489-F Trile

489 Trile. from accused . Acquital

 

2010 S C M R 806

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Ramday, Mahmood Akhtar Shahid Siddiqui and Rahmat Hussain Jafferi, JJ

MUHAMMAD SULTAN----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No.233-L of 2009 in Criminal Petition No.546-L of 2009, decided on 15th December, 2009.

(Against the judgment, dated 15-5-2009 of the Lahore High Court, Lahore passed in Criminal Revision No.226 of 2009).

(a) Penal Code (XLV of 1860)---

----S. 489-F---Dishonouring of cheque--Criminal proceedings, initiation of---Pre-conditions.

If following conditions are fulfilled and proved by prosecution, only then provisions of S.489-F, P.P.C. are attracted:

(i) issuance of cheque;

(ii) such issuance was with dishonest intention;

(iii) the purpose of issuance of cheque should be:

(a) to re-pay a loan; or

(b) to fulfil an obligation (which in a wide term inter alia applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds a person to some performance).

(iv) on presentation, the cheque is dishonoured.  

(b) Penal Code (XLV of 1860)---

----S. 489-F---Dishonouring of cheque---Valid defence.

Accused can take a valid defence, if he proves that he had made arrangements with his bank to ensure that cheque would be honoured; and that the bank was at fault in dishonouring the cheque. If accused establishes such two facts through tangible evidence and that too after prosecution proves ingredients of offence, then the accused is absolved from punishment.  

(c) Penal Code (XLV of 1860)---

----S. 489-F---Reappraisal of evidence---Dishonouring of cheque---Scope---Steeling of cheque---Insufficient balance---Accused did not dispute his signatures on the cheque in question---Plea raised by accused was that his signed cheque was stolen from his cheque book---Validity---It was against natural conduct that a person would keep blank signed cheque in his cheque book---Defence witness stated that when accused filed application for stopping of payment of cheque in question, at that time accused had only a balance of Rs.300, in his account; in the application to stop payment of cheque, accused did not take the plea that his cheque book was stolen or that a cheque from the cheque book was missing---Supreme Court declined to interfere in concurrent findings of courts below resultantly conviction and sentence was maintained---Appeal was dismissed.  

Ch. Muhammad Rafique Warraich, Advocate Supreme Court for Appellant.

Syed Ali Imran Shah, D.P.-G. for the State.

Khalid Aseer Chaudhry, Advocate Supreme Court for the Complainant.

Date of hearing: 15th December, 2009.

JUDGMENT

RAHMAT HUSSAIN FAFFERI, J.--- On 21-3-2005 at 8-50 a.m. the complainant Noor Muhammad lodged the F.I.R. at Police Station Kotwali, Faisalabad alleging therein that there was a business dealing between him and the appellant for supply of kitchen towel cloths. In pursuance of the said dealing an amount of Rs.33,72,038 was outstanding against the appellant. In order to satisfy the claim the appellant issued a cheques of Rs.25,00,000 dated 26-2-2005 which was presented before the bank but it was dishonoured on 28-2-2005. After investigation the police challaned the appellant in the Court where he was tried and convicted for offence punishable under section 489-F, P.P.C. and sentenced to three years' R.I. and fine of Rs.15000 or in default thereof to suffer imprisonment for one month with benefit of section 382-B, Cr.P.C., vide judgment dated 15-7-2008 of Judicial Magistrate (Section 30, Cr.P.C.), Faisalabad. The appellant preferred an appeal and criminal revision before the Sessions Court and High Court, respectively but the same were dismissed. Therefore, the appellant filed the petition for grant of leave to appeal. The leave was granted on 29-6-2009, hence the present appeal.

2. Section 489-F, P.P.C. reads as under: ---

"Dishonestly issuing a cheque---Whoever dishonestly issues a cheque towards repayment of a loan or fulfilment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheques would be honoured and that the bank was at fault in not honouring the cheques."

