MATIULLAH vs ISHAQ HAMAD and another

ORDER

' QAISER RASHID KHAN, J.---Being aggrieved of the judgment dated 7-4-2011 of the learned Additional Sessions Judge-IV, D.i.Khan vide which he acquitted the accused/respondent in case F.I.R. No,268 dated 4-7-2011 registered under section 489-F, P.P.C. At Police Station City, D.I., Khan, the appellant has filed the instant appeal under section 417(2-A), Cr.P.0

2. Brief and essential facts leading to the instant appeal are that through an application dated 14- 11-2002, the appellant reported that he had advanced an amount of Rs,4,00,000 as loan to the accused/ respondent and the latter promised to repay the same on demand. On repeated demands of the appellant, the accused/respondent 3.After completion of usual investigation, complete challan against the accused/respondent was submitted in the learned trial Court where he was formally charged to which he did not plead guilty andclaimedtrial.Inordertoestablishthe guilt of the accused/respondent, the prosecution examined five witnesses. Thereafter, the statement of the accused/ respondent was recorded under section 342, Cr.P.C. wherein he professed innocence and false implication. However, he neither appeared as his own witness on oath as required under section 340(2), Cr.P.C. nor produced any evidence in his defence. After hearing the arguments, the learned Judicial Magistrate-I, D.I.Khan vide judgment dated 23-2-2010 convicted and sentenced the accused/respondent. However, on appeal filed by the accused/respondent, the learned Additional Sessions Judge-V, D.I.Khan vide judgment dated 20-4-2010 remanded the case for recording statement of the accused/respondent in presence of his counsel and for decision afresh.

4. After remand of the case, the accused/respoprient was again examined under section 342, Cr.P.C. He also recorded his statement on Oath and produced three D.Ws as w911. _,On evaluating the evidence brought on record and hearing the arguments of learned counsel for the parties, the learned Senior Civil Judge, b. I.Khan vide'ltdgment dated 4-7-2011 law.,ppnvieted the laccugid/respondent 'under section 489-F, P.P.C. And sentenciect iiikka to ten months' R.I. dtr 5.: DISsittiSfreci)otlittb: thebijildgMent dated 44-204-1, : W-Eactilkediresikirident piefitredian4Ppeallitihichivkitt accepted by the -learned AdditiOnal SetiioritzlIndge-IV, D.I.Klittli on 7- 4-2012iii the ' iniptigned jUdgitelltidated 4-7-2014 Was set aside' and =MO theAectivid/respondetitilWAVadtitiittddiffrom 8ifiejerharges levelled agikiitittlirg *nee the IfIstatit appeal, tyy theiapoitalit. Fli j(1011 yip 6. The Jearoed -counsel for the appellant argued that the issuance of,cheque by the accused/respondent and thcsame being dishonoured by the bank was proved on record but the learned appellate :court failed to consider this aspect of theicase and erred in acquinjug thea;cused/respondent.

7. I have considered e arguments of learned counsel for the Rptejlant and carefully perused the recOid..

JUL:

8. To establigh-) the guilt of the accused/resportdelitlk'r. The prosecution examined flirdn'PlWi; A brief resurne of prosecution evidittie ia under:-- 9c11 zbn,

9. P.W.1 is Ilk- statement of Asmatullah Khan Inspegtor who submitted complete challao4 t case.

Samiullah, officer of dig Bank' ofchyber appeared as P.W.2 apsi,,,st4ted 1,01qt the accused/ respondeikt.Af.Ssultoldeklocceunt in their bank who ipaui4; a chequenamounting to Rs,4,00,000 complainant which was dishonourerd,ignalkAl72002,A).W.3 ;is the statementlof sopaAan)Asiote.Ho formally arrested the accusediresp_midenti Matiullah, complainant appeared PJW.4 and reiterated the storyinarrated by him in his initial;:application,:ip.Vv.5 is the statement of laved Ahmad Chughtai who conducted inquiry in the matter under section. 156(3), Cr.P.C.i4;151 on but nfbaoqze.1,12:. gni* ' lj 10. As stated earlier, me accused/ {{PAGE BLUR}} ' respondent recorded his statement on oath under section 340(2), Cr.P.C. And stated that, "I had no relationship with Matiullah, the complainant, and I have never obtained loan from him. I can take oath on Holy Quran in this respect." He further stated that, "the Cheque in question is bogus one as the alleged cheque bearing No,392358 is fictitious one because other cheques of the same series cheque book were issued in the year 1997 and to that effect the statement of Bank Official is very much relevant." The statement of account Exh.D.W.3/1 spilled the beans as far as the alleged dishonoured Cheque bearing No,392358 dated 13-11-2002 is concerned. The cheque book was issued to the accused/respondent back in the year 1997 and whereas the Cheques bearing Nos.392356 and 392357 were encashed as far as back as on 28-10-1997 and Cheque No,392360 was encashed on 1-11-1997, it is beyond comprehension as to how the Cheque No,392358 from the cheque book of the year 1997 stealthily found its way into the hands of the complainant, filled in for an amount of Rs,4,00,000 dated as 13-11-2002 and then presented at the counter of the Bank of Khyber for encashment. All this fiction has been created with a bit of a degree of finesse to rope in the accused/respondent but it failed to materialize in view of Exh.D.W.3/1. Keeping in view the statements of P.Ws. And the accused/respondent recorded under section 340(2) Cr.P.C. In juxtaposition, the statement of accused/respondent appears to be more convincing and plausible.

He also examined two D.Ws who remained his employees during the days when he was running the business of medicines. Both the D.Ws categorically stated that the accused/respondent had no relationship with the complainant/appellant. Thus the learned trial Judge reached to a correct conclusion while acquitting the accused/respondent.

11. By now it is settled law that when an accused is acquitted by a competent court of law after facing the agonies and ordeal of a protracted trial, then he earns the presumption of double innocence which cannot be disturbed by the appellate Court unless it is established through cogent and tangible evidence available on record that such acquittal is fanciful, erroneous or has resulted into grave miscarriage of justice. Reliance in this respect may also advantageously be placed on the dicta handed down by the honourable Apex Court in 2004 SCM R 249, 2009 SCM R 288 and 2009 SCM R 946. The learned trial Judge while recording the order of acquittal has properly appraised and appreciated the evidence in its true perspective and the impugned judgment does not suffer from any misreading or non-reading of evidence calling for interference by this Court.

12. For the reasons mentioned above, the appeal in hand having no legs to stand upon is hereby dismissed in limine.