NOOR AHMED S/O HAJI KHAIR MUHAMMAD (Appellant) VS ASSADULLAH S/O GHULAM FAROOQ & ANOTHER (Respondent)

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IN THE HIGH COURT OF SINDH, I(ARACHI

Presenl.:

Mr.Justice Mohammad Karim Khan Agha

Cr. Acq Appeal No.296l2OL3

Noor Ahmed l-

Asadullah and another

Date of hearing 06.06.2017 Date of .judgment 06.06.2016 Appellant Through Mr. Shahzad Qamar Abbas advocate Asadullah, Respondent No. 1 Through Mr. Hakim Ali Khan, Advocate Thc State Tlrrough Mr. Zafar Ahmed l(ha r r .

Addl. P. G

JUDGMENT

MUHAMMAD KARTM KHAN AGHA J:- Initiall.y 1lrc accused/Respondent Asadutlah son of Ghulam Farooq (tlr'' Y Respondent) was convicted by the learned Ist Judicial Magistrate.

Karachi trast vide judgment dated 25.O2.2OI2 in respect o[ offenses under section 489 (F), 448, 506 (B) PPC. 'Ihereafter, tlrr:

accused/Respondent preferred criminal appeal No.7 /2012 agaitt:;l the aforesaid judgment before the learned Sessions Judge, I(arar:lri East, who afterhearing the parties had allowed the appeal a.ncl 1lr'- conviction and sentence recorded against the Respondent was sel aside and he was acquitted from the charge by Judgment datc.l -1. 19-O9-2O13 (the impugned judgment) by extending ths $er-I6fi[ ,l the doubt.

2.Tlire appellant Noor Ahmed son of Flaji Khair Muhammed beirrq dissatisfied with the impugned judgment has cl"rallenged the satrrc through this instant appeal against acquitta.l. w

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3.The brief facts of the prosecution case as per contents of thc FIR are that there were business terms between the Responderrl and the appellant and they were running business in the name ()l Zamzama Hotel and Zamzama Bakery and had also purchasecl certain properties jointly being partners. The Respondent was

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tenant in respect of his shop No. 1 situated on Plot No.N-3685, Metrovil Block-III, Scheme No.33 and was under obligation to havc paid an amount of Rs.2,34,000/- out of which Rs.4O,00O/- havc been paid by him but remaining amount of Rs.2,32,000/- has not been paid and on demand he used to abuse the appellant willr filthy language and itt pursuance of the said rent the Respondctrt issued cheques which were bounced. The Respondent was trol paying the electricity bills, therefore, he was served notice for his ejection but he also occupied the adjacent shop owned by tlre appellant. The Respondent also collected money for publishing ol Tafseer Quran, which was taken by the Respondent on the pretcxl of payment of certain prolit but he failed to fulhll his commitment to the appellant hence the appellant lodged the aforesaid I"lR against him under section 489 (F), 448, 506 (B) PPC.

4.The appellant in this appeal against acquittal has mainly contended that the trial Court has acquitted tl-rc Respondent/accused without appreciating the evidence irr accordance with the settled principles of law and that there has been a misreading and non reading of evidence which requires the impugned judgrnent to be set aside by this court. On the othcr hand the Respondent has submitted that the impugned judgemerrl is in accordance with law and that there are no legal infirmities which justify it being interfered with. Learned counsel for the Stal,' supported the arguments of the Respondent.

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5.I have heard learned counsel lor the appellant' Respondetrt ' Addl. prosecutor General, examined the entire evidence availabl" ('l on record and the irnpugned judgment with the able assistance learned counsel for the parties and have considered the relevatrt case law

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6.It appears that the trial Court through the impugltc'I judgment has mainly acquitted the respondent for the followin;i reasons as set out in the impugned jtrdgment below;

Now the point remains only for consideration of bounce ol alleged .h"que passed ot' to the complainatrt by lhc app[llant' Tlie complainant Noor Ahmed in his statemetrl before the trial Couri has not disputed about the partnershilr in between complainant and appellant and running of joitrt business as weli as purchase bl ptop"tty jointly' The sairl admission ol the complainant in his statement before llrr' learnecltrialCourtis.ofmuchsignificarrceandrelevant|., the present case as such it has becn born out from I'lrc record that there was partnership and business trausactiorr between them and p.W. Noor Ahmed in his statement ha:r candidly admitted to have received Rs'4O,0O0/- from tlrc appellant. [Ie has also admitted that accused had given tu'r' .iriqr." amounting to Rs.i3,0OO/- and Rs'16,000/-.and irr

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his Last line of the Examination in chief he has also admittcrl t.hat accused had returned an amount of Rs.40,000/-. Ilr' has also arlmitted the partnership in P'C'O' namely Noor Customer and, Zam Zam Bakery and Zam Zam Hotel whir:lr isofveryimportantnatureunderthecircumstancesof[:lrc case.