A perusal of section 489-F, P.P.C. reveals that the provision will be attracted if the following conditions are fulfilled and proved by the prosecution: --

(i) issuance of cheque;

(ii) such issuance was with dishonest intention;

(iii) the purpose of issuance of cheques should be:---

(a) to repay a loan; or

(b) to fulfil an obligation (which in wide term inter alia applicable to lawful agreements, contracts, services, promises by which one is bound or an act which binds person to some performance).

(iv) on presentation, the cheques is dishonoured.

However, a valid defence can be taken by the accused, if he proves that: ---

(i) he had made arrange meats with his bank to ensure that the cheques would be honoured; and

(ii) that the bank was at fault in dishonoring the cheque. 

If the accused establishes the above two facts through tangible evidence and that too after the prosecution proves the ingredients of the offence then he would be absolved from the punishment.

3. The learned counsel for the appellant has argued that the appellant's cheques book was stolen, therefore, the complainant himself filled in the cheques of Rs.2,5,00,000 but on 26-1-2005 one month before its presentation the appellant moved an application before the bank for stopping the said cheques. He has further stated that the stand of the appellant has been supported by the employee of the bank, who was examined as D.W.1.

4. Conversely, the learned counsel for the complainant has stated that the appellant had issued the cheque with his signature; that the appellant has not denied the signature on the cheque; that a contrary stand has been taken by the appellant in his statement recorded under section 342, Cr.P.C. than the above stand; that the case has been fully proved against the appellant, therefore, the concurrent findings of Courts below do not require any interference by this Court. The learned DPG has supported the arguments of learned counsel for the complainant.

5. Having heard the learned counsel and perusing the record of the case, we find that there was business transaction between the complainant and appellant. Prosecution alleged that in order to satisfy the claim of the complainant the appellant issued the cheque. Such fact has been proved from the evidence of P.Ws. Without touching the factual aspect of the case, the learned counsel for the appellant has simply argued that the appellant's cheques book was stolen and the complainant filled the cheque. Such plea has not been supported by his own statement under section 342, Cr.P.C. In response to a query, the learned counsel for the appellant has stated that the appellant kept the signed cheque which was stolen and used by the complainant. Thus the appellant has not disputed the signature on the cheques in question. It is against the natural conduct that a person would keep a blank signed cheque in the cheque book. Furthermore, D.W.1 has stated that on 26-1-2005 an application was filed by the appellant for stopping the payment of the cheque and that at that time the balance in the account of the appellant was Rs.300 only. We have perused the said application from which we find that the appellant did not take the plea that his cheque book was stolen or that a cheque from the cheque book was missing. It appears that balance in the account of the appellant was Rs.300 only at the time when the application was moved as such it does not appeal the common sense that the appellant would request the bank to stop the transaction when there was meagre amount lying in the account.

6. After considering the material available on record, we are of the considered view that the concurrent findings of the Courts below do not call for interference. The appeal has no merits, therefore, the same is dismissed.

M.H./M-10/SC                                                                                    Appeal dismissed.

489 Trile. from accused . Acquital

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.

HBT/225/P                                                                                          Appeal dismissed.

489 Trile. from accused . Acquital

2013 Y L R 695

[Sindh]

Before Sadiq Hussain Bhatti, J

FAHIM AHMAD---Appellant

Versus

ABID HUSSAIN and another---Respondents

Criminal Acquittal Appeals Nos.512 and 513 of 2010, decided on 22nd October, 2012.

