NAZEER AHMED LANGOVE, J.---The instant Criminal Acquittal Appeal is directed against the judgment dated 21st December, 2015 (hereinafter referred as "impugned judgment"), passed by Judicial Magistrate-I, Quetta (hereinafter referred as "the trial Court"), whereby the accused was acquitted of the charge in case FIR No,227/2013 registered with Police Station Civil Line, Quetta.
2. Brief facts of the case are that in pursuance of an application submitted by the complainant Abdul Haq son of Haji Raz Muhammad, the instant FIR No, 227/2013 was registered at Police Station Civil Line, Quetta, on 28th November 2013, wherein he alleged that on 1 1 th November 2009, one Imtiaz abro, brought a vehicle bearing registration No, AJH-561 at Dubai show room, situated at Joint Road, Quetta, for sale; that the appellant purchased the vehicle in question in consideration of Rs, 7,50,000/- (Seven Lacs Fifty Thousand Rupees); that in the meantime, the appellant sold out the vehicle in question to one Abdullah alias Abdul Bari; that on 18th November 2009, one Doctor Syed Muhammad Saleem, submitted an application to the Police, wherein he alleged that his vehicle bearing registration No, AJH-561 (vehicle in question), is missing, which was recovered from Abdullah alias Abdul Bari on 23rd March 2012; that the said Doctor Syed Saleem, Imtiaz Abro and Naseem Achakzai (the respondent No,1) with connivance of each other obtained the vehicle in question on superdari, whereas Abdullah alias Abdul Bari took back his amount from the appellant, hence this case. On completion of the investigation, the trial was commenced, which finally culminated into acquittal of the respondent No,1 vide judgment dated 21st December 2015 passed by Judicial Magistrate-I, Quetta.
3. Feeling aggrieved and dissatisfied from the judgment passed by the trial Court, the appellant filed the instant appeal contending therein that the judgment impugned passed by the trial Court is contrary to law, facts and principles of natural justice, as such, is liable to be reversed; that the trial Court has misappreciated the facts, misapplied the law and drawn a conclusion therefrom not available on the record, which caused miscarriage of justice.
4. On the other hand, the learned State's counsel strenuously opposed the appeal by submitting that the judgment passed by the learned trial. Court is based on proper appreciation of evidence; that it was a dispute of civil nature, but with mala fide intention was molded out into criminal liability, which too after about four years of the alleged transaction, as such, not believed by the trial Court rightly; that the learned counsel for the appellant has failed to point out any specific illegality or irregularity, misreading or non-reading of evidence in the judgment impugned warranting interference by this Court.
5. We have heard the learned counsel for the parties and perused the record with their assistance, which reflect that the instant case was registered on 28th November 2013, while alleged cheating was committed on 11th November 2009, meaning thereby that the FIR was registered after about four years, which in our considered opinion is sufficient to make the case of prosecution highly doubtful and stance of the complainant incredible.
6. In support of its case, the prosecution produced certain PWs PW-1 Abdul Haq is the complainant of the case, who appeared and reiterated the contents of application Expi 1-A, on the basis whereof, the instant case was registered. PW-2 Irshad Sultan is an alleged eye-witness of occurrence. PW-3 Muhammad Kamiran A.S.I witnessed the seizure of memo and took possession of the vouchers produced in the Court as Articles P-1 and P-2. PW-4 Syed Rai Haq Ali Shah S.I. is the Investigation Officer of this case, who visited the place of transaction and recorded the statements of witnesses. On completion of the investigation, he submitted challan Exp/4-A and 4-B, whereupon he identified the signatures of SHO.
7. Deep appreciation of evidence and its critical analysis show that the prosecution has failed to prove its case against the accused beyond shadow of reasonable doubt. It is manifest from the record and testimony of witnesses named above that it was a civil transaction between the parties and civil liability, if any, but altered into a criminal one. Definition of cheating is as under:--
420. Cheating and dishonestly inducing delivery of property.
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted inio a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
8. For the purpose of cheating, dishonest intention at the time of performing an act or promise is to be inferred from the document itself and not from subsequent non-fulfillment of the promise.
