ABDUL MAJEED Versus State

ABDUL MAALIK GADDI, J .---Through this criminal acquittal appeal, the appellant has assailed the legality and propriety of the Order dated 14.03.2015 passed by the learned XIth Civil Judge and Judicial Magistrate, Karachi (Central) in Criminal Case No.237 of 2012 (re: The State v. Rehmatullah and another), emanating from Crime No.05 of 2012 registered at police station North Nazimabad, Karachi under sections 420/489-F, P.P.C., whereby the learned trial Court after hearing the parties, acquitted the respondents Nos.2 and 3 under section 249-A, Cr.P.C.

2. According to the prosecution case as unfolded in FIR that complainant Abdul Majeed recorded his statement under section 154, Cr.P.C., alleging therein that he is residing at address mentioned in FIR and running his own business of vehicles. In October 2010, he give Rs.5,800,000/- through pay order in the name of PSO to one Khalil Nagar son of Haroon Nagar. He was working as General Manager in Globe Petroleum situated at North Nazimabad, Karachi, for investment purpose and decided that he will return the same after fifteen days along with profit after completion of stipulated period of time, despite repeated demands he gave him a cheque of Rs.1,600,000/- and he did not refunded him Rs.4,200,000/- and for balance amount he issued four different cheques which were bounced. Out of that two cheques bearing No.54238301 A/C No.112577 of Rs.1,500,000/- and cheques No.54238301 A/C No.11257 of Rs.1,700,000/- drown on Habib Metropolitan Bank, North Nazimabad Branch, Karachi, issued by Muhammad Khalil Nagar, were bounced on 21.09.2011 on presentation before the concerned Banks due to insufficient balance in account of Khalil Nagar, on this act of Khalil Nagar, therefore, I contracted with Rehmatullah, Farhan son of Rehmatullah, Mst. Khadija wife of Muhammad Hussain for him, but they paid no heed to one another pretext, hence, complainant claim against accused persons, (1) Khalil Haroon Nagar, (2) Rehmatullah, (3) Farhan, (4) Mst. Khadija wife of Muhammad Hussain for cheating, fraud and dishonestly receiving above mentioned amount and refused to return.

3. It appears from the record that in this matter after investigation, charge sheet has been submitted against the accused/respondents No.2 and 3 under the above referred sections, while accused persons namely, Muhammad Khalil Nagar and Mst. Khadija challaned in their absentia under section 512, Cr.P.C. and they were declared as proclaimed offenders.

4. It appears from the record that trial Court framed the charge against the respondents Nos.2 and 3 at Ex.4, to which they pleaded not guilty and claimed to be tried.

5. At trial, prosecution had examined the following witnesses:-

(i) PW-1/complainant Abdul Majeed at Ex.5, who produced application, statement under section 154, Cr.P.C., HR, memo of site inspection, photo stat copy of four cheques, return memo and envelop at Ex.5/A to Ex.5/I;

(ii) PW-2 ASI Amir Azam author of FIR at Ex.6;

(iii) PW-3 Samiullah, Operation Manager at Ex.7, who produced bank letter;

(iv) PW-4 Investigating Officer, SIP Ikramuddin at Ex.8.

These witnesses were cross examined by the Counsel for respondents Nos.2 and 3.

6. It reveals from the record that after examination of the prosecution witnesses, Counsel for respondents Nos.2 and 3 filed application under section 249-A, Cr.P.C. before the trial Court, which was decided in favour of respondents Nos.2 and 3 as stated supra.