(a) 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, dismissal of---Appreciation of evidence---Accused agreed to buy shops belonging to complainant and issued five post-dated cheques as consideration, out of which three cheques were dishonoured on presentation due to insufficient funds---Trial Court acquitted the accused giving him benefit of doubt---Accused contended that cheques in question had been obtained from him forcibly---Validity---Both parties had a bitter relationship with each other due to property issues and cases were pending between them---Relationship between the parties was strained to the extent that they levelled allegations of land grabbing against each other, but no case of such type was brought on record---Reading of evidence showed that right from the beginning, both parties were not sincere in fulfilling their obligations---Evidence brought on record was shaky and untrustworthy---Independent witnesses were not examined by the police---Complainant had failed to prove his case beyond shadow of doubt---Appeal against acquittal was dismissed in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S.417(2-A)---Appeal against acquittal---Interference by High Court---Principles---Interference by High Court in an acquittal judgment passed by Trial Court was unwarranted unless acquittal was arbitrary, fanciful, capricious, against the record or against any provision of law---Interference by the High Court could only be made where there was gross misreading of evidence amounting to miscarriage of justice or where Trial Court had disregarded material evidence or received evidence illegally---Acquittal of an accused could not be set-aside lightly in absence of any strong evidence.

            The State v. Nayar Mirza 1989 PCr.LJ 1005; The State v. Sikander Hayat 1989 PCr.LJ 1179 and  Muhammad Gulzar v. Adalat Hussain 2012 MLD 1321 rel.

            Pervez Iqbal Butt for Appellant.

            Amir Jamil Virk for Respondent No.1.

            Ms. Seema Zaidi, A.P.-G. for the State.

            Date of hearing: 11th October, 2012.

JUDGMENT

            SADIQ HUSSAIN BHATTI, J.---Through these two Criminal Acquittal Appeals Nos.512 and 513 of 2010, the appellant/complainant Fahim Ahmed has called   in   question   judgment   dated   11-10-2010 delivered by IInd Judicial Magistrate, Karachi West whereby the respondent/ accused Abid Hussain charged under section 489-F, P.P.C., issued two Cheque bearing No.0135471 for Rs.2,40,000 and another Cheque No.0128268 for Rs.3,50,000., vide F.I.R. No.125 of 2006 of Police Station Jackson, Karachi and Cheque No.028270 for Rs.50,000 dated 28-4-2006 in favour of the appellant/ complainant Fahim Ahmed vide F.I.R. No.267 of 2006 of Police Station Jackson, Karachi, as sale transaction of six offices situated at Mezzanine Floor, Sultan Center, Keamari, Karachi, West. Since the above said cheques were dishonoured at the time of presentation by the concerned Bank. During the trial, the respondent/accused Abid Hussain was given benefit of doubt and was  acquitted in both the cases.

            As both the appeals arise out of two F.I.Rs. bearing Nos.125 and 267 of 2006 of same Police Station (Jackson), the complainant, accused, prosecution witnesses and the property involved in these cases are common, hence, I intend to dispose of both of them by a single judgment. The trial Court had disposed of the above case by invoking section 235, Cr.P.C. by amalgamating them and tried as single cases leading case would have been F.I.R. No.125 of 2006 of Police Station Jackson, Karachi.

            The prosecution story as emerged from both the cases are that the appellant/complainant Fahim Ahmed lodged F.I.R. that he is residing in Keamari, Karachi and engaged in the business of Electronics having Electronic Shop in Jackson Market, Keamari, Karachi and is the owner of six offices situated at Mezzanine Floor, Sultan Center, Keamari, Karachi, West due to dispute between the Parties, the appellant/complainant Fahim Ahmed verbally agreed to sell  his said offices to the respondent/accused Abid Hussain for consideration of Rs.9,40,000 including Rs.50,000 towards maintenance and Rs.40,000 for electric meters. After negotiation, the respondent/accused Abid Hussain agreed to purchase the said offices in the sum of Rs.8,50,000 excluding maintenance charges, electricity and issued Acknowledge  Receipt in presence of witnesses against which respondent/ accused Abid Hussain issued five postdated cheques out of them three Cheques bearing No.0135471 dated 3-3-2006 for Rs.2,40,000, Cheque No.0128268 for Rs.3,50,000 and Cheque No.028270 for Rs.50,000 dated 28-4-2006, which were dishonoured on presentation before Allied Bank Limited, Keamari Branch, Karachi for insufficient balance.

