SYED MUHAMMAD FAROOQ SHAH, J.---By invoking the appellate jurisdiction of this Court under section 417(2), Cr.P:C., the appellant, agitated different grounds in memo of appeal and made a prayer to set aside the impugned judgment dated 11.12.2010, passed by the learned VIth Judicial Magistrate, Karachi (West), thereby the Respondents/accused Nos, 1 and 2 were acquitted in Criminal Case No,175/2009, culminating from FIR No, 615 of 2008, lodged at P.S. S.I.T.E., under sections 420, 468,471, 408, 34, P.P.C. and to remand the case to the trial Court for its de novo trial.
2. Succinct facts as narrated by the Complainant Mohabat Ali, `Manager Sales/Accounts' of appellant's Dalda company, are that the cases of fraud and theft have been detected in Sales Accounts Department of their company, which have been committed by the employee namely Muhammad Imran in connivance with company distributors Malik Atif Brothers Chakwal and others. The said Imran was expelled from service on 19.09.2008 and after his removal the complainant came to know that a cheque of Al-Falah Bank Code 0129 of Rs, 35,45,282/- was deposited in Bank on 08.03.2008 by the Company in favour of Malik Atif Brothers Chakwal for purchasing of stock, the same was bounced due to insufficient amount in account of Atif but Imran had not disclosed it. This cheque was returned on 20.03.2008 and it came in their knowledge on 07.05.2008; they talked with Malik Atif, he called Bank statement and found that it was read minutely then found the number of cheque written as 120045 in place of number of cheque 179996, deposited by the Company in Bank and same has been encashed on 26.04.2008 but its amount was not transferred in company's account. The cheque book of Malik Atif was with appellant's company from which this cheque fraudulently was taken out, said amount was deposited in some one's Account instead of Account of Dalda Foods. Thereafter they thoroughly checked the amount of Atif and came to know that as many as 28 cheques of Rs, 1,43,52,380/- have been deposited in the accounts of Zohaib Nasir, Noman Azal and Mahik Corporation, which have been issued in favour of Malik Atif Brothers in order to sell the products of Dalda Foods. Zohaib Nasir and Noman Afzal are friends of Muhammad Imran, therefore, during inquiry it has been surfaced that Atif fraudulently got encashed the company's cheques of Rs, 1,78,9662/-in lieu of demand draft of Rs, 60,95,287/- but he did not pay. On 22.06.2008, Noman Afzal met with Director of company and confessed the guilt but later on he did not contact. It has further been narrated by the Complainant that Muhammad Imran has two files of company, which he did not return. Apart from this, the cheque of Malik Atif was missing from company's record in which their expelled employee Muhammad Imran was involved; in nutshell, an amount of Rs, 11742635/- was drawn from bank fraudulently, making forgery in record being employee and agent. Accused Muhammad Imran and lady accused Mst. Mehak Zehra Rizvi absconded. During investigation, it was verified that accused Suleman Afzal, Noman Afzal and Zohaib Nasir were out of Country to conceal them from their legal arrest. On completion of usual investigation, the challan was submitted in the Court on dated 18.03.2009.
3. On 29.06.2009, a formal charge was framed against the accused to which they pleaded not guilty and claimed to defend themselves. Thereafter during the trial, accused Imran and Noman Afzal absconded away, both these accused were declared proclaimed offenders. Subsequently, at the trial, the prosecution examined the Complainant; PW-Kashan Ahmed Qureshi; Investigation Officer/SI Rasheed and thereafter learned Prosecutor closed the prosecution side. Afterward, on 25.10.2010, the statements of the accused were recorded under section 342, Cr.P.C. and they professed themselves as innocent. The accused Malik Atif stated that he, being a company distributor, issued post-dated blank cheques books to the company duly signed with stamps and the company was under obligation to deliver the goods after making the payments and there was credit policy in the company as admitted by the prosecution witnesses in their statements. He further stated that he had not committed any fraud whatsoever with the company but his amount about Rs, 8,600,000/- was due against the company for which he had filed a suit in the High Court of Sindh. He further stated that it becomes an admitted position that the keys and cheque books were in the safe custody of the company.
4. I have carefully scanned the material evidence with the able assistance provided by learned Counsel for the parties.
5. Mr. Khawaja Muhammad Azeem, learned advocate representing the appellant company (complainant) submitted that sufficient evidence was brought on the record by the prosecution to convict the accused on the basis of documentary/oral evidence as this is a case of embezzlement of money and, therefore, the appellant company has suffered huge loss. He argued that the impugned judgment is wholly artificial, perverse, illegal and based on ink-reading of evidence is liable to be set aside.
