Sohail Ahmad Siddiqui vs State etc.

Stereo. HC JD A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Criminal Appeal No. 360 of 2015.

Sohail Ahmad Siddiqui Versus The State and another.

JUDGMENT

Date of hearing 27.11.2025.

Appellant by: Mr. Muhammad Azam Khan, Advocate. State by:- Mr. Waheed Rafique, Deputy District Public Prosecutor.

Respondent Mr. Muhammad Amjad Chaudhary, Advocate. No.2 by:-

SADIQ MAHMUD KHURRAM, J.:- Through the

instant appeal, the judgment dated 19.03.2015, passed by the learned Magistrate, Shujaabad has been assailed, whereby the respondent No.2 namely Manzoor Hussain was acquitted of the charge in respect of an offence under section 489-F P.P.C. in the case F.I.R. No.191 of 2007, dated 26.05.2007, registered at the Police Station City Shujaabad, District Multan.

2.As per the prosecution case, the allegation was that the respondent No.2 namely Manzoor Hussain had drawn a cheque of the total value of Rs.20,00,000/- and dishonestly issued the same to the appellant, which on presentation before the concerned bank authorities, was dishonoured.

Crl. Appeal No. 360 of 2015

3.After the formal investigation of the case, report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court, wherein the respondent No.2 namely Manzoor Hussain was sent to face trial. The learned trial court framed the charge against the respondent No.2 namely Manzoor Hussain on 27.09.2011 under section 489F P.P.C. The respondent No.2 namely Manzoor Hussain pleaded not guilty and claimed trial. The prosecution examined as many as six witnesses in order to bring home the charge against the accused. Rehmat Ali, ASI (PW-1) got registered formal F.I.R (Exh.PA/1). The appellant namely Sohail Ahmad Siddiqui (PW-2), the complainant of the case, narrated the prosecution version as given by him in the F.I.R. Abdul Hameed (PW-3) stated that he witnessed the handing over of the amount by the appellant to the respondent No.2 on 20.06.2006 and the issuance of the cheque by the respondent No.2 to the appellant. Muhammad Javed ASI (PW-4) investigated the case 22.04.2009 till the submission of the report under section 173 of the Code of Criminal Procedure, 1898, and detailed the facts of his investigation in his statement before the learned trial court. Javed Iqbal, S.I. (PW-5) also investigated the case from 26.05.2007 till his transfer to the police line and detailed the facts of his investigation in his statement before the learned trial court. Naveed Alam, ASI (PW-6) also investigated the case from 05.10.2007 till 13.02.2008 and detailed the facts of his investigation in his

Crl. Appeal No. 360 of 2015 statement before the learned trial court.The learned trial court also recorded the statements of three court witnesses. Ishfaq Ahmad, Operation Manager, UBL, Branch, Shujaabad (CW-1) deposed about the presentation of the disputed cheque before the banking authorities on 02.02.2007 and dishonouring of the same. Abdul Rasheed Malik, Manager UBL, Shujaabad Branch (CW-2) stated about the presentation of the disputed cheque in the bank and issuance of dishonor slips. Qaisar Javed Officer, UBL (CW-3) deposed about the issuance of dishonor slips of the disputed cheque. The prosecution gave up prosecution witness namely Mehmood Ali as being necessary and prosecution evidence was closed on 03.04.2014. After the closure of the prosecution evidence, the respondent No.2 namely Manzoor Hussain was examined by the learned trial court and he in his statement under section 342, Cr.P.C. denied the allegations; however opted not to get himself examined under section 340(2) Cr. P.C but adduced certain documents in his defence. The learned trial court, after taking into consideration the entire material brought on the record, came to the conclusion that the prosecution had failed to prove the charge against the respondent No.2 namely Manzoor Hussain beyond reasonable doubt. Accordingly, the respondent No.2 namely Manzoor Hussain was acquitted by the learned trial court, vide judgment dated 19.03.2015, hence, this appeal.

4.The learned counsel appearing on behalf of the appellant and the learned Deputy District Public Prosecutor contended

Crl. Appeal No. 360 of 2015 that sufficient incriminatory evidence was available on the record establishing the guilt of the respondents No.2 namely Manzoor Hussain, therefore, the learned trial court was not justified in acquitting him.

5.The learned counsel for the respondent No.2 namely Manzoor Hussain submitted that as the prosecution failed to prove the case therefore the respondent No.2 namely Manzoor Hussain was rightly ordered to be acquitted by the learned trial court.

6.I have heard the learned counsel appearing on behalf of the appellant, the learned counsel for the respondent No.2, the learned Deputy District Public Prosecutor and have gone through the record of the case with their able assistance.

