2017 M L D 1691
[Balochistan]
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ
Haji MUHAMMAD UMAR---Appellant
Versus
TAJ MUHAMMAD and another ---Respondents
Criminal Acquittal Appeal No.98 of 2015, decided on 17th April, 2017.
(a) Penal Code (XLV of 1860) ---
----S. 489- F---Dishonestly issuing cheque ---Appreciation of evidence ---Appeal against acquittal -
--Prosecution case was that accused in consideration of sale transaction of buffaloes with
connivance of his co- accused/brother, since acquitted, had issued four cheques of different
amounts, which were bounced on presentation--- Record showed that cheques in question were
not presented within due date ---Witness/Bank representative stated that cheques were produced
after the lapse of two years whereas th e maximum period for presentation of the cheques was six
months ---Iqrarnama was executed between the parties, at the time of sale transaction, but
cheques in question were not mentioned therein---Admittedly, there was civil litigation between
the parties, initiated by the complainant---False involvement of accused -respondent along with
his family members to settle down the civil liability, if any, by filing criminal case could not be
ruled out in circumstances ---Prosecution failed to prove the guilt of the respondent to the hilt
because presenting cheques after the date of its expiry showed mala fide intention only to drag
the respondent along with his family members in criminal case ---Appeal against acquittal was
dismissed in circumstances.
(b) Penal Code (XLV of 1860) ---
----S. 489- F---Dishonestly issuing cheque ---Appreciation of evidence ---Appeal against acquittal -
--Presumption---Double presumption of innocence was attached to the order of acquittal ---
Interference would be declined with the findings of ac quittal, unless it was proved that the
acquittal order was shocking, ridiculous, artificial or based on misreading and non -reading of
evidence ---In the present case, the appellant had failed to prove any such defect ---Appeal against
acquittal was dismissed in circumstances.
Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 417(2- A)---Appeal against acquittal---Assessment of evidence ---Scope ---Standards of
assessing evidence in appeal against acquit tal and that of appeal against conviction were quite
different ---Assessment of evidence in appeal against conviction was done strictly and in appeal
against acquittal, such rigid method of appreciation of evidence was not to be applied as there
was already findings of acquittal by the trial court after proper analysis of evidence on record.
Sher Umer Khan v. Khan Pur alias Khaney and 2 others PLD 2015 Pesh. 143 rel.
Mohi -ud-Din Achakzai for Appellant.
Yahya Baloch, D.P.G. for Respondents.
Date of heari ng: 3rd April, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Instant appeal is directed against the judgment
dated 18th March, 2015 passed by the learned Additional Sessions Judge -VI, Quetta whereby the
Judgment dated 28th August, 2014 passed by Judicial Magi strate -VI, Quetta was set aside and
the respondent No. 1 was acquitted of the charge..
2. Brief facts of the case are that in pursuance of application submitted by the complainant
Muhammad Umar, the instant FIR No. 80/2013 was registered at P.S. Gawalmandi , Quetta
alleging therein that in consideration of sale transaction of buffaloes the respondent/ accused Taj
Muhammad with the connivance of his brothers (acquitted by the trial court) had issued four
cheques of different amounts. The said cheques were pre sented in the concerned Bank for
encashment but were bounced on account of insufficient balance, hence the registration of instant
case. On completion thereof 'challan' of the case was submitted before the Judicial Magistrate-
VI, Quetta and trial commenced .
3. On 18th July, 2014 the charge was framed against the respondent No. 1 and the acquitted
accused to which they pleaded not guilty and claimed trial. The prosecution in order to
substantiate the accusation produced 6 witnesses. On examination under Sect ion 342, Cr.P.C. the
accused disputed the allegations levelled against them and pleaded their innocence by submitting
that they have committed no offence whatsoever. The complainant after receiving cheques with
mala fide intention presented the same after three years of its issuance knowing that after lapse of
6 months the said cheques expired and could not have been presented. They prayed for their
acquittal, however, neither opted to get themselves examined on oath as envisaged under section
340(2), Cr.P.C. nor produced any witness is examined on oath as envisaged under section
340(2), Cr.P.C. nor produced any witness in their defence. The learned trial court after hearing
the parties and evaluating evidence found the respondent No. 1 guilty, as such convi cted and
sentenced him for the period mentioned hereinabove whereas the co- accused/brothers of the
respondent No. 1 were acquitted of the charge vide judgment referred to herein above. The
judgment passed by the learned trial Court was assailed in appeal b y the respondent Taj
Muhammad before the learned Additional Sessions Judge -VI, Quetta. The appellate Court after
hearing the parties through their counsel and re -evaluating the evidence, did not find the
respondent guilty, as such acquitted him of the char ge by accepting the appeal, hence instant
acquittal appeal.
