Syed KHALID YASEEN Versus Syed ABSAR AHMED

IRFAN SAADAT KHAN, J.--- This Criminal Acquittal Appeal has been filed against the order dated 6.1.2014 passed by Vth Judicial Magistrate, Karachi East in Cr. Case No.114/2010 registered vide FIR No.336/2010 under sections 420, 468, 471 and 34, P.P.C. at Police Station Shahra-e- Faisal, Karachi, whereby the respondent was acquitted by the Judicial Magistrate by exercising his powers under section 249-A, Cr.P.C.

2. Briefly stated the facts of the case as per the FIR are that appellant is an electrician by profession and stated that he has given Rs.11,50,000/- to Absar Ahmed, Khalid Ahmed and Saqib for sending his two friends, namely, Yasir and Zahoor Ahmed to U.K. and for promotion of his other friend Farooq, who was working as clerk in Commissioner Office Rawalpindi in presence of Baqir Shafi. It has further been mentioned that Absar and Khalid posed themselves as Officers of FIA whereas Saqib introduced himself as Secretary of Mr. Zardari. It has further been mentioned that these persons assured the appellant that their work would be done. Thereafter the appellant went back to Rawalpindi. After two months, he contacted Absar Ahmed that till today he has not done the work. Absar Ahmed and Khalid then asked the appellant to come to Karachi and thereafter gave him a photocopy of a letter of Revenue Department, Government of Punjab and a photocopy of visa. When the appellant verified those letters, the same turned out to be fake. The appellant then demanded the money back from Absar, on which, he and Khalid gave him three cheques. Two cheques were that of Hyderabad whereas one cheque pertained to a bank having its branch in Gulistan-e--Johar. When the appellant went to the respective branches to encash the said cheques he was informed that no amounts were available in those accounts, for which as per the appellant he will initiate separate proceedings. The instant FIR however was lodged against Absar Ahmed, Khalid Ahmed and Saqib for playing fraud and usurping Rs.11,50,000/-, handing over fake documents and pretending themselves as Government servants. After lodging of FIR necessary proceedings were initiated against the respondent.

3. Thereafter the matter proceeded before the IVth Civil Judge and Judicial Magistrate Karachi East in Cr. Case No.114/2014. Charge thereafter was framed on the respondent on 20.5.2011 under sections 468, 471 along with 420, P.P.C. to which the respondent pleaded not guilty and claimed for trial. Thereafter trial was conducted, witnesses were produced and examined and their depositions were recorded. The respondent then filed an application under section 249-A, Cr.P.C. on 25.09.2013 for seeking acquittal from the charges leveled against him. Notice thereafter was issued to the appellant and the matter proceeded before the learned Judge. Parties led their evidences and thereafter the learned Judge vide order dated 06.01.2014, after finding that the respondent is entitled to be acquitted under section 249-A, Cr.P.C., allowed the said application, acquitted the respondent, cancelled his bond and discharged the surety. It is against this order that the present Acquittal Appeal has been filed.

4. Appellant Syed Khalid Yaseen is present and submitted that though the respondent is his real nephew but has deprived him from Rs.11,50,000/- given to him for doing the specified jobs. He stated that the respondent not only presented himself as a FIA Director but also handed over him fake documents, hence according to him the respondent was not entitled for acquittal as he has cheated and played fraud with him hence the order of the Judicial Magistrate may be set aside. He submitted that admittedly documents furnished by the respondent were found to be fake and forged. He further submitted that when the respondent was arrested by the police, his brother-in-law Rashid Anwar handed over a cheque of Rs.5,50,000 to the I.O. which was never given to the appellant. He further submitted that on the cheques issued by the respondent there are overwriting, which aspect was not considered by the Judicial Magistrate. He further submitted that the learned Magistrate has also not considered the statements given by the witnesses before him. He further submitted that though there were certain minor contradictions in his deposition but since these are minor, hence the Judicial Magistrate should have ignored them. He further submitted that he is a poor person and the respondent has deprived him of a huge amount, which belongs to his friends. He further submitted that the Judicial Magistrate has not considered the statement of Baqar Shafi in whose presence the amount was given to the accused/respondent, Khalid Ahmed and Saqib. He in the end submitted that the respondent belongs to a group engaged in criminal activities. He finally stated that the respondent does not deserve any leniency; hence the acquittal order passed by the Judicial Magistrate may be set aside.

