MUHAMMAD RAMZAN S/O SHAH BAIG (Appellant) VS GHULAM ALI MALIK & ORS (Respondent)

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l I INq THE HIGFI COURT'CF SINDH AT HARACI{I CriminaL Acquittal APPeaI No.

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Muhamraad Ramzan , .te- l0- i/ 22t

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S/o Shah Baig, Muslim, adult, resident of House No.1516, Street No.3, u{,pury aoEijtr lJ,rdl.i I"l L,"): Sajjan Goth, Baldia Town, 'f Appellant/ ComPlainant Q ??' Karachi.......

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1 Ghulam Ali Malik S/o Ghuam Haq Muslim, adult, resident of District Ghotki

L. - iltodel Trial Magistrate-Il/ XXII Judicial Magistrate, fe"It1 x""""hi................ 'Respondents 2- tb^ 9.b, FIR No.58/2019 U/s 489-F PPC P.S. Jamshed Quarters Karachi

CRIMINAL A AL APPEAL

u/s 2-A oFs ECTI oN 417 cR.P.C.

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THE HIGH COURT OF SINDH AT I(ARACHI

Criminal Acquittal r\ppeal No.591 of 2021 [\,luhammacl Ratrzal vs, tihulam AIi NIalri' & Others] For Appellarrt: \1r. lvluhammad Dauti Nareio, ac{vocate For Respondent No.1: \Ir. Abdul Latif N'Iemon, advocate For State: NIr. Mumtaz Ali Shah, A.P.G. a/n' P.I. Akhtar Aziz,P.S. Jamshed Quartels.

Date of hearing: 07-03-20?)

Date of Judgmcnt: 07-03-201.5

l UDGMENT

bv the ]an Ali ]uneio, |'- The apPellant, being aggrieved judgrnent dated 24'09.2021' (here-in-after referred to as the "lmpugned Judgment"), passed bv the lealnetl ]udicia I Magistrate-Il/XXilnd (Model Tlial lUagistrate Court)' I(arachi- East (here-in-after referred to as the learned Trial Court)' has preferrecl tl-re instant criminal acquittal appeal' Througir the impugneci iudgment, thc accused Ghulam Ali Nlalak was acquittecl under Section 2 5$) of the Code of Criminal Procedure, 1898 inCriminal Case No' 878 of 2019' arising out of FIR No. 58/2019, registered at Police Station )amshecl Quarter,Karachi, under Sectior-r 489-F of the Pakistan Pen'-' i t'l:i r- C o c1 e 1 E 60.

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2.A5 per the prosecution, the cor-r-rplainant lv'luhammad & \)" Raruau , an emploYee at Dan'ood Engineering Universitv' had allegedly lent Rs. 2,000,000 to the accused, who r'r'as a travel

agent. the accusecl, failing to return the amount' issued a

clreque bearing No' 1634947166 ctated 07 J22077 ' rvhich was

st dishonorecl. Subsequentlv, tu'o additional cheqtaes amounting

to Rs.571.,000 /- and, Rs.30,000/- datecl 05'12'2018 rvere also dishonoredduetoinsufficientfunds'Consequentiv'the

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complainant lodged the FIR against the accused for dishonestly issuing iheques in violation of Section 489-F PPC.

3.The leamed trial court, after a full-fledged trial, acquitted the accused on the foilowing grounds:

i. The prosecution failed to Prove beyond a reasonable doubt that the accused had issued the disputed cheques dishonestly and under any legal obligation.

ii. ' The accused presented a valid defense that he had already transferred Rs. 850,000 via online banking to the complainant.

111 No independent witnesses or documentarY evidence were produced to substantiate the cornplainant's version.

1V. The complainant failed to rebut the evidence presented by the accused, includilg barrk records verifying the kansfer of Rs. 850,000.

Mere dishonoring of a cheque does not the \\ t.