6. Conversely, Malik Khushal Khan, learned Counsel representing the Respondents/accused, by thrashing out the prosecution evidence submitted that it is not a case of misreading, non-reading or mis-appreciation of evidence; more particularly, the Complainant admitted in his cross- examination that the Respondents/accused are the distributor of the Company in terms of the Distribution agreement, in clause 28, which indicate that "every dispute, difference or question within may at any time arise between the Distributor and the Company or any person claiming under them touching or arising out of or in respect of this agreement of the subject matter thereof shall be referred to the arbitration to be appointed by the President for the time being of Overseas Investors Chamber of Commerce and Industry, Karachi and the decision shall final and binding upon the parties". Learned Counsel argued that if any dispute arose between the Distributor and the Company, the Complainant's company could only avail remedy in terms of the Arbitration Act, 1940, hence the respondents (accused) have correctly been acquitted; moreso, the complainant admitted in his cross-examination, that in case of errors in numbers mentioned in the sale invoice, they deposited another cheque but 'number has not been mentioned in invoice, which shows default, if any, on the part of the company and the Respondents/accused are innocent; learned Counsel read out the deposition of Complainant, who admitted in his cross-examination that "it is correct to suggest that the signed cheque books of the distributors kept in the safe of the company lying in my department", which shows that he was the custodian and he was responsible and any action whatsoever be taken against the Complainant. Moreso, the Complainant admitted in his cross-examination that "it is correct to suggest that all above persons have the said keys with my permission". In his further cross-examination, he admitted that "it is correct to suggest that my department having only one set of safe keys" which shows that the complainant is the culprit who may be investigated; that the complainant also admitted in his cross-examination that "it is correct to suggest that I have not produced bouncing cheque in Court". The Complainant also admitted that "it is correct to suggest that I have not lodged the FIR against the alleged stolen cheque book" which transpire that the present Respondents/accused are innocent. PW-1 also admitted in his cross-examination that "it is correct to suggest that our company supply goods to Malik Atif against payment on 06.05.2008, 07.05.2008 and 08.05.2008 after commission of alleged fraud". The Complainant PW-1 further admits that "I see the sale invoice 72198 dated 23.01.2008, which shows the payment of Rs, 703503 against Cheque No, 0164448. It is correct to suggest that Invoice No, 719042 dated 05:01.2008 issued by the company against Cheque No, 0164438 and which have been credited. It is correct to suggest that Invoice No, 715419 dated 01.12.2007 against cheque No, 0164428 of an amount of Rs, 719486/63 to the company made by Malik Atif's Company". That the PW2 in his cross-examination admitted that "it is correct to suggest that some time I and Faizan also used the keys of safe in which cheque books lying. Faizan is Team Leader.
Anybody of the department can easily excess to the said keys of only one set." That during his cross-examination PW-3/Investigation Officer admitted that "it is correct to suggest that in FIR during of incident is not mentioned, voluntarily says only mentioned prior to 07.05.2008, it is correct to suggest that the time of offence is not mention in the FIR". He further admitted that "it is correct to suggest that as per record no authority letter and resolution passed by the Board of Director is available with police papers. It is correct to suggest that the complainant has not produced any original 'cheque and photocopy". He further admitted that "it is correct to suggest that as Bank Statement of accused Malik Suleman Atif cheque for the amount of 35,45,000/- showed as clear/paid." He next submitted in his cross-examination that "it is correct to suggest that during police custody remand Malik Atif denied about the commission of offence. It is correct to suggest that my investigation Malik Atif prior to arrest never visited Karachi. It is correct to suggest that the company or complainant has not provided their Audit Report during investigation. It is correct to suggest that as per my investigation complainant is/was the custodian of keys of safe where the cheque books were lying". Learned Counsel representing the Respondents Nos, 1 and 2 argued that in the captioned appeal under section 417, Cr.P.C. filed against the acquittal, the Complainant has miserably failed to establish that the findings of the trial Court acquitting the accused are perversed, arbitrary, whimsical, unreasonable, fake, concocted, artificial, ridiculous, shocking, false, based on misreading of material evidence or thai the evidence on the record is highly conjectural, or based on surmises unwarranted in law.
