ROZI KHAN BARRECH, J.---Through this criminal revision petition filed under sections 435 and 439, Cr.P.C, the petitioner has impugned judgment dated 10.03.2020, passed by learned Additional Sessions Judge-IX Quetta ("appellate court") in Criminal Appeal No. 01/2020 as well as judgment dated 25th February 2020, passed by the learned Judicial Magistrate (trial court) in criminal P.P.C. Case No.66/2018, whereby he was convicted under Section 489-F of Pakistan Penal Code, 1860 and sentenced to suffer RI for three years and to pay fine of Rs.20,000/- in default whereof he was to further suffer SI for three months. The petitioner was, however , extended benefit of section 382-B, Cr .P.C.
2. Precisely the prosecution case is that on 17.03.2018, the complainant Ahmed Shah son of Khan Muhammad lodged FIR No. 50 of 2018, with Police Station City Quetta with the averment that he was manager of Abdul Shakoor Trading Company situated at New Adda Chorangi Post Office Street No. 4, which deals in the business of cooking oil and Banaspsti in the month of March 2017, the accused Muhammad Ashraf started partnership in the said company; that in the month of May he started supplying cooking oil and Banaspati. In the meanwhile, Rs.1,48,00,000/- were outstanding against him. On demand of the same the accused first lingered on the matter and consequently issued a cheque bearin g No. 1631034296 of Muslim Commercia l Bank, Satellite Town, a cheque bearing No. 1631034297 of Rs.600.000/- and another cheque bearing No. 0646096 170. On presentation, the same were dishonored due to insuf ficient balance in the account. Hence, the crime report.
3. On completion of usual investigation, challan of the case was submitted before the trial court, where a formal charge framed and read over to the accused to which he pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced as many as five witnesses. Thereafter statement of the accused was recorded under section 342, Cr.P.C., wherein he once again denied the allegation levelled in the prosecution case however , neither the accused recorded his statement on oath under section 340(2), Cr.P.C., nor produced any witness in his defense.
4. The trial court, after hearing the parties and evaluating evidence, convicted and sentenced the petitioner in the aforesaid terms. The appeal filed by the petitioner was also dismissed by the appellate court.
5. Learned counsel for the petitioner contended that the trial court misread the evidence adduced during the trial and the learned appellate court also failed to consider this aspect of the case; that the two courts below erred in law and on facts while passing the impugned judgments; that the two courts below have not taken into consideration the decisions of the superior courts on the point involved; that the two courts below have failed to consider that there are material contradictions in the evidence of prosecution witnesses. He prayed for setting aside of the impugned judgments.
6. In rebuttal, the learned counsel appearing on behalf of the complainant and learned DPG appearing for the State contended that the impugned judgments are well-reasoned and in accordance with the law. They submitted that prosecution witnesses have fully implicated the accused with the commission of the alleged offence. They supported the judgment passed by the learned trial Court and prayed for maintaining the same.
7. I have heard the learned counsel for the parties and carefully scanned the material available on record. Before proceeding further , it would be appropriate to reproduce section 489-F , P.P.C. as under:-- "489-F Dishonestly issuing a cheque:---Whoever dishonestly issues a cheque towards re-payment of a loan or fulfillment of an obligation which is dishonored 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 cheque would be honored and that the bank was at fault in not honoring the cheque".
8. To constitute an offence under this section, dishonesty on the part of the payer is a condition precedent in issuance of a cheque towards repayment of loan or fulfillment of an obligation. Thus, it is for the Court to consider that under which circumstances, the cheque was issued and what was the intention of a person, issuing it. The words "whoever dishonestly issues a cheque" used in this section shows the intention of the legislature that to constitute an offence, it must be proved that the cheque has been issued dishonestly . Dishonesty means a fraudulent act or intent to defraud others, especially creditors and lien holders. Similarly , the word "dishonor", used in this section means fail to honour a cheque, with an intent to defraud and befool a payee towards re-payment of a loan or fulfillment of an obligation just to disgrace or put him in a state of shame. Hence, mere issuance of a cheque and it being dishonored by itself is not an offence, unless and until dishonesty on the part of a payer is proved.
9. Dishonest intent is the basic requirement, while the purpose of its issuance must be either repayment of loan or fulfillment of any obligation, and arrangements with Bank to ensure the cheque is honored are the remaining requirements. It was held by honorable Supreme Court in criminal petition "Allah Ditta v. The State ", reported in 2013 SCMR page 51 that: "----Every transaction where a cheque is dishonored may not constitute an offence. The foundational elements to constitute an offence under this provision are issuance of a cheque with dishonest intent; the cheque should be towards repayment of a loan or fulfillment of an obligation and lastly that the cheque in question is dishonored."
The pre-conditions to make out an offence under section 489-F , P.P.C. were determined by the honorable Supreme Court while deciding criminal appeal "Muhammad Sultan v. The State ", reported in 2010 SCMR page 806. It was held that: "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 fulfill 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 cheque is dishonoured".