            The Police as usual after registration of the above F.I.Rs. bearing 125 and 267 of 2006 took up the investigation and after completing the same sent up the accused before trial Court. During the trial proceedings, relevant papers as required by law were supplied to the respondent/accused Abid Hussain. Charges (Exhs.2 and 3) were framed against the respondent/accused Abid Hussain, who pleaded not guilty and claimed to be tried vide Exh.2-a and Exh.2-a respectively. The prosecution in order to prove its case, during trial, examined the following prosecution witnesses:--

(1)	P.W.1 Appellant/ Complainant Fahim Ahmed	Ex.3.
(2)	P.W.2 Azizur Rahman	Ex.4.
(3)	P.W.3 Allah Dad Niazi, Manager ABL	Ex.6
(4)	P.W.4 I/O of the case Inspector Saifullah Niazi,	Ex. 7

            Thereafter learned ADPP closed the prosecution side and given up the remaining P.Ws. vide Exh.8. Both trials commenced on the same date i.e. 5-12-2006. During the subsequent trial, the prosecution examined the same above named P.Ws. in the same order and the prosecution closed its side vide Exh.8.

            According to the learned counsel for the appellant/complainant Fahim Ahmed, he is resident of Baba Square and is running business of Electronics in Jackson Market, Karachi. He has six offices located at Mezzanine Floor, Sultan Center, Keamari, Karachi. The respondent/accused Abid Hussain is well known to him, who asked him if he want to sell his offices. The appellant/complainant Fahim Ahmed had agreed to sell his offices. Such deal was struck, transaction was reached in the sum Rs.9,40,000. Five Cheques, details of which have been mentioned, were given to him for various dates, out of which, three Cheques bearing No.0135471 dated 3-3-2006 for Rs.2,40,000 Rs.2,40000, Cheque No.0128268 for Rs.3,50,000 and Cheque No.028270 for Rs.50,000 dated 28-4-2006, which were dishonoured on presentation before Allied Bank Limited, Keamari Branch, Karachi for insufficient balance, as a result thereof, he lodged two F.I.Rs. bearing 125 and 267 of 2006 at Police Station Jackson, Karachi.

            Learned counsel for the appellant further contended that the P.W.2 Azizur Rahman (Exh.4) alias Farhan son of Abdul Rahman testified that he knew appellant/ complainant Fahim Ahmed and respondent/ accused Abid Hussain, as they belong to same community. He further stated that on 20-10-2005, appellant/ complainant Fahim Ahmed asked him that he was going to lodge a case against respondent/accused Abid Hussain, as he was a serious trouble for him and his tenants but on the advice, appellant/ complainant Fahim Ahmed agreed that instead lodging of cases, dispute be resolved by way of talks. Thereafter, appellant/complainant Fahim Ahmed went to the office of Anar Khan at Sultan Center, Keamari Karachi where Yaqoob Khan and Alam Zeb were also present and so also respondent/accused Abid Hussain. He initiated talks to settle the dispute once for all, which the respondent/accused Abid Hussain told that he was willing to purchase all six offices of appellant/complainant Fahim Ahmed to bring the dispute once of all. Final deal was struck at Rs.8,50,000 including Rs.50,000 as maintenance. Anar Khan had prepared receipt, which was signed along with Yaqoob Khan and Alam Zeb had also signed the same. After completing formalities Suites were distributed, keys and duplicate keys of the offices were handed over to respondent/ accused Abid Hussain. He further stated that later on appellant/complainant Fahim Ahmed came to him and informed him that cheques were issued by respondent/accused Abid Hussain were dishonoured by the concerned Bank. Thereafter appellant/ complainant Fahim Ahmed went to Police Station for registration of the F.I.Rs. In cross-examination, he had agreed that appellant/complainant Fahim Ahmed is his friend and knows to him since childhood. He further agreed that he visited police station only once after registration of the F.I.Rs. He denied the suggestion that respondent/accused Abid Hussain had neither purchased shops nor issued cheques and he also denied that he has deposed falsely on the instance of the appellant/ complainant Fahim Ahmed.