7. Learned Counsel for the Respondents/accused further argued that record reflects that the Respondent No, 1 was a distributor of appellant M/s. Dalda Foods (Pvt.) Ltd. and initially business of accused was run through demand draft in favour of the company and the items/goods were delivered to the company of the accused and the accused submitted signed cheque books along with stamps of the Complainant company which were in their custody and such system in business community called "Cheque Party System". Moreso, there was credit policy of appellant as admitted by the Complainant in his cross, therefore, question of outstanding payment could not arise moreso, as per the customer statement dated 15.03.2008 ranged between 12.01.2007 to 15.03.2008 clearly shows that Rs, 1762/- is favourable/excess amount on account of Malik Atif Brothers and nothing is due/outstanding against the accused; that all the cheques/leaves were in the custody of M/s. Dalda Foods Pvt. Ltd., were encashed from the account of the applicant/accused, which shows bona fide on the part of the applicant/accused and the mala fide on the part of Complainant's party, as the company never reported of stolen cheques book to any police station neither they written/informed to the applicant/accused that the cheque books/cheques were stolen from the custody of the Company M/s. Dalda Foods Pvt. Ltd; that M/s. Dalda Foods issued sales invoices mentioned therein the Order Nos, Invoice Nos,, dates and the cheque numbers against whom the sales invoice were issued against the 'Cheque Party System', so the question of outstanding amount against the Respondents/accused does not arise and that the applicant/accused made certain payments through Demand Draft of Rs, 77,60,699/- in addition to the cheques to get the supply from the Company, but the Company failed to fulfill the obligation, hence Suit No, 345/2009 was filed by the applicant/accused in this Court at Principal Seat @ Karachi, which is pending adjudication against the Complainant's company; that the Complainant himself admitted in the FIR that the accused person Muhammad Imran and Suleman Afzal met on 22.06.2008 with the Company. Director Muhammad Rabbani and admitted that he has committed this offence and he takes sole responsibility that he did each and everything; that it is admitted in the FIR by the Complainant that the Cheque Books of Malik Atif Brothers were in the custody of M/s. Dalda Foods was misplaced, but he did not lodge FIR regarding the stolen cheque books/cheques at any Police Station or informed in writing to the applicant/accused regarding the stolen of the Cheque books, to stop the payments; that there is no credit policy of M/s. Dalda Foods as admitted by the Complainant in his cross-examination, hence the question that any supply has been made and the payment is outstanding does not arise. That the applicant/accused did not commit any offence under sections 420/468/471/34, P.P.C. and so far as section 408 is concerned, the Investigation Officer has admitted in his cross-examination that the aforesaid provision is not applicable- to the present applicant/ accused, hence no case is made out against the accused as nothing was recovered from the accused; that there is unexplained delay of four months which was admitted by the Investigation Officer in his cross-examination hence the offence whatever alleged against the present accused is an afterthought and baseless and fabricated. That the accused never visited to the company where the incident took place, as admitted by the Investigation Officer in his cross-examination.
8. On the other hand, learned DPG Ms. Rahat Ehsan, fully supported the impugned judgment and submitted that there is no illegality, gross irregularity or infirmity in the impugned judgment and the same does not warrant any interference.
9. On considering worthy submission of learned Counsel for the parties and perusal of record, I reached at the irresistible conclusion that the impugned judgment is well reasoned and I found no occasion to interfere in it. Moreso, I would like to make here necessary clarification that an appeal against acquittal has distinctive features and the approach to deal with the appeal against conviction is distinguishable from the appeal against acquittal because presumption of double innocence is attached in latter case. Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or is artificial, arbitrary and lead to gross miscarriage of justice. Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference. Suffice is to say that an order/judgment of acquittal gives rise to strong presumption of innocence. It is settled law that while examining the facts in the order of acquittal, substantial weight should be given to the findings of the Courts below, whereby accused were exonerated from the commission of crime as held by the Apex Court in the case of Muhammad Ijaz Ahmed v. Fahim Afzal (1998 SCM R 1281) and Jehangir v. Aminullah and others (2010 SCM R 491). The acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as it is settled that whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.
10. Suffice is to say that there is hardly any improbability or infirmity in the impugned judgment of acquittal recorded by the learned trial Court, which being based on sound and cogent reasons do not warrant any interference by this Court and is accordingly maintained.
Consequently, instant Criminal Acquittal Appeal admitted earlier on 10.03.2011, having no merits for consideration, is dismissed.