7. Mr. Muhammad Ikram Siddiqui, learned Counsel for the appellant contended that the order passed by the learned trial Court is perverse and the reasons are artificial, vis-a-vis the evidence on record; that the grounds on which the trial Court proceeded to acquit the private respondents are not supportable from evidence on record; that the learned trial Court has failed to take into consideration that the cheques were issued duly signed by Khalil Nagar and having seal/stamp of the accused persons firm and those were presented in the bank and dishonored, the trial Court even not discussed single word regarding dishonored cheques and affixed the seal of accused persons firm; that trial Court has also failed to consider that these admitted facts needs not to be proved as the above persons and other absconders are guilty of offence under sections 489-F/420/34, P.P.C.; that trial Court discarded the evidence of all the witnesses and not discussed properly as it was a fit case of conviction of the accused persons/respondents; that trial Court also failed to appreciate the interpretation of sections 489-F/420, P.P.C. and illegally acquit the accused persons/respondents Nos.2 and 3 and illegally given finding in their favour; that prosecution has successfully proved its case beyond any reasonable doubt as the appellant/ complainant and his witnesses have fully supported its case; that the respondents Nos.2 and 3 and absconding accused, who are in league to each other should be awarded exemplary punishment as they do not deserve any concession; that the said respondents have been directly charged and that discrepancies in the statements of witnesses are not so material on the basis of which respondents could be acquitted. Therefore, under these circumstances, he was of the view that this appeal may be allowed by setting aside the impugned order.

8. Mr. Zafar Ahmed Khan, learned Additional Prosecutor General, Sindh, assisted by Mr. Abdul Qayyum Abbasi, learned Counsel for respondents Nos.2 and 3, while supporting the impugned order, argued that the impugned order passed by the trial Court is perfect in law and on facts and the same is correct and proper. According to him, there is no misreading and non-reading of the evidence in the impugned order. He further submits that as per definition of section 489-F, P.P.C., no case against the respondents Nos.2 and 3 is made out as admittedly, respondents Nos. 2 and 3 have neither issued any cheque to the appellant/complainant, nor their signatures are appearing on the bounced/dishonored cheque and this fact according to him, is admitted by the appellant/complainant in his evidence.

9. I have given my anxious thoughts to the contentions raised at the bar and after going through the documents, evidence and the impugned order with their able assistance.

10. After careful consideration and meticulous examination of the available record, suffice to say that mere heinous nature of offence is not sufficient to convict the accused because the accused continues with presumption of innocence until found otherwise at the end of the trial. It is the settled principle of law that burden is always upon the prosecution to prove the case beyond shadow of doubt. Keeping in view of this basic touchstone of criminal administration of justice, I have examined the ocular evidence as well as circumstantial evidence, along with impugned order.

11. After going through the record, I have come to this conclusion that the appellant has failed to prove its case against the respondents Nos.2 and 3 and the evidence produced by all the prosecution witnesses against the respondents Nos.2 and 3 are weak in nature for the reasons that incident took place on 21.09.2011 during banking hours, whereas, FIR of the said incident was lodged on 05.01.2012 at about 2130 hours, after the delay of about three months and fifteen days, for which no satisfactory explanation has been furnished by the appellant/complainant. Not only this, the allegations against the respondents Nos.2 and 3 are that they have allegedly issued cheques to the appellant as representative of Globe Petroleum, which were dishonored/bounced on presentation before the concerned Bank. In this regard, the evidence of appellant/complainant is very interesting. For the sake of convenience, it would be advantageous to reproduce the relevant portion of cross-examination of the appellant/complainant, which reads as under:-

"........It is correct to suggest that both cheques produce by me neither signed by Farhan nor Rehmatullah it is correct to suggest that Farhan and Rehmatullah have no concern with my dealing and profit with Khalil Nagar."

From the perusal of above piece of evidence, it is clear that respondents Nos.2 and 3 were neither signed or delivered the alleged cheques, nor they have any nexus with the alleged cheques. Even appellant/complainant in his evidence has also exonerated the respondents Nos.2 and 3 by stating that they have no concerned with his dealing and profit with Khalil Nagar (absconder accused). Hence, a dent has been created in the appellant's case about the allegations as leveled by him against respondents Nos.2 and 3. When these facts confronted to learned Counsel for the appellant for explanation, he has not replied satisfactory.

12. Moreover, I have also gone through section 489-F, P.P.C. with the able assistance of learned Counsel for the parties. For the sake of convenience, it would be proper to reproduce section 489-F, P.P.C., which reads as under:-

"[489-F. Dishonestly issuing a cheque. Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.]"

