SIRAJ AHMED vs The STATE and another

ORDER

SHAHID HAMEED DAR, J.---The appellant by filing this appeal under section 417(2A), Cr.P.C. has challenged vires of the judgment, dated 15.3.2010, whereby learned judicial Magistrate Section-30, Faisalabad acquitted Amjad Ishaque (respondent No.2) of the charge on conclusion of his trial in case-FIR No.876/2005, dated 2.11.2005, under sections 420, 468, 471, P.P.C., registered at police station Peoples Colony Faisalabad.

2. Precisely, Siraj Ahmad (appellant/complainant) has alleged in FIR No.876/2005 (supra/Exh.PA/1) that his wife Mst. Azra Siraj purchased a Toyota Jeep/Station Wagon Hi-Lux Model 1989, chassis No. YN61-G000381, Engine No.21-1672623, from Amjad Ishaque for Rs.9,50,000/- in year 2000, courtesy Muhammad Akhtar, his servant; he sold this vehicle on the will of his wife to Muhammad Shahid PW (not produced) on 24.1.2004; unluckily, this vehicle was seized by Anti-Smuggling Staff, Collectorate of Customs, Multan on 14.3.2004, through a memo of recovery by mentioning therein that alphabetically the chassis code YN61-G actually pertained to a Toyota Hi-Lux Pick-Up (petrol) and it was a smuggled vehicle, fitted with a cut and welded chassis frame; the memo/report of recovery is dated 3.5.2004; obviously, Amjad Ishaque (respondent No.2) had fraudulently sold a smuggled vehicle to his wife; on knowing this fact, he (complainant) along with some respectable approached Amjad Ishaque, but he refused to see him, whereafter they all went to his brother Muhammad Shahid, who promised to refund the consideration amount or provide him another vehicle, but he and his brother flatly refused to compensate them by saying that it was how they used to do their business; in the meanwhile, Muhammad Shahid, the intervening buyer demanded his money back from him or another vehicle in lieu thereof, whereon he bought another vehicle 2- D, but in the name of his son Ammar Ahmad, for Rs.9,99,000/- in collaboration with Union Leasing Ltd. and gave it to Muhammad Shahid; he was regularly paying its instalments to the said leasing company. The respondent after his full-fledged trial earned acquittal through the impugned judgment. Hence, the instant appeal.

3. On completion of investigation, a report under section 173, Cr.P.C. was submitted before the learned trial court for trial of the acquitted respondent, who pleaded not guilty and claimed a trial, when indicted. The prosecution produced four witnesses during trial to prove the charge framed and closed its case on 17.2.2010. In his statement under section 342, Cr.P.C., the respondent refuted all the incriminating circumstances, put to him and professed his absolute innocence. He opted not to appear under section 340(2), Cr.P.C. nor he adduced any evidence in his defence. Learned trial court, on conclusion of the trial, acquitted him of the charge through the impugned judgment.

4. After hearing the learned counsel for the parties and perusing the record, it is observed that the learned trial court (Magistrate Section 30, Faisalabad) found it a case of no evidence and acquitted Amjad Ishaque (respondent No.2) of the charge through the impugned judgment by holding in paragraph 13 thereof, "that the vehicle in question was purchased by the complainant's wife who has not been produced in the witness box. The prosecution has also not produced any witness in whose presence, the accused promised to compensate the complainant. There is also no evidence to establish that the accused knowingly and with the intention to cheat the complainant sold the vehicle in question. The prosecution has also failed to prove that the vehicle's chassis or its documents were tampered and forged by the accused. As such, there is no evidence to prove the offence of cheating, forgery and knowingly use of forged documents as genuine. The prosecution, therefore, fails to prove the charge against the accused under sections 420, 468, 471, P.P. C. beyond any shadow of doubt." The complainant (P.W.1) rendered self- contradictory statement by deposing that he had purchased the vehicle in issue from the accused in year 2000 and in the same breath he added that "we purchased the said vehicle from Akhtar, who was our servant and a Mamonzad of the accused". In answer to a question, he said that the vehicle was registered in the name of his wife and it was the accused, who transferred it to her. It only meant that the said vehicle had been purchased by the complainant's wife, as is mentioned in the FIR (Exh.PA/1), wherein he categorically stated that his wife had purchased Toyota Jeep/Station Wagon from the respondent-accused for Rs.9,50,000/- in year 2000. This lady did not appear at trial nor she was cited as prosecution witness in the challan. Muhammad Akhtar, who played a role in the sale of the said vehicle, was also not produced as a witness by the prosecution, despite the fact that he was the servant of the complainant then. Muhammad Shahid PW was given up by the prosecution being unnecessary. This vehicle remained under the complainant's use for about four years, but he could not know if its engine number or chassis number had been tampered with by anyone. He, however, admitted it as correct that he had not seen the accused tampering with the said vehicle. He produced no one in support of his claim that the acquitted respondent or his brother had promised to compensate him either by refunding the cost thereof or providing him with a new vehicle. Ashiq Ali (P.W.2) is a formal witness, who attested a memo of recovery (Exh.PB) qua recovery of registration book, transfer letter, national identity card and a lease report, handed over by the complainant to the investigating officer. Yousaf Ali, retired SI (P.W.4) is the investigating officer, who prepared visual site-plan (Exh.PC), recorded statements of witnesses under section 161, Cr.P.C., prepared incomplete challan under section 512, Cr.P.C. against the accused on 18.3.2006; he arrested Amjad Ishaque (respondent No.2) on 1.8.2006 and sent him to judicial lock up as under trial prisoner. He categorically stated in his testimony that the accused did not toy with the vehicle- inissue and he sold it to the complainant in the same condition, as he had purchased it. He looked more of a defence witness rather than a prosecution witness.

5. Learned trial court has impeccably appraised the prosecution evidence and drawn unexceptionable inferences to record acquittal of respondent Amjad Ishaque. No other view is possible from the prosecution evidence as drawn by the learned trial court. The most important person, Mst. Azra Siraj, who was the buyer of the doctored vehicle, was held back, which virtually broke back of the prosecution case. The offences of cheating, fraud/forgery and knowingly using forged documents as genuine could not be established against the acquitted respondent by the prosecution during trial. His acquittal was written on the wall and it was rightly so read by the learned trial court. There exists no material whatsoever, whereby the impugned judgment may be interfered with. The acquitted respondent has been doubly rendered safe through the judicial verdict, recorded by the learned trial court, after he enjoyed the earlier one, that every accused is innocent till proved otherwise. Not a fit case worth issuing a notice to the acquitted respondent.

Dismissed in limine.