            He has further contended that P.W.3 Allah Dad Niazi Manager ABL (Exh.6) also deposed before the Court that on 12-3-2006 he was working as Manager, Allied Bank Limited, Keamari Branch Karachi. On that date two Cheques for Rs.240,000 and Rs.3,50,000 were presented by appellant/complainant Fahim Ahmed for encashment from Account No.5559-5. The same were verified but there was no balance in the said account. Likewise, Cheque No.028270 for Rs.50,000 was also presented by appellant/complainant Fahim Ahmed on  28-6-2006, but the same was also bounced/dishonoured due to insufficient funds.

            In the cross-examination, this witness/Bank Manager deposed that it is incorrect to suggest that no any application was received from the respondent/accused Abid Hussain for not entertaining the account.

            Finally, Investigating Officer of the case, P.W.4 I/O of the case Inspector Saifullah Niazi, (Ex.7) was examined. Thereafter, prosecution side was closed.

            According to the learned counsel for the appellant/complainant Fahim Ahmed, all witnesses have supported him and there is no dent in the prosecution evidence.

            Statement of the respondent/ accused Abid Hussain was recorded, as discussed above, examined himself on Oath and examined two DWs and their evidence was already discussed above.

            Learned counsel for the respondent/accused Abid Hussain has contended that he pleaded his innocence and claimed that false case has been initiated against him. The Cheques in question were forcibly taken under the threat of life and he was not willing to issue and as such he had submitted an application regarding the above act of the appellant/complainant Fahim Ahmed prior to the incident. The respondent/accused Abid Hussain further stated that since the property in question is owned by him, the appellant/complainant Fahim Ahmed by such act want to claim the property from him. The respondent/accused Abid Hussain pleaded his innocence and examined himself on Oath and repeated the same version as stated above. He further stated that the appellant/complainant Fahim Ahmed belongs to a Land Mafia Group and had illegally occupied one Plot and two Shops and so also his brother Nadeem Balouch. They are engaged in Ghunda Gardi and show of force and due to their highhandedness grabbed Rs.11,00,000 from his tenants and further reiterated that he and his family are the owners of the said property, appellant/complainant Fahim Ahmed in order to grab above money has also filed this false case. The respondent/ accused Abid Hussain further contended that the appellant/complainant Fahim Ahmed forcibly obtained these cheques from him with his signatures. He further stated that he informed the said act of the appellant/complainant Fahim Ahmed to the police and the concerned Bank officials. In the cross-examination, he stated that since no action was taken by police on his application, he did not approach Higher Authorities. He denied the suggestion that he moved application against the complainant party to save his skin from these cases. He admitted that previously he was Police Constable in Police Department. The respondent/accused Abid Hussain also examined Alam Zaib and Muhammad Ali as Defence Witnesses. DW-2 Alam Zaib testified that he was tutor of the uncle of the respondent/accused Abid Hussain. On 16-10-2005 at about 10-00 a.m., he went to the house of the respondent/accused Abid Hussain where appellant/complainant Fahim Ahmed, Nadeem Balouch along with three other unknown persons duly armed with TT Pistols were present and they asked respondent/accused Abid Hussain to hand over the cheques and electricity bills. He came between them and advised them to settle their dispute amicably, but they kicked him out thereafter he went to the uncle of the respondent/accused Abid Hussain and apprised him the facts as above. In the cross-examination to the prosecution, this Defence Witness admitted that the complainant side obtained signatures on the cheques in his presence. He also admitted that he went along with the respondent/accused Abid Hussain to police station to submit an application. He denied the suggestion of the Prosecution that he was not the tutor of the children of the accused side. In support of his case, respondent/accused Abid Hussain has examined DW Muhammad Ali testified that on 16-10-2005 at about 10-45 a.m., he was taking Tea in a Hotel situated at Sultan Center, Keamari, Karachi. At that time he saw appellant/complainant Fahim Ahmed, Nadeem Balouch and three unknown persons duly armed and then few minutes he heard hue and cries from Sultan Center, Keamari, Karachi. He went there where respondent/accused Abid Hussain and Alam Zeb were present in disturbed condition and on enquiry, they narrated that the complainant Party has snatched the cheques from him on gunpoint. In the cross-examination to the Prosecution, he stated that both the Parties were known to him since childhood. He denied the suggestion that he had deposed falsely in favour of the respondent/accused Abid Hussain due to friendship.