After going through the language used in above section, it appears that it would only be applied for those, who dishonestly issued a cheque towards re-payment of loan or fulfillment of obligation, which was dishonored on presentation before concern bank, but herein this case, as per record, neither the cheques were issued by the private respondents nor it were signed by them, therefore, under the circumstances, the case and claim of the appellant against the private respondents does not fall within the ambit of section 489-F, P.P.C. Learned trial Court has rightly observed that if further evidence of remaining witnesses is recorded in this case, it would not improve the case of prosecution and no fruitful purpose would be achieved.

13. I have also gone through the evidence of PW-3 namely, Samiullah Khan, Branch Manger of Bank at Ex.7, who in his cross examination, deposed as under:-

"It is correct to suggest that at the time of cheque bounce 5423800 dated 16-09-2011 I was not posted in present branch. It is correct to suggest that when cheque No. 5423299 when bounced I was not posted in present branch. It is correct to suggest that I have not produce the account opening form today in Court. I have no knowledge about the numbers and names of partners of Globe petroleum services. I am branch manager at present. I am not manager operation. It is incorrect to suggest that I deposed falsely."

In view of above evidence, it appears that he has no knowledge about the number and names of partners of Globe Petroleum Services. This witness has also not supported the version of complainant. Hence, the assertions leveled by the appellant against the respondents Nos.2 and 3 of alleged offence has no force.

14. I have also gone through the evidence of remaining witnesses and found not supportable to corroborate the version of appellant, which are material and fatal to the prosecution case. All these aspects of the case have already been highlighted by the learned trial Court in its order of acquittal under section 249-A, Cr.P.C. For the sake of convenience, it would be appropriate to reproduce the relevant portion of the impugned order, which reads as under:-

"5. The evidence of complainant is luminous to understand the controversy between the parties. Prime witness has deposed, reproduce in brief, "I had paid the pay order of Rs.5800,000/- to one Khalil Nagar son of Haroon Nagar. He was general manager of Gullop petroleum. I had oral agreement with him, that he will return the principle amount within fifteen (15) days along with due profit." In cross he admitted that both cheques produce by him neither signed by Farhan nor Rehmatullah he further admitted that accused persons Farhan and Rehmatullah have no concern with my dealing and profit with Khalil Naga.

6. Suffice to say that applicant/accused persons cannot be held for a crime on basis of probabilities and high presumption and no one shall be construed into a criminal without a legal proof Reliance is placed on record on case law reported as 2005 PCr.LJ 22. There is nothing on record to connect the accused persons with the commission of offence, thus the prosecution has miserably failed to bring the charge home, against the accused. I would like to reproduce the provision of section 71 of the Qanun-e-Shahadat Order, 1984, which reads as under:-

"Buren of proof (1) whoever desires any Court to give judgment as to any legal right or liability depends on the existence of facts, which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

During the course of arguments, I have also specifically asked the question from the learned Counsel for the appellant to point out/show any piece of evidence, which is not supportable from the evidence on record, no satisfactory answer was available with him. Perusal of record shows that the trial Court rightly acquitted the respondents Nos.2 and 3 through impugned order under section 249 A, Cr.P.C., which is neither perverse nor arbitrary. So far the appeal against acquittal is concerned, after acquittal the respondents have acquired double presumption of innocence, this Court would interfere only if the judgment/order was arbitrarily, capricious or against the record. But impugned order of acquittal in my considered view does not suffer from any misreading and non-reading of the evidence. As regard to the consideration warranting the interference in appeal against acquittal and an appeal against conviction principle has been laid down by the Hon'ble Supreme Court in various judgments. In case of State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo reported as 1993 SCMR 585, Hon'ble Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

"14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed."

15. For what has been discussed above, I am of the considered view that impugned order is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Hon'ble Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, this Criminal Acquittal Appeal No.112 of 2015 is without merits and the same is dismissed.

MFB/A-125/Sindh Appeal dismissed.