5. Mr. Abdullah A.P.G has appeared on behalf of the State and stated that the order passed by the Judicial Magistrate does not suffer from legal infirmity and the learned Magistrate has passed the order after recording of evidences of various P.Ws and after noting inconsistencies and contradictions, not only with regard to the deposition of the appellant but that of other witnesses also. He stated that in acquittal proceedings presumption of double innocence is involved. He then read out the order of the Judicial Magistrate as well as the depositions of the various P.Ws including that of appellant to show material contradictions in those depositions and thereafter, submitted that this Cr. Acquittal appeal is bereft of any merit hence the same may be dismissed.

6. Syed Zulfiqar Haider Shah, Advocate has appeared on behalf of the respondent along with respondent and has stated that a false and concocted FIR was registered against the respondent by the appellant, who is the real maternal uncle of the said respondent. He submitted that the appellant is suffering from mental disease and stated that an application in this regard was also filed before the Judicial Magistrate which was kept on record. He submitted that since there was no occasion of convicting the respondent hence an application under section 249-A, Cr.P.C. was furnished by the respondent before the Judicial Magistrate, who after giving ample opportunity of hearing to the appellant not only found the charge to be groundless but also found that there was no probability of the accused to be convicted in the instant FIR. The learned counsel invited my attention to the depositions of the P.Ws and the appellant and submitted that all these facts were duly considered and examined by the Judicial Magistrate and only thereafter through an elaborate and an exhaustive order, the respondent was acquitted by the Judicial Magistrate. He, therefore, submitted that this Cr. Acquittal Appeal is without any merit and the same may be dismissed accordingly.

7. I have heard the appellant, A.P.G and the counsel for the respondent at length and have also perused the record.

8. It is seen from the judgment/order of Judicial Magistrate/trial Court that while acquitting the Respondent No.1 he not only noted material contradictions creating reasonable doubts in the version of the appellant but also in the depositions of various witnesses. In the examination-in- chief of the appellant it is seen that as per Ground No.23 the appellant has stated that Syed Absar Ahmed group is a habitual criminal and is involved in criminal activities, whereas in the examination-in-chief he has categorically mentioned that he is not aware that he is a habitual criminal. In the FIR he has mentioned that he has given two passports for UK Visas to the Respondent No.1, whereas in the examination-in-chief he has mentioned that he has given three passports for employment immigration in U.K. He has further stated that Rashid Anwar, brother-in-law of Respondent No.1, gave him cheque of Rs.5,50,000/- which was kept by the I.O. but in the deposition of Rashid Anwar he has stated that the said cheque was given to the appellant as a family settlement. It is further observed from the deposition of the appellant that he has stated that the Respondent No.1 has impersonated himself as Director in FIA whereas in the deposition has stated that as per his knowledge the respondent/accused is working in Dadex Company.

9. The appellant has also admitted that he has no documentary evidence in his possession that the Respondent No.1 was working as an Immigrant Agent. He has further stated that he has given the amount for and on behalf of Yasir, however it is strange to note that Yasir never appeared before the Court to verify the statement given by the appellant. He has also admitted that the three persons whose passports were given to the Respondent No.1 were not shown even as witnesses in the charge sheet. He has also admitted that he has not mentioned in his statement recorded under section 161, Cr.P.C. that respondent/accused promised to send Khalid and Yaseen to London as their names are not appearing in the said statement. It is also mentioned by the appellant that Respondent No.1 has issued him five fake cheques but has stated that for such act he will initiate separate proceedings against the respondent/ accused. The appellant has also stated that his statement recorded under section 161, Cr.P.C. to the extent that the cheques given to him by the respondent pertaining to Hyderabad was incorrect. He has also admitted that some alterations were made in the cheques handed over to him and the ink used in those alteration are of some other pen, which also create doubt so far as deposition with regard to the alleged cheques are concerned. He has further admitted that the cheques were not presented to the banks by him. He has also admitted that out of five cheques only three were in his name. He has also admitted that one of the cheque was not issued from the account of respondent and was not even in his name. He also does not remember the date on which the cheques, which were in his name, were presented to the bank.