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prosecution proves that it was issued under o

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4.The learned counsel for the appellant argued that thc prosecution successfirlly estabiished it; case beyond a reasonable doubt through oral and documentary dvidence. including the dishonored cheques a-nd bank memos. The complalnarit (PW-L) provided a consistent and confidence-

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inspirirg statement, corroborated by banl< oificials and documentary proof. It was conteuded that Section 489-F PPC creates a presuutption against the drawer of a dishonored cheque unless he proves that he had made prior arrangements for its clearairce. It is furtl-rei argued that rire accused faiied to t rebut this presumption and clid not provide any concrete evidence that he had arranged for funds in his bank account. It is furtirer argued that the issuance of multiple cheques, all dishonored, indicates a fraudulent scheme by the accused to deceive tlre complainant and evade his financial obligations. Ii there was no tiability, as claimed by the accused, why did he issue the disputed clleques in the first place? It is further contended tirat the trial Court misread and misapplied the Iaw, , failing to appreciate that mere denial by the accused is not t

sufficient to , rebut the prosecution's case. It is further emphasized that the kial Court gave undue rveight to the accused's claim of online transfer of Rs. 850,000, which was neither a full payment nor a vaiid defense. under Section 489-F PPC. It is further contended that the benefit of doubt carurot be extended to the extent of ignoring strong Pl'osecution evidence. l- r'

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.It is furtller argued that the hial court's reasoning for acquittal lt o ,was flawed and conh ary to settled principles of law, warranting interference by this Hon'ble Court. The learned counsel prayed for setting aside the Impugned iudgment dated 24.09.2021, and convicting the accused under Seciion 489-F PPC, awarding maximum punishn-rcnt of tfuee years imprisor-tment with fine, in light of the prosecrttion's overwhelming evidence.

5.The learned counsel {or respondent No.1 emphasized that once an accused is acquitted bir a trial court, he enjoys a double- presumption of ilnocence. It is further argued that the appellate court should not interfere unless the trial court's judgment is fouird to be perverse or based on misreading of

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evidence, It is further contended that the burden of proof always lies upon the prosecution, which failed to establish dishonest intention behind the issuance of cheques' He further contended that mere dishonoring of a cheque does not automatically constitute an offense under Section 489-F PPC unless it is proven that the cheque was issued for the repayment of a legaily enJolceable debt,or obligation' It is further argued that the accused had ah'eady transferred Rs' 850,000 to the complainant, r'r.4rich was verified by the bar"Lk record and confirmed by a witness' It is further contended that this transaction disproves dishonest intention, a key ingredient of Section 489-F PPC. He further contended that the complainant failed to produce any independent witness to support his claim that the accused owed him money. He ftuther contended that no written agreemer-lt, promissory note, or other proof of a legally binding financial transaction was brought on record, It is further arguecl that the complainant converted a civil dispute ir-rto a criminai case to Pressure the accused' He Gfi r' further contended that the corect legal remedy for thei' complainant was to Pursue a civil suit for recovery, rather than t- LL lodging a criminal case under Section 489-F PPC. in view of the above arguments, the learned counsel prayed ,'or the dismissai .9*S. of the appeal, rnaintaining the impugned Judgment of acquittal'

6.Tlte learned APG fully supported the arguments of the complainant's counsel ar-rd emphasized tllat: The triai court's decision was based on rnisinterpretation of law and erroneous . appreciation of evidence. Tire prosecution had successfully disc}rarged its burden by proving tirat the accused issued the disputed cheques dishonestly. The Appellate Court should set aside the acquittal, convict the accused, and impose a strict sentence to Prevent the misuse of banking

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tsi inskuments. The leamed ApG prayect for allowing the appeal, setting aside the acquittal, and convicting the accusecl.