7.I have gone through the judgment and have also perused the evidence as produced by the appellant during the course of trial of the case as well as the same produced before the learned trial court by the respondent No.2 namely Manzoor Huussain and have arrived at a conclusion that the reasons for which the learned trial court proceeded to acquit the respondent No.2 from the charge framed against him, cannot be said to be the result of misreading of evidence, non-reading of evidence or being presumptive in any manner rather the facts upon which the learned trial court held that during the course of the trial, the charge against the respondent No.2 could not be proved are borne out from the record itself. I have also gone through the statement of Sohail Ahmad Siddiqui, the complainant of the

Crl. Appeal No. 360 of 2015 case (PW-2), the appellant and he admitted the fact that there was litigation pending between him, the respondent No.2 and Ishfaq Ahmad (CW-1), Operation Manager, UBL, Shujaabad Branch. More importantly the appellant failed to provide any reason for him to have extended such a huge amount to the respondent No.2 as loan , despite having no purpose with him nor even having any reason for extending loan of such a huge amount to the respondent No.2 and then there being hostile relations between them. The statement of the appellant made during the course of cross-examination that it was on the demand of the respondent No.2, made to him on 2/3 occasions, that he suddenly came to hand over such a huge amount to the respondnet No.2 even otherwise makes the same improbable, implausible and unbelievable and such statement cannot be considered credible in the attending circumstances of the case.

It is also a fact that during the cross-examination, the appellant also admitted that he did not even remember the particulars of the cheque which was dishonoured and also admitted that he had appeared as a witness during the trial of the suit filed by him under Order XXXVII, Rule 1 and 2 CPC and in that statement too, he could not remember as to whether he had given the particulars of the cheque or otherwise. The appellant during the cross-examination also admitted that the application which was submitted by him for the registration of the case was not written by him rather was written by a clerk of his counsel and on his application, the case was not registered and he had to

Crl. Appeal No. 360 of 2015 approach the learned Ex-officio Justice of Peace albeit with delay. The appellant,despite claiming that he had to approach the learned Ex-officio Justice of Peace with the complaint of non-registration of the F.I.R, , did not explain the reason for the delay in approaching the Ex-Officio Justice of Peace .

Moreover the reasons due to which the appellant had to approach the learned Ex-officio Justice of Peace, also made the narrative of the whole prosecution case highly doubtful. I have also gone through the statement of Abdul Rasheed Malik (CW- 2), who stated that as per the record available with him, it was on 10.02.2007, when the appellant submitted a cheque for encashment which was dishonoured, however, the said witness admitted that he had been posted as Manager at the said branch on 01.11.2010 and at the time when the cheque was presented for encashment, he was not the Manager at all. Abdul Rasheed Malik (CW-2) also admitted that he did not know as to who was the officer who had issued the cheque return memo and could not give his name to the learned trial court. In this manner, the relevancy of the statement of Abdul Rasheed Malik (CW-2) to prove any fact in issue or even the relevant fact, becomes nothing and the prosecution was under duty to have produced the witness who was the concerned with the preparation of the Cheque Return Memos (Exh.P-2 to Exh.P-4), therefore, failure to produce the said witness also fatally hit the prosecution case.Addedly,Ishfaq Ahmad (CW-1) stated that the impugned cheque was presented before him by the appellant,

Crl. Appeal No. 360 of 2015 however, as there were no funds available, the same was dishonoured. It has been noticed that during the cross- examination, Ishfaq Ahmad (CW-1) admitted that the appellant was his brother in-law ( )بہنوئیand the respondent No.2 also had an account established in the same branch where he, Ishfaq Ahmad (CW-1), was performing his duties. Ishfaq Ahmad (CW-1) also admitted during cross-examination that he had filed a suit against the respondent No.2 with regard to the registration of the case F.I.R No. 80 of 2007, at the Police Station Gallaywal, which was also found to be false and was cancelled due to which he had claimed damages from the respondent No.2 due to malicious prosecution conducted by him as against the said witness. In this background where Ishfaq Ahmad (CW-1), the Operation Manager, himself admitted that there was not only litigation pending between him and the respondent No.2 but also admitted that the appellant was his brother in-law ()بہنوئی, his statement with regard to the dishonouring of the cheque could not have been implicitly relied upon by the learned trial court and was rightly declared to be not worthy of reliance. Moreover, with regard to the dishonouring of the impugned cheque, Ishfaq Ahmad (CW-1) had nothing to do with the dishonouring and return of the cheque rather it was the Cashier as well as Branch Manager who were the persons concerned with regard to the verification of the contents of the cheque and its return when it was being dishonoured. It was also admitted by Ishfaq Ahmad (CW-1)

Crl. Appeal No. 360 of 2015 that at that time, Naseem Javed was posted as Manager at UBL Shujaabad Branch , to which branch the present case is related, however, the said Naseem Javed only appeared as a Court Witness. This Court has also noticed that the present case was investigated by Muhammad Javed, ASI (PW-4) and he also made certain admissions hitting at the very foundation of the prosecution case against the respondent No.2. In this regard, it is observed that Muhammad Javed, ASI (PW-4) admitted during the cross-examination that he had not sent the cheque to the Punjab Forensic Science Agency, Lahore for analysis of the signatures upon the same. It is also a fact that Naveed Alam, ASI (PW-6) also admitted during the cross-examination that the signatures upon the impugned cheque were never got verified from the Punjab Forensic Science Agency, Lahore.The learned counsel for the appellant has submitted that presently the report of the Punjab Forensic Science Agency, Lahore is available, however, the said report, at this stage, cannot be considered for the simple reason that neither the same was produced in evidence nor any application has been submitted even during the pendency of this appeal to consider the admissibility of the same as additional evidence. In absence of any application under section 428 Cr.P.C. for considering the report of the Punjab Forensic Science Agency, Lahore as additional evidence in the case and in view of the admitted fact that the said report was never produced during the trial, then the said report cannot be looked into at this stage, whatever its contents may be.

