MRS. RASHIDA ASAD, J.----Through captioned criminal appeal Syed Altamash Mushtaq appellant has impugn ed judgment dated 10.02.2018, passed by the learned Special Court (Offences in Banks) Sindh at Karachi in Case No. 23/2013, arising out of FIR No.289/2013 under Sections 420, 468, 471 P.P.C., registered at P.S Shahrah-e- Faisal, Karachi,_ whereby appellant was convicted under Sections 420 read with section 511, P.P.C., and sentenced to suffer 03 years R.I and to pay fine of Rs.10,000/-. In case of default, he was ordered to suffer 03 months S.I. He was also convicted under Section 471, P.P.C., and sentenced to suffer 03 years R.I and to pay fine of Rs.10,000/-. In case of default, he was ordered to suffer 03 months' S.I. However , benefit under section 362-B, Cr.P.C., was extended to the appellant.
2. Relevant facts for disposal of the instant Criminal Appeal as emanated from the evidence of the complainant are that he was Bank Manager in Standard Chartered Bank, time Medicos Branch, Karachi. On 20.05.2013, he received email from Head Office containing two pictures of suspected culprits who had withdrawn seven cheques amounting to Rs.55,65000/- through different Branches of SCB. On 21.05.2013 a person having resemblance with suspected pictures arrived at the branch with cheque of Rs.850,000/-, which was presented by him at the counter of the branch. Operation Manager Adeel informed the complainant that the cheque was of same series of cheques which were withdrawn by culprits. Such information was communicated to the Head Office. Complainant after receiving call from Regional Head, restrained the said person in their branch. Bank officials came at the branch for investigation and the accused admitted his guilt before them and furnished the same in writing. Thereafter , accused was brought at police station Sharah-e-Faisal in company of P.W Abdul Qadir Shaikh, where accused was arrested in presence of mashirs. On the next day, complainant along with alleged cheque went to police station and lodged FIR under the above referred sections.
3. On completion of investigation, accuse d was challaned before the Court for adjudication, where to substantiate the charge, prosecution has examined P.W-1 complainant Mashood Jane Alam and P.W-02 Muhammad Azam, who produced the relevant documents. Trial Court also examined C.W-1 process server Raja Tariq Mehmood SHO PS Shahrah-e-Faisal, who testified that summons could not be served upon P.Ws/ SIP Muhammad Lateef, Abdul Rehman Chaudhry , Aijaz Ahmed, Muhammad Saleem, Muhammad Ali, Samreen Kanwal, Muhammad Zakir , Samsuddin, Tariq Hussain, Imran Yar Baig and Abdul Qadir Shaikh, thereafter , prosecution closed its side.
4. Statement of accused/appellant under section 342, Cr.P.C. was recorded, whereby he has denied prosecution allegations and claimed his innocence. Neither he examined himself on oath as provided under section 340(2), Cr.P.C., nor examined any defence witness. However , at conclusion of the trial, appellant was convicted and sentenced as referred supra.
5. Learned counsel for the appellant has contended that applicant is innocent and has been implicated falsely in the present case; that learned trial Court has failed to appreciate the evidence adduced by the prosecution properly; that there is delay of one day in lodging of the FIR for which no plausible explanation has been furnished; that alleged cheque pertains to a joint account and prosecution has failed to examine the account holders in order to verify their signature on the said cheque; that neither email nor CCTV footage has been produced at trial; that learned trial Court has passed the impugned judgment without any iota of confidence inspiring evidence, therefore, the same is liable to be set aside.
6. Conversely , the learned Assistant Attorney General for Pakistan while supporting the impugned judgment has contended that appellant was apprehended at the spot by the Bank staff in his attempt to encash a forged cheque amounting to Rs.850,000/-; that no enmity with the complainant has been alleged by the appellant in order to falsely implicate him in this heinous offence; that appellant admitted presentation of alleged cheque in his own hand writing; that PWs have implicated the accused regarding commission of the alleged offence and considering the evidence adduced by the prosecutio n, learned Special Judge had rightly convicted him, hence impugned judgment does not call for any interference.
7. We have heard the parties at length and scanned the material available on record prudently . It would be appropriate to have a glance upon the relevant portions of the evidence adduced by the prosecution.
8. Evidence of PW-1 complainant has already reproduced above. Prosecution has also examined P.W-02 ASI Muhammad Azam, the investigating officer of the case, who deposed that on 22.05.2013, he was posted at P.S Shahrah-e-Faisal and received the investigation of this case on 24.05.2013, inspected the place of incident, secured the cheque of Rs.850,000/- from bank and prepared such memos in presence of mashirs.
9. The prosecution could bring the evidence of two prosecution witnesses as other material witnesses have failed to put their appearance even issuance of repeated summons.
10. At the cost of repetition, it will be worthwhile to mention here that P.W-01 complainant in his evidence stated that upon presentation of cheque, Operation Manager namely Adeel informed him that the alleged cheque was of the same series from which huge amount had been encashed from different branches, but surprisingly , the most important witness of the incident i.e. Operation Manager Adeel was not made as witness in the instant case, whose evidence could be a best piece of A evidence in order to establish the charge. There is no explanation on the part of prosecution that as to why the evidence of this witness was withheld, therefore, a presumption under Illustration
(g) of Article 129 of Qanun-e-Shahadat Order , 1984 can fairly be drawn that had the said witness been examined In the Court his evidence would have been unfavourable to the prosecution. We have further observed that according to the prosecution case, the appellant was apprehended on the basis of resemblance with the pictures of alleged culprits sent to him by the Head Office through email is concerned. the prosecution has failed to produce on record such email/ pictures and hence arrest of the appellant on the basis of resemblance in our humble view cannot be safely relied upon.
