ZAFAR AHMED RAJPUT, J. This Criminal Acquittal Appeal is directed against the judgment dated 20.7.2022, whereby the learned Judicial Magistrate-XIVTH (MTMC), Karachi (West) acquitted the respondents Nos. 1 and 2 of the charge in Case No.338 of 2021, arising out of FIR No.25 of 2021, registered under Section 489-F/34, P.P.C., at Police Station SITE-A, Karachi.
2. Facts necessary for the disposal of the instant acquittal appeal are that in the month of November, 2020 the appellant/complainant sold out thread to the respondent No.1/accused Shoukat Ali and against that an amount of Rs.21,73,000/- was outstanding against him, for that he issued six cheques of his bank account to the appellant bearing Nos. (1) A-38315366 (2) A- 38315367 (3) A-38315372 (4) A-38315373 (5) A-38315377 (6) A-38315378 and one cheque of his son, the respondent No.2's bank account bearing No. A-33641071; however, on 23.02.2021, the same were dishonored on presentation; hence, the aforesaid FIR was lodged by the appellant. After completing usual investigation, Police submitted charge sheet against the respondents/accused, who joined the trial after obtaining pre-arrest bail. The Trial Court supplied the copies of necessary police papers as required under section 241-A, Cr.P.C. to the said respondents vide receipt at Ex.01.
Formal charge was framed against them for the offence under section 489-F, P.P.C. at Ex.02, to which they pleaded not guilty and claimed for trial, vide their pleas at Ex.02/A and Ex.02/B. At the trial, the prosecution in order to substantiate the case against the said respondents examined PW- 1 Muhammad Sohail Haroon (complainant) at Ex.03, who produced application at Ex.03/A, statement at Ex.03/B, FIR at Ex.03/C, memo. of site inspection Ex.03/D, memo. of seizure at Ex.03/E and original 07 cheques at Ex.03/F to Ex.03./L; PW-2 S.M. Faraz Akhter (Operation Manager, Habib Metro Bank) at Ex.04, who produced letter of ICI at Ex.04/A and bank report at Ex.04/B; PW-3 SI Asif Zia at Ex.05, who produced statement at Ex.05/A, letter at Ex.05/B, letter of SHO at Ex.05/C, order of S.S.P. at Ex.05/D and entry at Ex.05/E; PW-4 Eban Tariq at Ex.06; PW-5 Aasim Maqbool Khan (Operation Manager, Meezan Bank) at who produced letter of I.O. at Ex.07/A and bank report at Ex.07/B and PW-6. A.S.I. Aamir Ghayas (I.O.) at who produced roznamcha entry No.28 at Ex.08/A.
After closing the prosecution side for evidence, the Trial Court recorded the statements of the respondents/accused under section 342, Cr.P.C. at Ex.10 and Ex.II, wherein the respondents denied the allegations levelled against them by the prosecution and claimed to be innocent. Respondent No.1 (Shoukat Ali) examined himself on oath at Ex.12. Afterward, the Trial Court having been heard the learned counsel for the parties as well as A.D.P.G, acquitted the respondents/accused of the charge by extending them benefit of doubt vide impugned judgment.
3. Learned counsel for the appellant contends that the impugned judgment being against the facts and evidence is not sustainable in law; hence, it is liable to be set-aside; that the Trial Court has passed the impugned judgment without taking into consideration the documentary evidence produced by the P.Ws.; that the impugned judgment suffers from misreading and non-reading of the evidence on record and the sufficient material is available to connect the respondents/accused with the commission of the alleged offence, hence this Criminal Acquittal Appeal is liable to be allowed.
4. Conversely, learned Addl. Prosecutor General fully supports the findings and conclusion of the Trial Court recorded in the impugned judgment.
5. Heard. Record perused.
6. It may be observed that for constituting an offence under section 489-F, P.P.C., the initial burden lies upon the prosecution to establish that the alleged cheque(s) was issued dishonestly by the accused towards repayment of a loan or fulfillment of an obligation. In the instant case, it is claim of the appellant that he sold out Metallic Yarn to the respondent No.1 worth of Rs.21,73,000/- and against that the later issued him seven cheques, which were dishonored on presentation. However, the appellant failed to produce on record any evidence to establish that he had in fact supplied Metallic Yarn worth of said amount to the respondent No.1 to justify issuance of the alleged cheques towards fulfilment of an obligation under the sale transaction. It has been admitted by the appellant in his cross-examination that he has not produced any proof regarding supply of said products to the respondent No.1. Besides, the I.O. A.S.I. Amir Ghayas (PW-6 at Exh.8) has also admitted in his deposition that :the appellant did not hand over him any document to show business transaction between him and the respondent No. 1.
7. Contrary to the claim of the appellant regarding supply of Metallic Yarn, it is the plea of the respondent No.1, as recorded in his statement on oath under section 342, Cr.P.C., that he had business terms with the appellant and he used to obtain Metallic Thread from him on credit basis and he had issued cheques in advance upon the condition that whenever the appellant will supply material to him, the said cheques would be encashed; however, the appellant instead of supplying the requisite material to him, fraudulently presented the cheques referred to in FIR for encashment and then he lodged the FIR against him. Hence, heavy burden lied upon the appellant to prove that the subject cheques were issued by the respondent/accused against the alleged supply of Metallic Yarn to respondent/accused for fulfillment of an obligation, which he could have proved easily by producing requisite record of his supply, but he failed to do so. Hence, the Trial Court rightly recorded acquittal of the respondents/accused by extending them benefit of doubt.
8. The material on record approves the assessment of the Trial Court: hence, the prosecution has failed to bring home guilt of respondents/accused beyond reasonable doubt. It is well settled principle of law that for basing conviction against an accused there should be strong evidence before the Trial Court and if the doubt, even slightest, arises in the prudent mind as to the guilt of the accused, benefit of the same has to be extended in favour of the accused.
9. I do not find any merit in arguments of learned counsel for appellant. The Trial Court has recorded the reasons for its order 01 acquittal which are based on evidence on record and the conclusion drawn by it as to the innocence of accused is appropriate.
10. It may also be observed that the extraordinary remedy of an appeal against an acquittal is different from an. appeal against the judgment of conviction and sentence because presumption of double innocence of the accused is attached to the order of acquittal. Thus, on the examination of the order of acquittal as whole., credence is accorded to the findings of the subordinate Court whereby the accused had been exonerated from the charge of commission of the offence.
Therefore, to reverse an order of acquittal, it must be shown that the acquittal order is unreasonable, perverse and manifestly wrong. The order of acquittal passed by the Trial Court which is based on correct appreciation of evidence will not warrant interference in appeal. In the case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), the Hon'ble Supreme Court while dealing with the appeal against acquittal has been pleased to lay down the principle, as under:- "An accused is presumed to be innocent in law and if after regular trial he is acquitted, he earns a double presumption. of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference."
11. In view of above reasons, the impugned acquittal order does not suffer from any illegally or infirmity and misreading or non-reading of evidence leading to miscarriage of justice; therefore, the same is not open for interference by the High Court under section 417 (2) Cr.P.C. This criminal acquittal appeal, therefore, stands dismissed, accordingly.