Crl. Appeal No. 360 of 2015 What however can be considered is that when the prosecution, despite having the possession of the report, did not produce the same before the learned trial court then the presumption can be drawn that if the said report had been produced, the same would have gone against the prosecution and it was due to the said reason that the same was not produced during the trial.The learned counsel for the appellant is right in his submission that the heavy reliance of the court holding the trial on the suit filed by the appellant under Order XXXVII, Rule 1 and 2 CPC, was not in accordance with the law and according to the provisions of the Qanun-e-Shahadat order 1984, only the existence of a previous judgment can be proved, however, what was the conclusion of the said court in the said judgment could not be considered as relevant nor admissible but the other fatal flaws which are part of the prosecution case and identified by this Court as above, are sufficient to arrive at a conclusion that the prosecution had failed to prove the case against the respondent No.2 beyond a shadow of reasonable doubt. This is now a settled principle of law that in every case, the burden to prove the guilt of the accused always lies on the prosecution. Even the slightest doubt results in the failure of the case of the prosecution. Benefit of doubt is not to be granted as a concession but as of right to the accused. The prosecution by mishandling the case has badly failed to bring on record unimpeachable and cogent evidence to prove the culpability of the appellant. In the light of the above noted infirmities, we are

Crl. Appeal No. 360 of 2015 inclined to observe that the prosecution has miserably failed to bring home the guilt of the accused. The prosecution case suffers from inherent defects which are irreconcilable as it is.

The guidance is sought from the binding decisions of the august Supreme Court of Pakistan in cases titled “Ikramullah and others Vs. The State” (2015 SCMR 1002), “Akhtar Iqbal Vs.

The State” (2015 SCMR 291) and “Muhammad Hussain Vs.

The State” (2008 SCMR 345). The august Supreme Court of Pakistan in the case of “Muhammad Mansha Vs. The State” (2018 SCMR 772) has enunciated the following principle:

“Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).”

It is important to note that according to established principle of the criminal administration of justice, once an acquittal is recorded in favour of the accused facing criminal charge, he enjoys double presumption of innocence, therefore, the court is competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The

Crl. Appeal No. 360 of 2015 said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as “Ghulam Sikandar and another Versus Mamaraz Khan and Others” (P L D 1985 Supreme Court 11) wherein it has been held as under:

“The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however. the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.”

Reliance is placed on the case of “Muhammad Inayat Versus The State” (1998 SCMR 1854) wherein it has been held as under:

“The judgment of acquittal qua Muhammad Yousaf, Muhammad Sated and Muhammad Nawaz cannot, in the given situation, be termed as perverse or foolish inasmuch as the view having been taken by the High Court can possibly be taken for acquitting them in the peculiar facts and circumstances of this case. It cannot be said that the impugned judgment of the High Court acquitting Muhammad Yousaf and two others is fanciful, artificial, shocking or ridiculous. 1t is based on convincing reasons” The august Supreme Court of Pakistan in the case of “Mst.

Sughran Begum and another Vs. Qaiser Pervaiz and others” (2015 SCMR 1142) has held as under:

“On acquittal, an accused person earns twofold innocence particularly, in the case when there are concurrent findings to that effect by the trial Court and the Court of First Appeal (High Court), is the bedrock principle of justice. In a case of acquittal, the standard and principle of appreciation of evidence is entirely different from that in a case of conviction. Unless the concurrent findings of the two Courts below are found perverse, fanciful, arbitrary

Crl. Appeal No. 360 of 2015 and are based on misreading and non-reading of material evidence causing miscarriage of justice, the Supreme Court would not lightly disturb the same because on reappraisal, another view might be possible therefore, sanctity is attached under the law to such concurrent findings in ordinary course.”

7.In view of the above, the conclusion arrived at by the learned Magistrate, Shujaabad vide judgment dated 19.03.2015 has been found by this Court to be such that any court could have arrived at the same upon a fair assessment of the evidence available on the record. In these circumstances, this Court has found no occasion of interference with the impugned judgment of acquittal passed by the learned Magistrate, Shujaabad in respect of respondent No.2 namely Manzoor Hussain. Hence, this appeal fails and is hereby dismissed and the notice issued to the respondent No.2 namely Manzoor Hussain is withdrawn.

(SADIQ MAHMUD KHURRAM)

JUDGE

Rashid Approved for Reporting

Judge