' KHALID MEHMOOD KHAN, J.---The petitioner is involved in case F.I.R. No, 381 dated 1-11-2010 registered under sections 419/420/ 468/471, P.P.C. Of Police Station Oghi District Mansehra. Vide judgment and order of the learned Judicial Magistrate Oghi, dated 13-5-2010, the accused petitioner was convicted and sentenced to one year' R.I. And fine of Rs,3,000 in default of payment of fine, to suffer 3 months' S.I. On each account. Against the said order, the petitioner filed an appeal which was dismissed, vide order of learned Additional Sessions Judge, Oghi dated 3-11- 2010, hence the petitioner has filed the instant quashment petition under section 561-A, Cr.P.C.
Before this court.
2. Brief facts of the case are that the petitioner was involved in case F.I.R. No, 381 dated 1-11-2010 registered under sections 420/468/471, P.P.C. Of Police Station Oghi, Mansehra and the petitioner was convicted by the learned Judicial Magistrate as stated above. The petitioner filed an appeal which was also dismissed, hence the present quashment petition before this court.
3. The learned counsel for the petitioner contended that petitioner is neither the beneficiaries of bargain struck down between the omplainant/respondent and accused. The petitioner had neither issued any cheque nor he has any concern regarding bargain. He further argued that the opening card in which specimen signature of the petitioner was available had not taken into custody by the I.O. Nor along with cheque said card had been sent to laboratory for getting the expert opinion regarding signature of petitioner. No deed or pro note has been executed between the accused petitioner and complainant for any bargain. He also argued that F.I.R. Is based on application moved by the complainant/ respondent but in his statement recorded before the trial court he dishonestly improved his statement. P.W.3 manager had also admitted that neither cheque was produced the complainant nor by the petitioner. He further argued that case of prosecution is full of contradictions and deliberate and dishonet improvement and record which has been sent for the first time in trial, was not produced during the course of investigation. He also argued that complainant filed a civil suit for recovery of amount mentioned in the impugned cheque but the suit of the complainant was dismissed up to the High Court but both the courts below have not appreciated this material and legal aspect of the case.
4. From the other side, the learned counsel for the respondent/ complainant argued that though civil suit based on disputed cheque has been dismissed by the High court but the same does not bar the prosecution of the present case. P.W.3 manager of the bank who is disinterested witness has supported the version of the complainant. The improvements made in the statement of complainant are natural and explanatory nature which does not affect the case of prosecution.
The case is based on cheque issued by the petitioner and same was dishonoured which is sufficient proof against the accused for commission of offence. He further argued regarding the maintainability of instant petition because judgment of learned appellate court cannot be challenged through present petition.
5. The State counsel adopted the arguments advanced by the counsel for the respondent.
6. Arguments heard and file perused. My finding is as under:--
7. It is admitted fact that no bargain between the complainant and accused had been struck down. There is nothing on record that whether any deed or pro note has been executed between the parties. The F.I.R. Is based on written complaint and application of respondent/complainant which is 1-1/2 pages whereas during his examination-in-chief the respondent had made deliberate and dishonest improvement to fill up the lacuna of his case. Prosecution had advanced no explanation regarding the said improvements. Moreover, during the trial and examination of the respondent, the documents were produced and exhibited for the first time which were not produced during the course of investigation which is material irregularity and the same documents have no value in the eye of law.
8. So far question of issuing of cheque is concerned, the I.O. Had not taken into possession the card wherein the specimen signature were obtained by the bank manager at the time of opening of his account. The prosecution has also failed to get the expert opinion from laboratory for comparison of the signature of. Petitioner on the cheque as well as in account opening card. Though, the stance of the prosecution that civil and criminal liabilities can be considered at different footing but in the present case, huge amount of Rs,18,53,146 is involved and as suit for recovery of the said amount has been dismissed up to High Court which is sufficient to give benefit of doubt to the petitioner.
The respondent in his own statement had deviated from his written complaint and given different story for the first time during the trial which amounts to dishonest and deliberate improvements, the same is fatal for the prosecution case. Except the statement of complainant, prosecution had failed to prove the time and place and in whose presence the disputed cheque was delivered to complainant. Both the learned courts below had wrongly relied upon the solitary statement of complainant/respondent and documents produced for the first time during trial the same were wrongly exhibited by the trial court. Prosecution cannot produce document without notice to appellant during the trial as accused has a right to examine the prosecution record which it intends to produce during the trial against the accused. In the present case, documents Exh.P.W.6/3 and 6/5 were produced without notice to the appellant nor any permission from the trial court was obtained. Hence, the same documents have no value in the eye of law.
9. So far question of maintainability of petition is concerned, in this regard reference can be made to a case titled "Musa Khan v. The State" reported in PLD 1983 Peshawar 76, wherein a similar petition was entertained and also another case titled "Anand Ram v. Moti Ram and others" reported in PLD 1987 Quetta 230.
10. As the case of prosecution is full of contradictions, dishonest improvements and material contradictions and non-availability of any other independent witness for corroboration of prosecution. The production of documents without notice to appellant and that too without permission of trial court is illegal, against equity and justice. The dismissal of recovery suit of respondent are the grounds which have created clouds of doubt.
11. For what has been stated above, the judgment of the learned courts below is set aside and the accused is acquitted from the charge. The accused petitioner is already on bail, therefore, his sureties are absolved of the liabilities of the bail bonds.