However , a valid defence can be taken by the accused, if he proves that:
(i) he had made arrangements 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."
10. On basis of the guiding principles as determined the instant case has to be assessed to arrive to a correct decision.
11. The entire case is based on the testimony of the complainant/PW1 being star witness of the case. He stated in his statement that in the month of March 2017, the accused started partnership with Abdul Shakoor Trading Company and was doing business with him of Rs.30000000/-. In the meanwhile Rs. 14800000/-was outstanding against him. On demand of the same, the accused first B lingered on the matter but consequently issued a cheque bearing No. 1631034296 of Muslim Commercial Bank, Satellite Town, a chequ e bearing No. 1631034297 of Rs.600,000/- and another cheque bearing No. 0646096170 of Rs.2000000/-. On presentation, the, same were dishonored due to insuf ficient balance in the account and lastly in March 2018, the complainant filed an application for registration of the FIR.
12. The prime question is whether any transaction has taken place between the complainant and the petitioner or not. The complainant did not produce any agreement in respect of business partnership, which is the basic document to establish the relationship between the complainant and accused/petitioner . It has been observed that the statement of PW-1 is silent with regard to place where such transaction took place. Furthermore he has failed to produce a single document to establish the existence of any partnership allegedly carried out between him and the accused. PW-1 has also failed to give the full particulars of the said partnership. Suffice to state here that a cheque being the mode of payment must appear to have been issued against the consideration of business consideration or any other dealing of the date and time thereof, showing that the issuer is liable to pay the amount for the consideration of which, he has issued the cheque. If the issuance of such cheque is no meaningful transaction creating an instant liability of payment of the amount thereof, against certain consideration involved therein, no criminal liability would prima-facie accrue in case of any cheque so issued and dishonored, since where there is no such liability there is no fraud or dishonesty referred to above. Admittedly the complainant has absolutely failed to establish on record that there had been any transaction between him and the petitioner for which the cheque had been issued and subsequently was declared dishonored.
13. The complainant/PW -1 stated during cross-examination that "he himself filled the cheque on the instance of the accused", meaning thereby that the cheque was filled/written by the complainant himself and he also mentioned the amount in the said cheque. This fact proves that the petitioner did not issue the cheque willfully and intentionally . Similarly PW-3 the representative of the bank stated during cross-examination that there was cutting on the cheque of Rs.600000/-. This aspect of the matter casts serious doubt in the prosecution case which was not considered by the trial court as well as appellate court.
14. The other important aspect of the matter is that the alleged cheques were issued on 18.08.2017, and 28.9.2017, but the application for registr ation of the FIR was submitted on 17.03.2018 and FIR was lodged on 26.08.2018 with delay of six months without any explanation. However , PW-1 stated during cross-examination that the application for registration of the FIR was written by Noor-ud-Din, Advocate in his office on 17.03.2018, meaning thereby that the complainant lodged the FIR after deliberation and consultation, which creates serious doubt in the prosecution case.
15. The complainant stated in his report as well as in his statement before the court that he was manager of Abdul Shakoor Trading Company meaning thereby that he was not the owner of the said company . In such view of the fact, the question arises that in what capa city the accused has given the cheques to him. More so, the prosecution neither cited the owner of Abdul Shakoor Trading Company as well as his brother namely Abdul Ghafoor as witnesses in the challan nor produced them before the trial court. In order to establish the version put forth by the complainant, the presence of such impor tant witnesses would have further streng thened the prosecution version.
Non-production of such important witnesses, as provided under Article 129(g) of Qanun-e-Shahadat Order 1984 and dictum laid down by the Hon'ble Supreme Court in the case of Lal Khan v. The State (2004 SCMR 1847) would cast adverse inference, which brings me to the irresistible conclusion that if the said witnesses had been produced they would not have supported the prosecution version.
16. This court while exercising the revisional jurisdiction in terms of section 435, Cr.P.C. has to examine the record for the purpose of satisfying its conscience to check the correctness, legality or propriety of any findings/sentence or order recorded or passed by the lower courts, therefore, the duty carted upon the High Court on its revisional side compels it to reappraise the entire evidence on the touchstone of principles of fair trial as referred in Article 10- A of the Constitution of the Islamic Republic of Pakistan 1973. If the first appellate court in disposing of the appeal did not discuss the evidence at all.
In view of above discussion, by extending the benefit of doubt to ,the petitioner , judgment dated 10.03.2020 passed by learned Additional Sessions Judge-IX Quetta in Criminal Appeal No. 01/2020 as well as judgment dated 25th February 2020 passed by the learned Judicial Magistrate-I Quetta in criminal P.P.C. Case No. 66/2018 are hereby set aside. The petitioner is acquitted of the charge under section 489-F , P.P.C. in FIR No. 50/2018 Police Station City Quetta. He is ordered to be released forthwith if not required in any other case.