11. We have further observed that it is the case of prosecution that the cheque was of a joint account which was in the names of Muhammad Farooq and Shamsuddin and from whose account the appellant had already withdrawn a huge amount of more than 5 Million. but surprisingly even after alleged withdrawal of such a huge amount. both the account holders did not come forward to give evidence that the said cheque was not signed by any of them and it was forged cheque or even during investigation it could be brought on record that any complaint regarding missing or theft of the cheque book had been lodged by any of account holder with the Bank or police. We have further observed that although, the prosecution was not bound to produce each and every witness, but if the prosecution failed to produce such witness who were central figure and all the story revolved around them. then the prosecution story would become doubtful and when we specifically asked from the learned Assistant Attorney General that as to why attendance of material witnesses court not be procured by the prosecution. he had no answer . However , he attempted to argue that appellant himself confessed his guilt in writing, which is sufficient for maintaining his conviction. It is observed that according to complainant the appellant was apprehended during bank time, but even then he was produced before the police at 2245 hours. Normally the bank time ends at 5:00 p.m., but the appellant was remained under detention in the bank and was produced at the police station at 10:45 p.m. It is further C observed that complainant did not inform the police promptly and in his evidence has admitted that after consultation. with Head of fice, he lodged the FIR on next day .
12. We observe that when an FIR is lodged with noticeable delay and particularly after consultations and deliberations the same loses its credibility . Reliance is placed upon the case reported as Mst. Asia Bibi v. The State and others (PLD 2019 SC 64). It is further observed that in the present case there is delay of one day, which gives rise to the inference that occurrence did not take place in the manner project ed by prosecution and time was consumed in making effort to give a coherent attire to prosecution case. Reliance is placed upon the case reported as Zeeshan Shani v. The State (2012 SCMR 428) wherein the Honourable Supreme Court held delay of even more than one hour in lodging the FIR as fatal. The complainant in his evidence has deposed that he after consultation with his highups, lodged the FIR on the next day. However , in our humble view the complainant has failed to furnish plausible explanation for delay in lodging of the FIR. In the case titled as Noor Muhammad v. The State (2010 SCMR 97), the Honourable Supreme Court held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in lodging the FIR, which time appeared to have been spent in consultation and preparation of the case, the same was fatal to the prosecution case. We have further observed that even alleged cheque was not encashed and no loss was suf fered by the Bank.
13. As regards the alleged admission in writing regarding presentation of the forged cheque by the appellant is concerned, it is observed that no evidence has been brought on record in order to prove that alleged statement in writing was given by the appellant himself and even despite the installation of CCTV camera in the bank, no such footage has been produced during the course of investigation as well as before the learned Special Court to prove the same, thus in our humble opinion mere production of the alleged hand written statement has no legal weight for consideration. It is well established that accused could not be convicted on probabilities and high presumptions nor mere heinousness of the offence could be made basis for conviction of the accu sed until and unless any strong incriminating evidence is adduced by the prosecution. We have further observed that even no question regarding such statement was put in statement of accused recorded under section 342, Cr.P.C., when confronted, learned Assistant Attorney General while admitting such lacuna in the case requested to remand the case to the trial Court to record the fresh statement of the appellant to remove the said lacuna. We have, however , not felt persuaded to agree with the learned Assistant Attorney General in. this regard for the reason that law is settled by now that piece of evidence or a circumstance not to put to an accused at the time of recording of his statement recorded under Section 342, Cr.P.C., cannot be considered against the persons facing trial. In the case in hand, through an act or omission of the Court a serious lacuna in that record had crept into the case of prosecution and the accused could not be prejudiced on account of said act or omission of the Court. We have noted that appellant is facing the agony of protracted trial since 2013 and this appeal is pending since 2018 and almos t two years have been lapsed therefore, at this stage, if case is remanded to the trial Court it amounts to start another round of litigation and put the parties into torture. In this regard, we are supported with an unreported judgment of the Honourable Supreme Court of Pakistan in Criminal Appeals Nos. 24-K, 25-K and 26-K of 2018 decided on 26.02.2019.
14. Considering the above circumstances, we are of the view that prosecution has failed to prove the guilt of the appellant regarding the commission of the alleged offence and has failed to bring the guilt home to the appellant beyond any shadow of doubt. It is an established principle of law that for extending benefit of doubt in favour of the accused so many circumstances are not required rather one circumstance, which creates reasonable dent in the veracity of the prosecution version can be taken into consideration for the purpose not as a matter of grace rather as a matter of right. Respectful reliance, in this regard is placed in the cases of Tariq Pervaiz v. The State (1995 SCMR 1345 ) and Riaz Masih v . State (1995 SCMR 1730 ).
15. For the forgoing reasons, by extending benefit of doubt, instant criminal appeal stands allowed and the impugned judgment dated 10.02.201.8 passed by the learned Special Court (Offences in Banks) Sindh at Karachi is set aside and appellant Syed Altamash Mushtaque is acquitted from the charge. He shall be released forthwith, if not required in tally other custody case.
16. These are detailed reasons for the short order dated 28.04.2020, whereby instant criminal appeal was allowed by us and appellant was acquitted from the charge.