10. The appellant has also admitted that he had filed Civil Suit against the respondent but the same was returned due to the non-payment of Court Fee in which the amount demanded for recovery against the respondent was Rs.10,50,000/-, whereas in the FIR he has alleged that the respondent has played fraud with him to the extent of Rs.11,50,000/-. He has also admitted that he had sent a legal notice to the respondent but what was written in the legal notice is not known to him. He has also admitted that he has not produced any document showing that respondent/accused has given him cheques and handed over passports to him. The appellant stated in his statement under section 161, Cr.P.C. that the amount was paid in presence of Baqar Shafi whereas in the examination-in-chief he has not stated that Baqar Shafi was present at the time of handing over the alleged amount to the respondent.

11. The deposition of Syed Rashid Anwar, who is brother-in-law of the respondents, reveals that cheque given by him for Rs.5,50,000/- to the appellant was with regard to some family settlement which took place between the appellant and his mother-in-law, who is the real sister of the appellant.

12. The deposition of Baqar Shafi reveals that he was informed on telephone by the respondent/accused that he is a Director in FIA and could arrange visa for him from U.K. Embassy. He stated that even the appellant had confirmed that respondent/accused is a Director in FIA. He has also admitted that before the aforesaid deal he did not know about the work of the appellant and he came to Karachi along with him in 2009 and went to the house of the respondent for paying Rs.11,50,000/- for obtaining the visas and getting the promotion of Farooq Muhammad. He has further stated that though the amount of Rs.11,50,000/- was paid in respect of Yasir Shafi, Zahoor Ahmed and Farooq Muhammad, however he did not know Farooq Muhammad and Zahoor Ahmed. He further admitted that though in his 161, Cr.P.C. statement he has named Khalid Ahmed and Saqib Ahmed but he did not know them. He has further admitted that he could not produce any receipt with regard to the payment of amount to the respondent. He has further admitted that he has not produced original documents before the trial Court. He has further admitted that it is only on the persuasion of the appellant that he has come to the Court for recording of his evidence.

13. From the above depositions in my view there are enough evidences to create a reasonable doubt in a prudent mind with regard to the allegations leveled by the appellant against the Respondent No.1. Section 249-A, Cr.P.C. was introduced in the year 1977 with the sole object to acquit the accused by way of speedy trial if the charge against the accused is found to be groundless and there is no probability of the accused being convicted. The said provision of law is an enabling provision which is an exception to a normal trial usually adopted by the Courts and the Court while dealing with the application under section 249-A, Cr.P.C. instead of a full trial acquits the accused after hearing the parties and considering the material produced before it in a speedy manner if the said Court finds that the charge is groundless and prosecution is not likely to succeed in bringing home guilt against the accused person. The basic idea is to safeguard the accused from the agony of a full trial that if the Court at any stage upon an application filed by the accused finds the charge to be groundless and that there is no probability of accused to be convicted can acquit him under the said provision of the law.

14. It is settled principle of law that while giving benefit of doubt to any person/accused there is no need of bundle of evidences for that purpose even a single reasonable doubt appealing to a prudent mind is sufficient to put a dent in the prosecution case. Section 249-A, Cr.P.C., in fact, is a speedy remedy provided to an accused in the case of a groundless charge or in the case when there is no probability of conviction. It is seen from the depositions of the appellant as well as other witnesses that a number of contradictions and improvements and it is only thereafter that the respondent/accused was acquitted. It was further observed by the trial Court that during evidence the appellant has failed to produce a single document and from the deposition of any witness it has surfaced that the appellant has paid Rs.11,50,000/- to the respondent/accused. The trial Court has also recorded a number of contradictions in its detailed judgment and the appellant before me also had remained unable to dislodge the contradictions recorded by the trial Court/Judicial Magistrate while arguing the present acquittal appeal and has simply reiterated that since he was deprived of Rs.11,50,000/- which belonged to his friends hence the respondent was illegally acquitted. I have noted that the appellant has failed to point out any misreading or non-reading with regard to the deposition of the appellant or other witnesses by the Judicial Magistrate.

15. I, therefore, in view of what has been observed above have come to the conclusion that since the appellant has failed to point any illegality in the judgment of the learned trial Court, this criminal acquittal appeal is not maintainable, firstly, on the ground that there are number of contradictions, anomalies, improvements, etc. in the deposition of the appellant as well as Baqar Shafi, moreover, in acquittal matters presumption of double innocence is always to be considered. This criminal acquittal appeal thus is found to be bereft of any merit and is accordingly dismissed.

JK/K-26/Sindh Appeal dismissed.