2020 Y L R 1099
[Balochistan]
Before Abdul Hameed Baloch, J
TOOR JAN---Petitioner
versus
The STATE--- Respondent
Criminal Revision No. 9 of 2018, decided on 25th November, 2019.
(a) Penal Code (XLV of 1860) ---
----S. 489- F---Criminal Procedure Code (V of 1898), S. 161---Dishonestly issuing a cheque --
-Appreciation of evidence ---Benefit of doubt ---Delay in recording statements of witnesses by
police ---Effect ---Complainant alleged that cheques handed over by accuse d in pursuance of
business deal were dishonoured--- Statement of Operations Manager of the Bank under S.
161, Cr.P.C. was recorded with a delay of one month, which reduced the veracity of witness
to nil--- Complainant had neither produced any agreement in re spect of transaction nor
produced any legal documents before the investigating officer or court ---Statement of
witness produced by prosecution revealed that no transaction had taken place in his presence -
--Prosecution had failed to prove the charge against the accused ---Accused was acquitted of
the charge, in circumstances.
Muhammad Asif v. State 2017 SCMR 486 and Nazar Muhammad v. State 2018
PCr.LJ Note 106 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 161 ---Examination of witnesses by police ---Scope ---Delay in recording statement of
witness under S. 161, Cr.P.C. casts doubt on his statement.
(c) Penal Code (XLV of 1860)---
----S. 489- F---Dishonestly issuing a cheque ---Scope ---Section 489- F, P.P.C. provides that the
cheque must be issued dishone stly for the fulfilment of an obligation whereas mere issuance
of a cheque, which was subsequently dishonoured, does not constitute an "offence" under
S.489- F, P.P.C.
(d) Criminal trial ---
----Benefit of doubt ---Scope ---Defence is not required to create s erious doubt in the case of
prosecution--- Slightest doubt in the prosecution case is enough to give its benefit to the
accused, not as a matter of grace but as of right.
Sher Umer Khan v. Khan Put 2015 PCr.LJ 143 ref.
Nadir Ali Chalghari for Petitioner.
Abdul Latif Kakar, Addl. P.G. for the State.
Date of hearing: 22nd November, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---This criminal revision petition is directed against
the judgment dated 11.10.2017, (the "impugned judgment") passed by the learned Judicial
Magistrate -X/MFC, Quetta (the "trial court") and the Judgment dated 08.02.2019, passed by
learned Additional Sessions Judge -III, Quetta (the "appellate court") whereby the conviction
and sentence recorded by the trial court under Section 489- F, P.P.C. for a period of six
months rigorous imprisonment (RI) with fine of Rs.30,000/ -, in default whereof further one
and half months SI, was upheld by the appellate Court.
2. The relevant facts as narrated in the FIR are that on 05.11.2013, the complainant
Malik Khudai -e-Rahim lodged an FIR No.257/2013 with Police Station City Quetta, alleging
therein that in pursuance of business deal the accused/convict handed over various cheques total amounting to Rs.80,50000/ -against the payment of vehicles. All the cheques were
presented to the concerned banks on their mentioned dates for encashment but the same
cheques could not be encashed due to insufficient balance in the account.
3. After usual investigation, the challan of the case was submitted before the trial Court.
The convicts/petitioners did not plead guilty to the charge and claimed trial. The prosecution, in order to substantiate the charge, produced as many as (05) witnesses. Thereafter, the statement of the petitioner as envisaged under section 342, Cr.P.C. was recorded, though he professed his innocence, but did not opt to record his statement on oath nor produced any defence witness. On conclusion of trial, the learned trial Court convicted and sentenced him in the aforesaid terms, while the appe al against the said conviction was also dismissed by the
appellate Court.
