2013 Y L R 2176
[Peshawar]
Before Qaiser Rashid Khan, J
MATIULLAH---Appellant
Versus
ISHAQ HAMAD and another---Respondents
Criminal Appeal No.34 of 2012, decided on 19th June, 2012.
Penal Code (XLV of 1860)---
----S. 489-F---Criminal Procedure Code
(V of 1898), S.417(2-A)---Dishonestly issuing a cheque---Appeal against
acquittal---Trial Court while recording the order of acquittal of accused, had
properly appraised and appreciated the evidence in its true perspective; and
impugned judgment did not suffer from any misreading or non-reading of evidence
calling for interference by High Court---When an accused was acquitted by a
competent court of law after facing the agonies and ordeal of a protracted
trial, then he would earn the presumption of double innocence which could not
be disturbed by Appellate Court, unless it was established through cogent and
tangible evidence available on record that such acquittal was fanciful,
erroneous, or had resulted into grave miscarriage of justice.
2004 SCMR 249; 2009 SCMR
288 and 2009 SCMR 946 rel.
Salimullah Khan Ranazai
for Appellant.
ORDER
QAISER RASHID KHAN,
J.---Being aggrieved of
the judgment dated
7-4-2011 of the learned Additional Sessions Judge-IV, D.I.Khan vide which he acquitted the accused/respondent in case
F.I.R. No.268 dated 4-7-2011 registered under section 489-F, P.P.C. at Police
Station City, D.I., Khan, the appellant has filed the instant appeal
under section 417(2-A), Cr.P.C.
2. Brief and essential facts
leading to the instant appeal are that through an application dated 14-11-2002,
the appellant reported that he had advanced an amount of Rs.4,00,000 as loan to
the accused/ respondent and the latter promised to repay the same on demand. On
repeated demands of the appellant, the accused/respondent delivered a
Cheque No.392358 for the
said amount which on presentation to the Bank of
Khyber was bounced
due to non-availability of the amount in Account
No.C-741 maintained by the accused/ respondent.
3. After completion of usual
investigation, complete challan against the accused/respondent was submitted in
the learned trial Court where he was formally charged to which he did not plead
guilty and claimed trial.
In order to
establish the guilt of the accused/respondent,
the prosecution examined five witnesses. Thereafter, the statement of the
accused/ respondent was recorded under section 342, Cr.P.C. wherein he
professed innocence and false implication. However, he neither appeared as his
own witness on oath as required under section 340(2), Cr.P.C. nor produced any
evidence in his defence. After hearing the arguments, the learned Judicial
Magistrate-I, D.I.Khan vide judgment dated 23-2-2010 convicted and sentenced
the accused/respondent. However, on appeal filed by the accused/respondent, the
learned Additional Sessions Judge-V, D.I.Khan vide judgment dated 20-4-2010
remanded the case for recording statement of the accused/respondent in presence
of his counsel and for decision afresh.
4. After remand of the case,
the accused/respondent was again examined under
section 342, Cr.P.C. He also recorded his statement on Oath and produced
three D.Ws as well. On evaluating the evidence brought on record and hearing
the arguments of learned counsel for the parties, the learned Senior Civil
Judge, D.I.Khan vide judgment dated 4-7-2011 convicted the accused/respondent
under section 489-F, P.P.C. and sentenced him to ten months' R.I.
5. Dissatisfied with the
judgment dated 4-7-2011, the accused/respondent preferred an appeal which was
accepted by the learned Additional Sessions Judge-IV, D.I.Khan on 7-4-2012, the
impugned judgment dated 4-7-2011 was set aside and the accused/respondent was
acquitted from the charges levelled against him, hence the instant appeal by the
appellant.
6. The learned counsel for
the appellant argued that the issuance of cheque by the accused/respondent and
the same being dishonoured by the bank was proved on record but the learned
appellate court failed to consider this aspect of the case and erred in
acquitting the accused/respondent.
7. I have considered the
arguments of learned counsel for the appellant and carefully perused the
record.
8. To establish the guilt of
the accused/respondent, the prosecution examined five P.Ws. A brief resume of
prosecution evidence is as under:--
9. P.W.1 is the statement of
Asmatullah Khan Inspector who submitted complete challan in the case.
Samiullah, officer of the Bank of Khyber appeared as P.W.2 and stated that the
accused/ respondent was holder of account in their bank who issued a cheque
amounting to Rs.4,00,000 to complainant which was dishonourerd on 13-11-2002.
P.W.3 is the statement of Sona Khan ASI, who formally arrested the
accused/respondent. Matiullah, complainant appeared as P.W.4 and reiterated the
story narrated by him in his initial application. P.W.5 is the statement of
Javed Ahmad Chughtai who conducted inquiry in the matter under section 156(3),
Cr.P.C.
10. As stated earlier, the
accused/ respondent recorded his statement on oath under section 340(2),
Cr.P.C. and stated that, "I had no relationship with Matiullah, the
complainant, and I have never obtained loan from him. I can take oath on Holy
Quran in this respect." He further stated that, "the Cheque in
question is bogus one as the alleged cheque bearing No.392358 is fictitious one
because other cheques of the same
series cheque book
were issued in the
year 1997 and to that effect the statement of Bank Official is very much relevant."
The statement of account Exh.D.W.3/1 spilled the beans as far as the alleged
dishonoured Cheque bearing No.392358 dated 13-11-2002 is concerned. The cheque
book was issued to the accused/respondent back in the year 1997 and whereas the
Cheques bearing Nos.392356 and 392357 were encashed as far as back as on
28-10-1997 and Cheque No.392360 was encashed on 1-11-1997, it is beyond
comprehension as to how the Cheque No.392358 from the cheque book of the year
1997 stealthily found its way into the hands of the complainant, filled
in for an amount of Rs.4,00,000 dated as 13-11-2002 and then presented
at the counter of the Bank of Khyber for encashment. All this fiction has been
created with a bit of a degree of finesse to rope in the accused/respondent but
it failed to materialize in view of Exh.D.W.3/1. Keeping in view the statements
of P.Ws. and the accused/respondent recorded under section 340(2) Cr.P.C. in
juxtaposition, the statement of accused/respondent appears to be more
convincing and plausible. He also examined two D.Ws who remained his employees
during the days when he was running the business of medicines. Both the D.Ws
categorically stated that the accused/respondent had no relationship with the
complainant/appellant. Thus the learned trial Judge reached to a correct
conclusion while acquitting the accused/respondent.
11. By now it is settled law
that when an accused is acquitted by a competent court of law after facing the
agonies and ordeal of a protracted trial, then he earns the presumption of
double innocence which cannot be disturbed by the appellate Court unless it is
established through cogent and tangible evidence available on record that such
acquittal is fanciful, erroneous or has resulted into grave miscarriage of
justice. Reliance in this respect may also advantageously be placed on the
dicta handed down by the honourable Apex Court in 2004
SCMR 249, 2009
SCMR 288 and 2009
SCMR 946. The learned trial Judge while recording the order of acquittal has properly appraised and
appreciated the evidence in its true perspective and the impugned judgment does
not suffer from any misreading or non-reading of evidence calling for
interference by this Court.
12. For the reasons mentioned
above, the appeal in hand having no legs to stand upon is hereby dismissed in
limine.
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