Offence of cheating is not committed if no deception is practiced. In the cases of cheating and dishonestly inducing delivery of property, state of mind is to be ascertained from the conduct of the accused and the surrounding circumstances. This section is applicable against a person who practices deception, fraud or dishonesty and thereby inter alia, induces any person to deliver any property or induces so deceived' to do or admit to do anything, which he would not do or omit, if he were not so deceived. The intention to deceive must exist at the time of inducement to deliver property, while in the instant case, no such ground is available to the petitioner, it was a matter of civil liability, initially tried to be resolved through personnel of same business, which is manifest from the statements of PWs available on the record, but not materialized for one reason or the other, on which, he approached the Justice of Peace by way of filing an application under Section 22-A, Cr.P.C, which finally was allowed, hence this FIR was registered. For constituting an offence of cheating and breach of trust, the fraudulent and dishonest mens rea/intention and inducemen, at the time of performing the act are essential ingredients. In this respect, onus lies on the prosecution to prima facie establish the aforesaid ingredients for taking cognizance in the matter. Mere denial of transaction and refusal to pay the money does not necessarily show criminal intention. The accused cannot be convicted merely on presumptions, unless proven guilty through reliable and confidence inspiring evidence, which is lacking in the matter in hand.
9. Needless to mention here that the defence is not required to create a series of dents and doubts in prosecution case, but for giving the benefit of doubt if a single doubt is created even then the defence is entitled to the benefit of doubt not as a matter of grace and concession, but as a matter of right. Reliance can be placed on the judgment title as Muhammad Akram v. The State Reported in 2009 SMCR 230. Relevant observation there from are reproduced below:- "The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must occur in favour of the accused as matter of right and not of grace. It was observed by this court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which create reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.
Reliance can also be placed on case titled as Sher Umer Khan v. Khan Pur alias Khaney and 2 others reported in PLD 2015 Peshawar 143 wherein it was held as under:-- "It is settled law that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the court to draw conclusion:whetherthe prosecution has succeeded in establishing accusation against the accused or otherwise: and if it comes to the conclusion that the charges so imputed against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal. Moreover, accused is always consider as the most favorite child of law and every benefit of doubt goes to him regards of fact whether he has taken any such plea or not.
Reliance can be placed on case titled, "Fariad Ali v. State" 2008 SCMR 1086.
10. It may be observed that after gaining acquittal a double resumption of innocence was earned by the private respondent and the superior courts have always been reluctant to set aside findings of acquittal unless it is proved that the findings arrived at by the trial court while acquitting the accused are based on misreading, non-reading of evidence or the acquittal is perverse, shocking, artificial and ridiculous. In the instant case, no illegality, irregularity, misreading, non-reading of evidence or that the findings arrived at by the trial court are perverse, shocking, artificial and ridiculous could be pointed out. Conversely perusal of record as well as the impugned judgment reveals that the learned trial Court, after proper appraisal of evidence and attending all the legal as well as factual aspects of the case, passed a well-reasoned judgment, which is not open to any exception. Even on reappraisal of evidence, we could not form a contrary view to that of the trial court. Reliance can be placed on the judgment titled as Haji Paio Khan v. Sher Biaz and others reported in 2009 SCMR page 803. Relevant observations there from are reproduced herein below:- - "It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record".
11. It may further be added that the standards of assessing evidence in an Appeal against Acquittal and that of appeal against conviction are quite different. Appraisal of the evidence in an Appeal against conviction is done strictly and in an Appeal against acquittal, such rigid method of appraisal is not be applied as there is already finding of acquittal given by the trial court after proper analysis of evidence on record. Reliance can be placed on the judgment titled as Sher Umer Khan v. Khan Pur alias Khaney and 2 others reported in PLD 2015 Peshawar 143 relevant observation there from reads as under:-- "Moreso, this is appeal against acquittal and standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. Marked difference exists between appraisal of evidence in appeal against conviction and in appeal against acquittal. Appraisal of evidence, in appeal against conviction is done strictly and in appeal against acquittal such rigid method of appraisal is not to be applied as there is already findings of acquittal given by the trial court after proper analysis of evidence on record. Scope of appeal against acquittal of accused is considerably narrow and limited. Unless the judgment of acquittal is perverse, completely illegal and on perusal of evidence, no other decision could be given except that accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice. High Court is always slow in exercise of jurisdiction under section 417, Cr. P. C. unless it finds that gross injustice had been done in administration of criminal justice.
For the foregoing reasons, we are of the considered opinion that the prosecution has failed to bring home the charge against the respondent beyond reasonable doubt and the defence succeeded to create serious doubts and dents in the prosecution case. Thus, the trial court has rightly acquitted the respondents of the charge. No case for interference in the impugned judgment is made out, therefore, the appeal being meritless is dismissed.