MUHAMMAD YASIN Versus MUHAMMAD ZUBAIR FAROOQUI
ABDUL MAALIK GADDI, J.--- Captioned appeal is directed against the judgment dated 22.01.2016, passed by the learned Xth Civil ,Judge and Judicial Magistrate, Karachi (Central) in Criminal Case No.2917 of 2013, emanating from Crime No.125 of 2013, registered under Section 489-F, P.P.C. at Police Station Yousuf Plaza, Karachi, whereby the learned trial Court after full dressed trial, acquitted the respondent No.1 under Section 245(1), Cr.P.C. from the said charge by giving him benefit of doubt.
2. Facts necessary for the disposal of instant acquittal appeal as alleged in FIR are that accused Zubair Farooqui dishonestly issued one cheque bearing No.3484183 of Rs.80,00,000/- dated 07.08.2013 of his account of Habib Bank Yousuf Plaza Branch, Karachi to complainant Muhammad Yaseen son of Muhammad Younus towards the fulfillment of sale agreement in respect of Bungalow No.B-72, Block-L, North Nazimabad, Karachi, but the said cheques were dishonored on their presentation on their presentation at concerned bank. Hence, this FIR.
3. That charge was framed against the respondent No.1 on 13.12.2013 at Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea at Ex.2/A.
4. At trial, in order to prove the accusation against the respondent No.1, prosecution had examined the following witnesses:-
(i) PW-1/complainant Muhammad Yasin at Ex.3, who produced certified copy of order dated 31.10.2013, statement under section 154, Cr.P.C., FIR and memo of site inspection, affidavit undertaking therein that he shall produce their originals during trial and original dishonored cheque bearing No.3484183 dated 07.08.2013 of Rs.80,00,000/- and its return memo at Ex.3/A to Ex.3/G respectively;
(ii) PW-2 Muhammad Mujhtaba, brother of complainant and co-owner of the property at Ex.4;
(iii) PW-3 Najam-ul-Hassan, Bank Manager (Operations) in Bank HBL Yousuf Plaza Branch, Karachi at the time of the commission of the alleged offence at Ex.5, who produced police letter and verification letter at Ex.5/A and Ex.5/B respectively;
(iv) PW-4 Muhammad Fahim, author of FIR at Ex.6;
(v) PW-5 Muhammad Rafiq on behalf of I.O. Aslam Javaid at Ex.7, as he was paralyzed and unable to move. He produced his report along with roznamcha entry dated 22.05.2015 at 1505 hours report No.19 of Police Station Yousuf Plaza, letter of SSP dated 20.08.2015, medical reports at Ex.7/A to Ex.7/A-5 respectively.
These witnesses were cross-examined by the Counsel for the respondent No.1 and thereafter, learned ADPP for the State closed the prosecution side vide statement at Ex.8.
5. Statements of respondent No.1 was recorded under Section 342,
Cr.P.C. at Ex.8, in which he denied the allegations as levelled by the prosecution and claimed to be innocence. However, he neither examine himself on oath, nor produce any witness in his defence.
6. Ms. Humaira Aftab, learned Counsel for the appellant argued that the judgment 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 respondent No.1 are not supportable from evidence on record; that prosecution has successfully proved its case beyond any reasonable doubt as the prosecution witnesses have fully supported its case; that respondent No.1 should be awarded exemplary punishment as he does not deserve any concession; that the said respondent has 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, she was of the view that this appeal may be allowed by setting aside the impugned judgment.
7. Mr. Abdullah Rajput, learned Deputy Prosecutor General, Sindh, assisted by Mr. Ahmed Zamir Khan, learned Counsel for respondent No.1, by making a prayer for upholding the impugned judgment submits that there is no gross irregularity, illegality or infirmity in the impugned judgment as there are sufficient reasons and grounds, which creates reasonable benefit of doubt in favour of the accused. He further submits that no convincing evidence has brought by the prosecution on record to award conviction to the accused persons.
8. Heard arguments. Impugned judgment and record has carefully been perused.
9. Learned counsel for the appellant could not show the specific part of judgment, wherein the learned trial court has committed any gross illegality as the ocular and medical evidence is not favoring to the complainant.