4. I have heard the learned counsel for the petitioners, learned APG and have gone
through the record of the case with their able assistance. It is the case of prosecution that the accused/appellant has purchased different kind of vehicle worth of Rs.80,50000/ - and issued
cheques of Mezan Bank Quetta, wherein due to insufficient amount the cheques were dishonored. The prosecution in order to substantiate its case produced five witness es. The
record depicts that the statement under Section 161 Cr.P.C. of Operation Manager of Mezan Bank Quetta was recorded 09.12.2013 while statement of PW -4 Gul Muhammad was
recorded on 15.12.2013, meaning thereby the statement of both the witnesses were recorded with delay of more than one month without explanation. Where the statement of witnesses recorded with delay, it costs doubt in their statements. The veracity of witness is reduced to
nil. The conviction on the basis of belated statement cannot be sustained. The prosecution
failed to justify the recording of statement at such a belated stage. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Asif v. State 2017 SCMR 486 held that:
"Again there is another doubtful aspect of the case becau se Nazar Hussain (PW- 9),
the father of the deceased who according to the FIR was stated to be guarding the dead body, on arrival of the local police to the spot, however, in the very examination in chief at page/20 of the paper book he has squarely stated that he joined the
investigation after one month and one day after the occurrence. There is a long line of authorities/precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye -witnesses woul d be fatal and
testimony of such witnesses cannot be safely relied upon. "
5. The prime question is that whether any business transaction between the complainant
and accused had taken place or not. The contention of the complainant does not appeal to reaso n. The complainant neither produced any agreement in respect of Sales of vehicles nor
produced legal document of any vehicle before Investigating Officer or court. The complainant has not produced from whom he purchased the vehicles. Even in FIR the regist ration, chassis and engine numbers of the vehicles were not mentioned. The
complainant failed to produce document of any vehicle from Excise and Taxation Department.
6. Before parting to judgment, it is necessary to reproduce section 498- F, P.P.C. as
under :
"489 -F. Dishonestly issuing a cheque. Whoever dishonestly issues a cheque towards
re-payment of a load or fulfilment of an obligation which is dis -honoured on
presentation, shall be punishable with imprisonment which may extend to three years, or with f ine, or with both, unless he can establish, for which the burden of proof shall
rest on him, that he had made arrangements with his band to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque."
7. The bare reading of referred section shows that the cheque must be issued dishonestly
for the payment of the fulfilment of an obligation whereas mere issuance of a cheque, which subsequently dishonored does not constitute an offence under section 489- F, P.P.C. It mea ns
first proved whether any transaction has taken place or not. In the instant case the prosecution examined PW -4, whose statement depicts that no transaction has taken place in
presence of referred witnesses. This court in a reported judgment title Nazar Muhammad v.
State 2018 PCr.LJ Note 106 held as under:
12. It has been established from the above, that the complainant of the case has absolutely failed to produce any single documents in the shape of agreement/receipt etc. showing that any transaction of vehicles were carried out in between the parties.
The complainant has also not produced any agreement to the effect that any agreement with regard to any sort of business has been carried out between the complainant and the petitioner. Suffice to state he re that a cheque being mode of
payment must appear to have been issued against consideration of business transaction or any other dealing of the date and time thereof, showing that the issuer
is liable to pay the amount for the consideration of which, he has issued the cheque. If
the issuance of such cheque is backed with no meaningful transaction creating an instant liability of payment of the amount thereof, against certain consideration involved therein, no criminal liability would prima facie occur in c ase of any cheque
so issued and dishonored since where there is no such liability there is no fraud or
dishonesty referred to above. Admittedly, the complainant has absolutely failed to
establish on record that there had been any transaction between him an d the petitioner
for which the cheque had been issued and subsequently was declared dishonoured."
8. Here it may not be irrelevant to state that the defence is not required to create serious
doubt in the case of prosecution case, if a slightest doubt arise s in the prosecution case even
then the accused is/are entitled to the benefit of the same not as matter of grace but as a right.
In this regard reliance is placed on the case of Sher Umer Khan v. Khan Put 2015 PCr.LJ 143.
In view of above, I reached at the irresistible conclusion that the prosecution has
miserably failed to prove the charge against the appellant beyond the shadow of reasonable doubt. Thus, the petition is accepted and the impugned judgment dated 11.10.2017 and judgment dated 08.02.2019, respectively passed by the learned Judicial Magistrate -X/MFC
and Additional Sessions Judge -III, Quetta are set aside. The appellant/convict is acquitted of
the charge in case FIR 257/2017, under section 489- F, P.P.C., registered with Police Station
City, Q uetta. The appellant is on bail, his bail bonds stand discharge.
SA/174/Bal. Revision accepted.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.