PLJ 2021 Cr.C. (Quetta) 89
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 435 & 439--Pakistan Penal Code, (XLV of 1860), S. 489-F--Criminal revision--It is case of prosecution that accused/appellant has purchased different kind of vehicle worth of Rs.80,50000/- and issued cheques of Mezan Bank Quetta, wherein due to insufficient amount cheques were dishonored--prosecution in order to substantiate its case produced five witnesses--record depicts that statement under Section 161 Cr.P.C. of Operation Manager of Mezan Bank Quetta was recorded 09.12.2013 while statement of PW-4 was recorded on 15.12.2013, meaning thereby statement of both witnesses were recorded with delay of more than one month without explanation--Where statement of witnesses recorded with delay, it costs doubt in their statements--veracity of witness is reduced to nil--Conviction on basis of belated statement cannot be sustained--Prosecution failed to justify recording of statement at such a belated stage--Prime question is that whether any business transaction between complainant and accused had taken place or not--Contention of complainant does not appeal to reason--complainant neither produced any agreement in respect of Sales of vehicles nor produced legal document of any vehicle before Investigating Officer or Court--complainant has not produced from whom he purchased vehicles--Even in FIR registration, chassis and engine numbers of vehicles were not mentioned--complainant failed to produce document of any vehicle from Excise and Taxation Department--Bare reading of referred section shows that cheque must be issued dishonestly for payment of fulfilment of an obligation whereas mere issuance of a cheque, which subsequently dishonored does not constitute an offence under Section 489-F, P.P.C--It means first proved whether any transaction has taken place or not--In instant case prosecution examined PW-4, whose statement depicts that no transaction has taken place in presence of referred witnesses--Held: Defence is not required to create serious doubt in case of prosecution case, if a slightest doubt arises in prosecution case even then accused is/are entitled to benefit of same not as matter of grace but as a right--Prosecution has miserably failed to prove charge against appellant beyond shadow of reasonable doubt. Thus, petition is accepted.
[Pp. 91, 92 & 93] A, B, C, D & E
2017 SCMR 486, 2018 PCr.LJ 106 and PLD 2015 PCr.LJ 143.
Mr. Nadir Ali Chalghari, Advocate for Petitioner.
Mr. Abdul Latif Kakar, Addl. P.G. for State.
Date of hearing: 22.11.2019.
PLJ 2021 Cr.C. (Quetta) 89
Present: Abdul Hameed Baloch, J.
versus
STATE--Respondent
Crl. Rev. No. 9 of 2018, decided on 25.11.2019.
Judgment
This criminal revision petition is directed against the judgment dated 11.10.2017, (the “impugned judgment”) passed by the learned Judicial Magistrate-X/MFC, Quetta (the “trial Court”) and the Judgment dated 08.02.2019, passed by learned Additional Sessions Judge-III, Quetta (the “appellate Court”) whereby the conviction and sentence recorded by the trial Court under Section 489-F, P.P.C. for a period of six months rigorous imprisonment (RI) with fine of Rs.30,000/-, in default whereof further one and half months SI, was upheld by the appellate Court.
2. The relevant facts as narrated in the FIR are that on 05.11.2013, the complainant Malik Khudai-e-Rahim lodged an FIR No. 257/2013 with Police Station City Quetta, alleging therein that in pursuance of business deal the accused/convict handed over various cheques total amounting to Rs.80,50000/-against the payment of vehicles. All the cheques were presented to the concerned banks on their mentioned dates for encashment but the same cheques could not be encashed due to insufficient balance in the account.
3. After usual investigation, the challan of the case was submitted before the trial Court. The convicts/petitioners did not plead guilty to the charge and claimed trial. The prosecution, in order to substantiate the charge, produced as many as (05) witnesses. Thereafter, the statement of the petitioner as envisaged under Section 342, Cr.P.C. was recorded, though he professed his innocence, but did not opt to record his statement on oath nor produced any defence witness. On conclusion of trial, the learned trial Court convicted and sentenced him in the aforesaid terms, while the appeal against the said conviction was also dismissed by the appellate Court.
“Again there is another doubtful aspect of the case because Nazar Hussain (PW-9), the father of the deceased who according to the FIR was stated to be guarding the dead body, on arrival of the local police to the spot, however, in the very examination in chief at page/20 of the paper book he has squarely stated that he joined the investigation after one month and one day after the occurrence. There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the statement of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon.”
6. Before parting to judgment, it is necessary to reproduce Section 498-F, P.P.C. as under:
“489-F. Dishonestly issuing a cheque. Whoever dishonestly issues a cheque towards re-payment of a load or fulfilment of an obligation which is dis-honoured 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 band to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.”
12. It has been established from the above, that the complainant of the case has absolutely failed to produce any single documents in the shape of agreement/receipt etc. showing that any transaction of vehicles were carried out in between the parties. The complainant has also not produced any agreement to the effect that any agreement with regard to any sort of business has been carried out between the complainant and the petitioner. Suffice to state here that a cheque being mode of payment must appear to have been issued against consideration of business transaction 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 backed with no meaningful transaction creating an instant liability of payment of the amount thereof, against certain consideration involved therein, no criminal liability would prima facie occur 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 dishonoured.”
8. Here it may not be irrelevant to state that the defence is not required to create serious doubt in the case of prosecution case, if a slightest doubt arises in the prosecution case even then the accused is/are entitled to the benefit of the same not as matter of grace but as a right. In this regard reliance is placed on the case of Sher Umer Khan v. Khan Put 2015 PCr.LJ 143.
In view of above, I reached at the irresistible conclusion that the prosecution has miserably failed to prove the charge against the appellant beyond the shadow of reasonable doubt. Thus, the petition is accepted and the impugned judgment dated 11.10.2017 and judgment dated 08.02.2019, respectively passed by the learned Judicial Magistrate-X/MFC and Additional Sessions Judge-III, Quetta are set aside. The appellant/convict is acquitted of the charge in case FIR 257/2017, under Section 489-F, P.P.C., registered with Police Station City, Quetta. The appellant is on bail, his bail bonds stand discharge.
(A.A.K.) Petition accepted
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