Muhammad Younus vs The State etc
This criminal revision petition challenges the conviction of the petitioner under Section 489-F of the Pakistan Penal Code 1860 for the dishonour of a cheque. The core legal question was whether criminal liability under Section 489-F could be sustained when the cheque was issued as part of a reciprocal obligation settlement where the complainant failed to fulfill their corresponding duty, and whether the conviction was procedurally sound given the failure to put incriminating evidence to the accused under Section 342 of the Code of Criminal Procedure 1898. The Court held that the cheque was part of an interdependent arrangement where the complainant’s failure to transfer a motorbike negated the accused's criminal liability. Furthermore, the Court ruled that the failure to produce the original cheque and memo, and the failure to put these documents to the accused during his statement under Section 342 of the Code of Criminal Procedure 1898, rendered the evidence inadmissible. Consequently, the conviction was set aside, and the petitioner was acquitted. The principle established is that criminal liability for cheque dishonour cannot be fixed where obligations are interdependent and the complainant is in default, and evidence not put to an accused under Section 342 cannot be used against them.
- Can criminal liability under Section 489-F of the Pakistan Penal Code 1860 be established when the cheque was issued as part of an interdependent obligation that the complainant failed to fulfill?
- Is a conviction sustainable if the prosecution fails to put incriminating evidence, such as a dishonoured cheque and memo, to the accused during his statement under Section 342 of the Code of Criminal Procedure 1898?
- Does the failure to produce the original cheque and memo of dishonour in court render such documents inadmissible as evidence?
- Section 489-F, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
Farooq Haider, J:- Petitioner Muhammad Younus was tried in case arising out of F.I.R. No.268/2008 dated 08.08.2008 registered under Section 489-F, PPC at Police Station Faqirwali, District Bahawalnagar and vide judgment dated 29.11.2011, the learned trial court/Judl. Magistrate Ist Class, Haroonabad convicted and sentenced him as under:- Under Section 489-F PPC to undergo Imprisonment for a period of Three years alongwith fine of Rs.15,000/-; in case of default in payment of fine, he shall further undergo four month' s Simple Imprisonment.
Benefit of Section 382-B Cr .P.C was also extended to the petitioner .
Against the aforementioned conviction and sentence, petitioner filed Criminal Appeal but that was dismissed by the learned Additional Sessions Judge, Haroonabad/Appellate Court vide impugned judgment dated 26.01.2012 and resultantly conviction recorded and sentence awarded by learned trial Court were upheld.
2. Feeling aggrieved, petitioner has filed the instant Crl. Revision before this Court in which notice was issued to the complainant/respondent No.2; during pendency of instant criminal revision, sentence of the petitioner was suspended by this Court vide order dated 23.05.2012.
3. After hearing learned counsel for the petitioner , learned Law Officer and going through the record with their able assistance, it has been observed that the impugned-cheque was pertaining to the obligation, which arose vide decision of Panchayat and said decision has been brought on record by the accused as Ex. DB; perus al of the same reveals that on the one hand petiti oner/accused was burdened with the liability with respect to this cheque and its encashment on a specific date i.e. 15.11.2017, whereas in the same decision of Panchayat at its Paragraph No. 6, it has been clearly mentioned that complainant shall also handover transfer letter of motorbike to the accused/petitioner till the same date i.e. 15.11.2007, which scenario reflects that there were two obligations; one was upon the accused/ petitioner while other was upon the complainant, these both arose at one and the same time, from one and the same document and ought to be fulfilled on or till one and the same date i.e. 15.11.2007; these both obligations were not independent of each other and when complainant has not himself fulfilled said obligation i.e. he has not given transfer letter of the said motorbike to the accused, then, non-fulfilment of financial obligation imposed upon the accused/petitioner for making arrangements of sufficient funds for payment of the cheque, was also not imposing any criminal liability upon him for the purpose of invoking provision of Section 489-F PPC; so much so, accused/ petitioner even in his statement under Section 342 Cr.P.C. while answering to question No. 5 has categorically stated that he is ready to pay the said amount if transfer letter of the motorbike is given to him. In this regard Question No. 5 along with its Answer is being reproduced for ready reference: - "Q. No. 5. Why this case has been registered against you?
