ali testified that on 16-10-2005 at about 10-45 a.m., he was taking Tea in a Hotel situated at Sultan Center, Keamari, Karachi. At that time he saw appellant/complainant Fahim Ahmed, Nadeem Balouch and three unknown persons duly armed and then few minutes he heard hue and cries from Sultan Center, Keamari, Karachi. He went there where respondent/accused Abid Hussain and Alam Zeb were present in disturbed condition and on enquiry, they narrated that the complainant Party has snatched the cheques from him on gunpoint. In the cross-examination to the Prosecution, he stated that both the Parties were known to him since childhood. He denied the suggestion that he had deposed falsely in favour of the respondent/accused Abid Hussain due to friendship. Learned counsel for the respondent/accused Abid Hussain has mainly argued that ingredients of section 489-F, P.P.C. are not made out. The cheques were taken forcibly on gunpoint. All the witnesses have not fully supported the prosecution case. The specific signatures were not taken by the Investigating Officer of the case for comparison. On the other hand, Ms. Seema Zaidi learned A.P.-G. did not support this Criminal Acquittal Appeal and has stated that the judgments passed by the trial Court are just and proper after appreciating the evidence in accordance with law. Heard the learned counsel for the Parties and perused the entire material available on record with their assistance. After hearing the Parties at length and perused the entire evidence adduced, during the trial. Both the Parties are, no doubt, residing in the same locality but their relationships are bitter over the property issue. The cases are pending between them. Their relationships are so strained to the extent of levelling allegations of land grabbing, but strangely no such case was brought on record. In the present case, the respondent/accused Abid Hussain disclosing that he issued cheques but on gunpoint. From reading of the evidence, it is evident that right from beginning, the Parties were not sincere to fulfil their obligations, short lived gestures were shown. Evidence brought is shaky and untrustworthy. The independent witnesses were not examined by police. Scope of interference in an appeal against acquittal as compared to appeal against conviction, is somewhat limited. High Court may interfere in the judgment of the acquittal when it comes to the conclusion that the trial Court has disregarded the material evidence or misread the evidence or received evidence illegally or the judgment is against any provision of law. The above dictum is laid down in the case reported in 1989 PCr.LJ 1005 (The State v. Nayar Mirza). In another case reported in 1989 PCr.LJ 1179 (The State v. Sikander Hayat), wherein it has been held that acquittal order passed by the Court below is not to be disturbed until and unless it is shown to be perverse or manifestly wrong and has resulted in miscarriage of justice. In the case reported in 2012 MLD 1321 (Muhammad Gulzar v. the Adalat Hussain), wherein it has been held that appeal against acquittal-Principles Presumption of innocence - Presumption of innocence is attached with the accused after acquittal. It may be observed that interference by this Court in the acquittal judgment passed by the trial Court is unwarranted unless the acquittal is arbitrary, capricious, fanciful and against the record. Appraisal of evidence in an appeal against conviction is done strictly, but in an appeal against acquittal the same rigid method is not to be applied. Interference by this Court may be made only where there is gross misreading of evidence amounting to miscarriage of justice. It is well-settled principle of law that acquittal of an accused cannot be set aside lightly in absence of any strong evidence. Finding of acquittal not sacrosanct, if reasons are of speculative or artificial in nature or based on no evidence or misrepresentation of evidence or the conclusion drawn as to guilt or innocence perverse resulting into miscarriage of justice, this Court can interfere in the finding of acquittal. In the above circumstances, as placed hereinabove and the various dictum of the honourable Superior Court taken into consideration, I am of the opinion that the appellant has failed to prove his case beyond the shadow of doubt. Consequently, both the Criminal Acquittal Appeals are dismissed. MWA/F-26/K Appeal dismissed.