            Learned counsel for the respondent/accused Abid Hussain has mainly argued that ingredients of section 489-F, P.P.C. are not made out. The cheques were taken forcibly on gunpoint. All the witnesses have not fully supported the prosecution case. The specific signatures were not taken by the Investigating Officer of the case for comparison.

            On the other hand, Ms. Seema Zaidi learned A.P.-G. did not support this Criminal Acquittal Appeal and has stated that the judgments passed by the trial Court are just and proper after appreciating the evidence in accordance with law.

            Heard the learned counsel for the Parties and perused the entire material available on record with their assistance.

            After hearing the Parties at length and perused the entire evidence adduced, during the trial. Both the Parties are, no doubt, residing in the same locality but their relationships are bitter over the property issue. The cases are pending between them. Their relationships are so strained to the extent of levelling allegations of land grabbing, but strangely no such case was brought on record.

            In the present case, the respondent/accused Abid Hussain disclosing that he issued cheques but on gunpoint. From reading of the evidence, it is evident that right from beginning, the Parties were not sincere to fulfil their obligations, short lived gestures were shown. Evidence brought is shaky and untrustworthy. The independent witnesses were not examined by police. Scope of interference in an appeal against acquittal as compared to appeal against conviction, is somewhat limited. High Court may interfere in the judgment of the acquittal when it comes to the conclusion that the trial Court has disregarded the material evidence or misread the evidence or received evidence illegally or the judgment is against any provision of law. The above dictum is laid down in the case reported in 1989 PCr.LJ 1005  (The State v. Nayar Mirza).

            In another case reported in 1989 PCr.LJ 1179 (The State v. Sikander Hayat), wherein it has been held that acquittal order passed by the Court below is not to be disturbed until and unless it is shown to be perverse or manifestly wrong and has resulted in miscarriage of justice.

            In the case reported in 2012 MLD 1321 (Muhammad Gulzar v. the Adalat Hussain), wherein it has been held that appeal against acquittal-Principles Presumption of innocence - Presumption of innocence is attached with the accused after acquittal.

            It may be observed that interference by this Court in the acquittal judgment passed by the trial Court is unwarranted unless the acquittal is arbitrary, capricious, fanciful and against the record. Appraisal of evidence in an appeal against conviction is done strictly, but in an appeal against acquittal the same rigid method is not to be applied. Interference by this Court may be made only where there is gross misreading of evidence amounting to miscarriage of justice. It is well-settled principle of law that acquittal of an accused cannot be set aside lightly in absence of any strong evidence. Finding of acquittal not sacrosanct, if reasons are of speculative or artificial in nature or based on no evidence or misrepresentation of evidence or the conclusion drawn as to guilt or innocence perverse resulting into miscarriage of justice, this Court can interfere in the finding of acquittal.

            In the above circumstances, as placed hereinabove and the various dictum of the honourable Superior Court taken into consideration, I am of the opinion that the appellant has failed to prove his case beyond the shadow of doubt. Consequently, both the Criminal Acquittal Appeals are dismissed.

MWA/F-26/K                                                                                     Appeal dismissed.