7.After carefully considering the arguments put forth by tl're leamed counsel for the Appellan! the learned counsel for Respondent No.1, and the learned Assistant prosecutor General (APG) for the State, as well as thoroughly examinir,g the material on record witir due diligence, c€rtain fundamental legal principles must be acknowledgeci. It is the prosecution,s primary duty to establish the accused,s guiit beyond a reasonable doubt, as the accused is always presumed innocent urdess proven guilty. A review of the recorcr revears that trre prosecution failed to substantiate its ciaim that Responclent No.1 had issued the disputed cheques dishonesfly and under any legal obligation. On the conh.ary, Respondent No.1 provided a plausible defense, demonstrating that he had ' already hansferred Rs. g50,000 througl.r online banking to the Appellailt. This fact was further verified through bank records, which the.Appellant failed to rebut with any cogent evidence.

Furthermore, the Appellant dicl not produce j,,, independent

u- ,ji witnesses or any documentary proof to validate his allegations. o ]'In such circunstances, the mere dishonoring of a cheque does '" not automatically imply dishonesty, unless the prosecution conclusively proves ti.rat the cheque was issued under an enforceable financial obligation. Additionally, once an accused has been acquitted by a competent court ,of law, he benefits from a double presumption of inrrocence, which can only bc overfumed by strong and compelling eviclence. ln the present case, the piosecution,s failure to present credible, unimpeachabie, and con{idence_inspir.ing evidencg coupled with discrepancies in the Appellant,s case, the absence of independent wituresses, and the lack of proof of dishonest intent (mens rea), reilc-lers the case cioubtful. Uucter settled legal

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principles, when two interpretations of evidence ate possible' the one favoring the accused must be adopted' Therefore' the prosecution's case does not warrant interference with the acquittai of ResPondent No'1'

8.The Hon'ble Supreme Court of Pakistan in numerous judgments has consistently held that conviction cannot be based on presumptions ar-rd assumptions; rather, it must rest on clear, cogent, and convincing evidence' In the present case' the failure of the prosecution to establish the essential I ingredients of the alleged offence, coupled with contradictory testimonies, has rightly created doubts in the prosecution's vers10n.

9.Even on merits, the case against the respondent No.1/accused is not sustainable. The learned trial Court' after thoroughly evaluating the evidence, acquitted the accused by recording comprehensive findings based on contradictions and inconsistencies in the prosecution's case' Under the criminal jurisprudence, once an accused is acquii'red by the trial Court' he earns a presumptiou of itrnocence' In the Present case, the t! leamed trial Court rightiy acquitted the accused (Respondent No.1) based on material contradicr:ions, unreliable prosecution + t\ evicieuce, and faiiure to establisl'r the charge beyond a reasonable doubt. These factoi:s fully justified the acquittal of the accused. Since the appellant has not pointed out anv illegality, perversity, or misreading of evidence in the impugnecl judgment, this Court finds iro reason to iuterfere' Reference is made to the authoritative luling of the Honourable Suprenre Court of Pakistanin the case of Muhammad Riaz tt' Khurram Shehzad and another (2024 SCMR 51), whereitl tlre Apex Court unequivocallv upheld the principle that: "lt is n toell-settled expositiort of lau tlut in an altpeal against acquittal'

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tlu Court toould not ordinariltl interfere and zoould instead gitte due zoeight and consideratiott to tlrc .firdings of tlrc Court acquitting tlu accused ttthich carries a double ptesuntption of innounce, i.e. the initial presumption that an accased is innocent until found guilty, tuhich is tlrcn fortified by a second presumption the nssumption of iti'Locence, ahiclt

cliscussion, it is evident that the ed a well-i'e.isoned judgrr,er.t a{ter

carefully appreciating the evidence on record. The findings are basecl on sound legal principles, antl no illegalify, Pewersity, or misreading of evidence has been pointed out by the appellant to warrant interference by this Court. Accordingly, the instant Criminal Acquittal Appcai stands ciismissed, anci the Impugned Judgment of acquittal 24-09-2021' Passed by the leamed triai Court is uPheli,.

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