He has also admittecl to have purchased trrvo shops from lri:' previous owner Muhammad Iqbal Soornro and the appellatrl irave paid half payment

of Rs.33,40,000/- to the-seller ir' .""p."t of two "hop". He further admitted in cross examination that accused had given htm 3 cheques arr<l has paid an amount of Rs. 1I',OOO/- to him and he lrnrl retuined the saicl bounced cheque of Rs.1L,OOO/- to hirrr. He has further admitted ln cross examination that thc total amount of 3 cheques comes to Rs.4O,OOO/- antl that the said amount of Rs.4O,OOO/- has been paid t<r him by the accused as per first part of hls examinatlo'r in chief. He further admltted in cross examlnatlon that he has not served any letter on the appellant for returrr of the loan amount nor filed suit for recovery of the sairl amount. He further admitted in cross examlnation thrri he lodged the FIR aflter quarrel took place in fusfqrqcrr hlm and accused in respect of the property whiclt admission also shows that the dispute arose in betwec'r them on the point of certain propertles owned by both "f them. The statement of the complainant ls therefirrr full of discrepancies which shows that there was tlvah ',' in between him and accused because of dispute over lltc properties which they had purchased during the corrrc" v'(t

to93 of partnership business' Admittedly the complainant Noor Ahmed cnarged the appellantregardingit"l:1"j^:t two cheques amounting to Rs'-l3rOOO/- and I(8'ro'ut'w/- and third cheque of Rs."l1,OOO/- accordlng to him he had returned to the appellant on receipt ,of cash of cheques Rs.11,OOO/-. fne agit"gate amount- of all these us received.

comes to Rs.4o,ooo'/"- *:hitrt he had already reglstratiorr per his evidence as discussed above' as such of FIR is very rneaningful and seems to hawe beetr reglstered for some ufierior motive' The rvitncs:'

/- thc payme rt1 examined by the complainant has also-admitted o[ aggregag. or,-,orrii'oi Rs'40,00o/- by D'w' Ali Al"'t"d t.'

Muhamm;t'l Muhammacl Sicldiq son of complainant ancl P'W' and hc S;iltq has also n.",-,-"""*lt'ea Uy the cornplainant from thr' also a.dmittecl to have received Rs'40'0OO/- has rtl::'r appellant. The appellant in his statemcnt on oath said, l well worded about fuyrn.rrt of Rs.40,000/- against tt-r llr' .tr"qr"" by clcposirrfihat hc-lrad-.givcrr 'j chcclttcs same t i.rr..rt oi ite .o*p1.'irt.,t for handii'g ou"t.the had no moneyltl-:lrr .l*pl"i"""t and also informed him that he tlrc his account and hJ d"o ."q..""ted him not to present o[ in bank and-later o'h" had given cheque flrflounl "fr"q"" the sr'rir.l n".+O,OOO7- to Ali ahined and complaitrant received amount. The sarne assertion has been made by him on lrr statement on oath which has not been controverted cross examination. He has also examined D'lV' 2 nli Ahmed who has also made the similar assertlorr by the regarding payment made to the complainant appellant.

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D.W. Ali Ahmecl has been cited by thc prosecution as hn:'

but he has not been exarnined ty the prosecution ancl witness att'l b.", giu"., up vide statement Ex'0 being lormalwho the afpella,ri hr" examined him as D'w' 2 has rrot rtrppoitua the case of the prosecutlon which the al:r' snitl aclverscly rcflect ou the case of the prosecution' All eviclencc has not becn corrsiqlcretl in its tnrc pcrspccl!"' by the learned trial Court while recording conviction antl sentence agalnst the aPPellant.

From the discussion of the evidence it has therefcrrc emerged out that there was a partnershlp between- thc partiJs which culminated in dlspute over transfer of Iha the complainant |roperties which has been admitted by therefore' iloo, Ahmed in his statement, falst' implication of the appellant could not be ruled orrt specially when the complainant has admitted the receipl: oi proceed of alleged bounced cheque wlthout *:tl' proiest. Thcreforef in my humble opinion tlrc Lomplainant has failed to establish his case beyond nrry reasonable doubt as such the findlngs of the learned trial Court could not be sustained. (bold adclecl)

7.lt is settled law that judgment of accluittal shoulcl nol lr'' interjected until findings are pelverse, arbitrary, foolish, artificirrl' speculative and ridiculous as held by the Honorable supremc court in the case of The state v, Abdul Khaltq and others (Pl,l)

/oq q 201i Supreme Court 554). Moreover, the scope of interference ttr appeal against acquittal is narrow and limited because in zut acquittal the presumption of the innocence is significantly added to the cardinal rule of criminal jurispruclence as the accused shall lrr:

presumed to be inttocent until proved guilty' In other words' thc presumptlon of innocence ls doubled as held by the Honourablc Supreme Court of Pakistan in the above referred judgment' Thc relevant para is reproduced hereunder:-

"16. We have heard this case at a considerable lengllr stretching on quite a nurnber of dates, and with the ablc assistanci of ihe learned counsel for the parties, havc thoroughly scanned every material piece of evidencc available on the recorcl; an exercise primarily necessitaterl with reference to the conviction appeal, and also to ascertairr if the conclusions of the Courts below are against thc evidence on the record and/or in violation of the law' In artv event, before embarking upon scrutiny of the variotts plca:' of law and fact raised fiom both the sides, it maytlrc bc mentioned that both the learued counsel agreed that criteria of interference in the judgment against acquittal is not the same, as against cases-involving a couviction' In this behalf, it shall bJ relevant to mention that the followirrg r( precedents provide a fair, settled and consistent view of thc superior courts about the rules which should be followed irr such cases; the dicta are:

Bashir Ahmed v. Fida Hussain and 3 others (201o SCMR 495), Noor Mali Khan v. Mir Shah Jehan atrtl atrotlrer (2005 PCT.LJ 352), Imtiaz Asad v' Zain-rtl' Abidin and another (2005 PCT.LJ 393), Rashid Al-rmerl v. Muhammad Nawaz and others (2006 SCMR 1152)' Barkat Ali v. Shaukat Ali and others (2004 SCMI'I 249}, Mulazim Hussain v. The State and another (201() pCr.f.J 926), Muhammad Tasweer v. Haftz Zulkartrairr and 02 others (PLD 2009 SC 53), Farhat Azeem t'' Asmat Ullah and 6 others (2008 SCMR 1285), Rehrrrrl Shah ancl 2 others v. Amir Gul and 3 others (1995 SCMR 139), The State v. Muha-mmad Sl-rarif ancl ll others (1995 SCMR 635), Ayaz Ahrned and another v' Dr. Nazir Ahmed and another (2003 PCr' LJ 1935)' Muhammad Aslam v' Muhammad Zatar and 2 othcrs (PLD lgg2 SC 1), Allah Bakhsh and another v dhrrl.* Rasool and 4 others (1999 SCMR 223), Najrr{ Saleem v. Lady Dr. Tasneem and others (2004 Yt'ri 407), Agha Wazir Abbas and others v. The State anrl others (ZOOS SCMR 1175), Mukhtar Ahmed v' Tlr<' State (1994 SCMR 2311), Rahirlullah Jan v' I(ashil and another (PLD 2008 SC 298), 2OO4 SCMR 2'l(), Khan v. Sajjad ar-rd 2 others (2OO4 SCMR 215), Shafique Ahn-rad v. Muhammad Ramzan and anothor. (1995 SCMR 855), The State v. Abdul Ghaffar (19ot' v/ l'

lbqi SCMR 678) and Mst. Saira Bibi v. Muhammad Asil and others (2009 SCMR 946).

From the ratio of atl the above pronouncements arrrl those ctted by the learned counsel for the parties, it can be deduced that the scope of interference ln appenl agalnst acquittal is most narrow and limited, because in an acquittal the presumption of innocence is slgnificantly added to the cardinal rule of crlminal jurlsprudence, that an accused shall be presumed to bc I innocent is doubled. The courts shall be very slow lrr lnterfering with such an acquittal Judgment, unless it i:r shown to be perverse, passed in gross violatlon of law. suffering from the errors of grave misreading or nolr reading of the evidencel such judgments should not be lightly interfered and heavy burden lles on the prosecutlon to rebut the presumptlon of lnnocence which the accused has earned and attained on account of his acquittal. It has been categorically held ln a plethora of judgments that lnterference in a judgment of acquittal is rare and the prosecution must show thal. there are glaring errors of law and fact commltted by tho Court in arrivlng at the declsion, whlch would result lnto grave miscarrlage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusiorr has been drawn. Moreoaer, ln number of dlctums o/ this Court, it hqs been categortcaflg lqld doun that suclt Jud.gment should not be lnterJected untlt the tlndlnos qre peruerse, arhitrary, foollsh, artlflclal, speculatittc qnd. rldlculous (Emphasis supplied). The Court of appenl should not interfere simply for the reason that on the rc- appralsal of the evidence a different conclusion corrlrl possibly be arrived at, the factual concluslons should nol be upset, except when palpably perverse, suffering frorn serious and material factual lnfirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) ar<l Muhammad ljaz Ahrnad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in tlrc findings of the Courts below. It is, therefore, expedient atrrl imperative that the above criteria and the guidelines shorrl,l be followed in deciding these appeals." (bold and itali(':r added)

B. Having gone through the evidence and tl"re impugnerl judgment I find that there has been no misreading or non reaclirrfi of evidence, that the impugned judgment is based on soun<l reasons and there is no question of the findings in the impugnerl judgment being perverse arbitrary, foolish, artificial, speculativ<: and ridiculous especially as it is a well established principle of law that the accused is always entitled to the benefit of the doubt irr criminal cases and as was held in the casc of Tariq Pervez V/s. u/

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The State (1995 SCMR 1345), where the Honourable Suprcrrrc Court has observed as follows:-

"It is settled law thot it is not rlecessary that there should. mang ciranmstances creating doubts. If there i:' a single ciranmstantce, which creqtes reasonable doubt in a pntdent rnind about the guilt of the accused, tlrcrr the accused will be entitled to the beneJit not as a- matter of grace and concession but as a rnatter of righl

9.As such in my view there is no merit in the instant appe al against acquittal. The Acquittal recorded by trial court in favorrr of Respondent is based upon sound reasons, which require ntr intcrference at all. As such, the instant appeal against acquittal is dismissed.

10.These are the reasons for my short order of even date.

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