4. The learned Counsel for the appellant/complainant argued that the judgment impugned
herein passed by the learned appellate Court is not sustainable under the law for the reasons that
the prosec ution has been able to prove its case through ocular and documentary evidence by
bringing on record the cheques issued by the respondent No. 1, presented by the appellant and
dishonoured by the bank. The concerned Bank Manager appeared as witness and supported the
prosecution version but this important and un- rebutted piece of evidence escaped notice of the
learned appellate Court while reversing the findings of the learned trial court. He maintained that
plea raised by the defence in respect of issuing no fake cheques by the respondent, did not appeal
to reason but the appellate court acquitted the respondent No. 1 on grounds not recognised by
law which caused miscarriage of justice to the appellant.
On the other hand the learned Counsel for the respondent No. 1. and D.P.G strongly
opposed the appeal by submitting that the judgement impugned passed by the learned appellate
Court is based on proper appreciation of evidence. The same does not suffer from any illegality,
irregularity, misreading or non- reading of evidence. The learned counsel added that the
prosecution failed to prove guilt of the respondent to the hilt because presenting cheques after the
date of its expiry smake mala fide intention only to drag the respondent and his family members
in crimina l case. They maintained that the learned counsel for the appellant failed to point out
any specific illegality, irregularity, misreading, non -reading or inherent defect in the judgment
impugned therefore appeal filed by the complainant is liable to be dismissed.
5. We have heard the learned counsel for the parties and gone through the record with their
assistance which reflects that bone of contention between the parties was a verbal transaction of
buffaloes sold out by the complainant to the respondent and in lieu thereof later had issued four
cheques which were presented in the bank concerned for enchashment but stood dishonoured due
to non- availability of balance. The perusal of record indicates that the cheques in question were
not presented within due date. PW.2 Zahid Hussain representative of the Bank in answer to a
question admitted that the cheques were produced after the lapse of two years whereas the
maximum period for presentation of a cheque is 6 months. As per the contention of the learned
counse l for the defence the appellant presented the cheques after due date with mala fide
intention to drag the respondent and his brothers in criminal case (the brothers of the respondent
have already been acquitted of the charge by the trial court). We have fu rther observed that in the
year 2012 an alleged 'Iqrarnama', was also executed between the parties but surprisingly not a
single word in respect of cheques in question were mentioned/incorporated therein. Apart from
that civil litigation (Initiated by the complainant) also existed between the parties. In such
circumstances false involvement of respondent No. 1 along with his family members to settle
down the civil liability, if any, by filing criminal case cannot be ruled out. After acquittal the
respondent gained double presumption of innocense. Reliance can be placed on the judgment
titled as Haji Paio Khan v. Sher Biaz and others reported in 2009 SCMR page 803. Relevant
observations there from are reproduced herein below: --
"It needs no reiteration that when an accused person is acquitted from the charge by a
Court of competent Jurisdiction then, double presumption of innocence is attached to its
order, with which the superior Courts do not interfere unless the impugned order is
arbitrary, capricious, fan ciful and against the record".
6. It may further be added that the standards of assessing evidence in appeal against
Acquittal and that of appeal against conviction are quite different. Appraisal of evidence, in
appeal against conviction is done strictly a nd in appeal against acquittal such rigid method of
appraisal is not be applied as there is already finding of acquittal given by the trial court after
proper analysis of evidence on record. Reliance can be placed on the judgment titled as Sher
Umer Khan v . Khan Pur alias Khaney and 2 others reported in PLD 2015 Peshawar 143 relevant
observation there from reads as under: --
"Moreso, this is appeal against acquittal and standards of assessing evidence in appeal
against acquittal are quite different from thos e laid down for appeal against conviction.
Marked difference exists between appraisal of evidence in appeal against conviction and
in appeal against acquittal. Appraisal of evidence, in appeal against conviction is done
strictly and in appeal against acqui ttal such rigid method of appraisal is not to be applied
as there is already findings of acquittal given by the trial court after proper analysis of
evidence on record. Scope of appeal against acquittal of accused is considerably narrow
and limited. Unless the judgment of acquittal is perverse, completely illegal and on
perusal of evidence, no other decision could be given except that accused is guilty or
there has been complete mis -reading of evidence leading to miscarriage of justice. High
Court is always slow in exercise of jurisdiction under section 417, Cr.P.C. unless it finds
that gross injustice had been done in administration of criminal justice."
7. It is well settled principle that the courts while dealing with acquittal appeals always
remain reluctant to interfere with the finding of acquittal unless it is proved that the same are
shocking ridiculous, artificial and based on misreading and non- reading of evidence. In the
instant case the appellant failed to prove any such defect. On the contrary the perusal of
impugned judgment reveals that the learned appellate Court after attending all legal as well as
factual aspects of the case passed a well reasoned and speaking judgment, which, to our
perception does not suffer from any illegality or irregular ity hence is not open to any exception.
In view of aforementioned facts and circumstances of the case appeal filed by the
appellant/complainant is hereby dismissed.
JK/72/Bal Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.