Ans. The complainant in connivance with the local police has lodged this false and frivolous case against me.
In fact, I and complainant jointly purchased Mazda vehicle No. 1139/LZR, which remained in the possession of complainant. I paid all instalments to real owner. Secondly, I gave Rs.50,000/- to complainant to purchase Motorcycle Yamaha, I wanted to give it to my daughter on her marriage. Further I gave Rs.1500/- to the complainant for documents/ registration of motorcycle. Complainant purchased motorcycle from Salman Traders Haroonabad on instalments, while he got recovered whole amount from me. On above said issue, a dispute arose between us. A punchaiyat was organized. Both of us agreed upon arbitration decision and arbitration deed was drafted, according to which amount of Rs.237,000/- was declared against me, out of which I paid Rs.50,500/- at spot to complainant and I gave cheque for payment of remaining amount to complainant. On the other hand, liability was fixed upon complainant by arbitrators that he will give documents of motorcycle to me, after giving whole money to Salman Traders Haroonabad. Now I am also ready to pay money mentioned in cheque, if complainant return me amount of motorcycle or give me documents of motorcycle. I have instituted suit for recovery of amount Rs.60,000/- regarding the motorcycle, which is still pending. I produced original arbitration deed as Exh.DB and certified copy of suit for recovery as Exh.D.C I have not issued cheque to him dishonestly or fraudulently."
Furthermore, when Investigating Officer was cross-examined in this regard, he admitted that fact of motorbike was mentioned in the said decision of Panchayat, however, he stated that he has not further investigated the said fact, which itself speaks about mala fide intention on his part. Nutshell is that in peculiar facts and circumstances mentioned above, no criminal liability with respect to Section 489-F PPC, can be fixed upon accused/petitioner.
After perusal of record it has also been noticed that neither impugned-cheque nor memo of slip was got exhibited/produced before the Court in original, so much so, their copies were even not got compared before trial court by the prosecution with original in order to give them any name of exhibited documents for their admissibility in evidence; furthermore, if on the one hand said documents i.e. cheque and memo of slips have not been proved according to law, on the other hand it is also very alarming situation that both the said documents i.e. cheque and memo of dishonouring the same, have not been put to the accused/petitioner under Section 342 Cr.P.C., hence, same cannot be used against him otherwise it would amount to "audi alteram partem" and guidance in this regard has been sought from the dictum laid down in the case of "Ameer Zeb versus The State" reported in (PLD 2012 Supreme Court 380), relevant portion available at Page No. 398 in Paragraph No. 6, is hereby being reproduced for ready reference: - "It is trite that a piece of evidence not put to the accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be used against him by the prosecution."(emphasis added)
In this regard case of "Muhammad Saddique versus The State" reported in (2018 SCMR 71), "Nadeem alias Kala versus The State and others reported in (2018 SCMR 153) and "Imtiaz alias Taj versus The State and others" reported in ( 2018 SCMR 344 ) can also be referred advantageously .
4. In view of what has been discussed above, prosecution has been failed to prove its case against the petitioner and both the learned courts below have not taken into consideration aforementioned important aspect of the case. Consequently, Crl. Revision No. 25 of 2012, is accepted, conviction and sentence (mentioned above) awarded to the petitioner Muhammad Younas by the learned trial court/Judl. Magistrate Ist Class, Haroonabad vide judgment dated 29.11.2011 and upheld by learned Additional Sessions Judge, Haroonabad/Appellate Court vide impugned judgment dated 26.01.2012, are set-aside. Petitioner is acquitted of the charge; he is on bail after suspension of his sentence, therefore, his bail bonds are cancelled and surety is discharged from his liability.