10. It appears from the record that the incident took place on 07.08.2013, whereas, the FIR was lodged on 09.11.2013 after the inordinate delay of about three (3) months. During the course of arguments, I have specifically asked the question from the learned Counsel for the appellant to explain the delay in lodging of FIR, but she has no plausible answer with her; however, she submits that after dishonored/bounced of the cheque, the appellant approached to the respondent No.1 to return his amount, however, he kept the appellant on false hopes, but in this regard, no documentary evidence is available on record to prove this fact. Merely asserting that the appellant has approached to the respondents for returning of his cheque amount, is not enough. Therefore, on this ground, false implication of the respondent No.1 in this case could not be ruled out. It also appears from the record that the respondent No.1 has also filed a Civil Suit No.1644 of 2006 for specific performance, declaration and permanent injunction against the appellant. Similarly, appellant has also filed J.M. No.15 of 2016 against the respondent No.1 in this Court, which is still pending for adjudication. In view of such pending litigations between the parties, it appears that parties are in litigation since long with regard to the disputed amount, which appears to be civil in nature. I have also gone through the impugned judgment with the able assistance of the parties Counsel and say that learned trial Court has dealt with all the aspects of the matter involved in this case quite comprehensively in the light of all relevant laws dealing with the matter and now before me, the Counsel for the appellant was unable to demonstrate that the impugned judgment by any means suffers from any illegality or mis-apprehension or mis-appreciation of evidence by way of documents available on the record. For ready reference, it would be appropriate to reproduce the relevant portion of the impugned judgment, which reads as under:-
"After the closure of the side of the prosecution the accused has examined himself at Ex.09 and made statement under section 342, Cr.P.C. However, he had not opted to make statement on oath. He stated that all the PWs are interested witnesses. He further explained that he knew the complainant Muhammad Yasin son of Muhammad Younus as he has entered into a sale agreement dated 29-09-2005 in respect of bungalow No.B-72, admeasuring 365.55 sqyds Block-L, North Nazimabad, KDA scheme No.2 Karachi for total sale consideration of Rs.1,65,00,000/-. He produced original sale agreement dated 29-09-2005 at Ex.09/A (original seen and return). In pursuant of the sale agreement an amount of Rs.25,00,000/- in cash and Rs.80,00,000/- in shape of pay order were given to the present complainant. Thereafter a dispute arise between him and the present complainant along with the other co-owner of the said property who refused to honor the said sale agreement for the reason that one of the sisters of the present complainant was not willing to sale the said property. Thereafter the complainant took him to Ashraf-ul-Madariss for the purpose of taking Fatwa regarding out dispute. He produce Fatwa dated 21.09.2006 at Ex.09/B (original seen and returned). He filed a suit for Declaration, Permanent Injunction and Specific Performance bearing No.1644/2006 before the Hon'ble High Court of Sindh. The Hon'ble High Court of Sindh was pleased to order him to deposit the remaining balance amount of Rs.60,00,000/- with the Hon'ble Nazir of Hon'ble High Court. Thereafter five sisters of the present complainant approached him and requested not to deliver the balance amount of the sale agreement to the complainant and his brother as they apprehended that they might by deprived from their right of inheritance at the hand of the present complainant his brother. The said suit before the Hon'ble HC was partly decreed as compromise between the parties. He produced certified copy of order dated 23-01-2012 passed in Suit No.1644/2006 at Ex.9/D. He further stated that five sisters of the complainant took their shares from the office of the Hon'ble Nazir of Hon'ble High Court. Thereafter, another concerned decree dated 20.06.2013 and concerned order dated 03-06-2013 was passed whereby the dispute between him and present accused was settled. He produced certified copy of the above concerned order and above concerned decree at Ex.09/E and 09/F respectively. Thereafter the complainant handed over to him original files but failed to deliver the possession of the said property. At present the rent of the said premises is being received by the present complainant and his brothers. He explained that the complainant was in possession of an old undated cheque of him which was given as a surety for entering into a compromise in the case bearing No.1644/2006 which was to be returned to him by the complainant after the settlement of the case bearing No.1644/2006, but the complainant failed to return in the said cheque which is also cheque in question in the present proceedings. He further stated that the said cheques was stopped by him in the concerned bank on the very next date on which the decree dated 20-06-2013 was passed in the case bearing No.1644/2006. Thereafter the present complainant extended threats of lodging a false FIR against him. Since, the complainant failed to produce any evidence, therefore, the official Police Station Yousuf Plaza initially refused to lodge the FIR. However, the instant FIR was lodged in compliance of an order passed by the Hon'ble ADJ-II, Karachi (Central) in Cr. Misc. Appl. No.1008/2013. Lastly, he stated that there is nothing outstanding against him, nor any dispute between him and the present complainant except the present proceedings."
When all these facts, including the above relevant portion of the impugned judgment confronted to learned Counsel for the appellant, he has no satisfactory answer with him.
11. It is not out of context to make here necessary clarification that appeal against acquittal has distinctive feature and approach to deal with appeal against conviction is distinguishable from appeal against acquittal, because presumption of double innocence is attached in latter case. Order of acquittal can only be interfered with when it is found on the face of it as capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and led to gross miscarriage of justice. Mere technicalities in a criminal trial without resulting injustice, is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order. Reliance in this respect may conveniently be placed on 1998 PCr.LJ 1576, 1985 PCr.LJ 2973, 1991 SCMR 2220, 1993 SCMR 28, 1985 PCr.LJ 457 and PLD 1966 Supreme Court 424. While examining the facts in the judgment of acquittal, substantial weight should be given to the findings of the lower Courts whereby accused were exonerated from the commission of crime as held by the Apex Court in 1998 SCMR 1281. In 1977 PCr.LJ 477, it was held that acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.
12. Whatever mentioned above, more particularly, in light of case law referred above, I reached at the irresistible conclusion that the appellant has miserably failed to prove his case against respondent No.1 beyond shadow of reasonable doubt, therefore, no interference in the impugned judgment is required by this Court, as it is well reasoned and of course a speaking one.
13. Resultantly, the instant criminal acquittal appeal being devoid of any merits is hereby dismissed along with listed applications. Office is directed to send copy of this order to the trial Court for information.
14. This criminal acquittal appeal was dismissed in open Court after hearing the parties through short order dated 12.11.2019 and these are the reasons thereof.
SA/M-28/Sindh Appeal dismissed.