APPEAL AGAINST CONVICTION U/S 408 CR.P.C


IN THE COURT OPF DISTRICT & SESSION JUDGE AT KARACHI (CENTRAL)

Cr. APPEAL NO.         /2017

Muhammad Ahmed @ Muhammad Sohail,
S/O Muhammad Ismaiel, Muslim, Adult,
R/O Flat No: B-303, Kashana Arcade,
Block-C, North Nazimabad,
Karachi.             ………………………                      ……………………APPELLANT
                                                                 
VERSUS

The State ……………………         ………………………………………..   RESPONDENT
                                                    F IR No. 153 /2015
                                                    U/S. 420/489-F/506/34 PPC
                                                    P.S: North Nazimabad

APPEAL  AGAINST CONVICTION U/S 408 CR.P.C

Being aggrieved and dissatisfied with the judgment dated 19-08-2017, passed by the learned 9th Civil Judge & Judicial Magistrate Karachi Central, whereby the learned judge / judicial magistrate is pleased to convict the appellant, above named, under section 245-(ii) Cr.P.C, as “to suffer simple imprisonment for 06 months & to pay fine of Rs.20,000/= rupees, failing to pay fine, the appellant will undergo one month simple imprisonment”. The appellant above named prefers this appeal with the prayer that this honorable court may be pleased to set-aside the said judgment, which is impugned herewith, and to release/acquit the appellant in consideration of following facts and grounds.
FACTS
Brief facts of the prosecution case are that on 08-9-2015, the complainant Irfan Ahmed Khan S/O Aziz Ahmed Khan had lodged F.I.R against two persons (1) appellant & (2) Muhammad Saleem S/O Abdullah, alleging there in that “I have my own business. In the year 2011, I had become acquainted with Muhammad Sohail @ Muhammad Ahmed at Malaysia and after returning back at Pakistan he had contacted me & we started partnership business of fruit export. We started this business with the name Fresh Link and its office was situated at house of Muhammad Saleem who is brother in law of Muhammad Sohail @ Muhammad Ahmed. I had invested Rs: 2100000/=. In the year 2011, I was at Lahore and during the time Muhammad Sohail sent the shipment, without my permission. Thereafter he informed me that we have loss in our business. Thereon, due to bad intentions of sohail, I had stopped said business. When we settled our account, Muhammad Sohail had given consent to return my Rs:15,00000/=. Thereafter he had given me cheques of Rs: 01,31000/= and after some time, by fraud he got returned cheque of 08 lac.  Thereafter I deposited his cheque No:02117141 of worth Rs: 05,10000/= in my account which had become bounced on 28 November 2014. Most often, Muhammad Saleem remained involved in our business transactions. Therefore I discussed with Muhammad Saleem & Sohail for bounced cheque. On 1-12-2014, at about 17:00 hours, Muhammad Saleem & Sohail had called me at office of fresh link business situated at house of Muhammd Saleem, whereat they took my signature forcibly on agreement and they threatened me for dire consequences. Thereafter whenever I demanded my money they used to issue threat of loss of life”.
After lodgment of F.I.R, the appellant had got Bail before arrest through bail before arrest application No: 1000/2015 from honorable court of 1st Additional District & Session Judge Central and had joined investigation. Thereafter upon usual course of investigation, the Challan was submitted in court - 9th Civil Judge & Judicial Magistrate Karachi Central, where the trial was held.
During trial, copies were supplied and the charge was framed upon two accused persons (1) Appellant & (2) Muhammad Saleem S/O Abdullah. The appellant & other co-accused had not plead guilty, thereon the prosecution lead the evidence of witnesses (1) Shafqat Ansari – Bank Manager operation- (2) Irfan Ahmed Khan – Complainant (3) ASI Tahir Mehmood – Witness (4) ASIP Syed Idrees Pasha – Investigation Officer (I.O), and closed the prosecution side on 28-01-2017. [Charge, Plea of accused persons, Examination of witnesses alongwith exhibits, Statement for closing the prosecution side, Challan are attached herewith as Annexure A, B, C, D, E, F, G & H].  
Thereafter the statement of accused persons u/s 342 Cr.P.C was recorded on 11-02-2017, in which the appellant had produced to take plea in defense photocopy of certified copies of same court record vide Miscellaneous application No: Nil/2015 dated 18-08-2015, which was also tagged as a separate file with R&P of subject trial / case. [Copy of record of Cr.Misc application Nil/ 2015 are attached herewith as Annexure I]
Thereafter, final arguments were heard, the judgment was made reserved for almost six months and finally the learned trial judge announced the judgment on 19-08-2017, which is impugned herewith. [Copy of judgment is annexed as J]  

GROUNDS
1.      That the appellant/accused is totally innocent & patient of intensive care. He is paralyzed and unable to walk even to move without help of any other person. His further detention can cause loss of his life.
2.    That the complainant has fabricated false story of this case with manipulations, in order to black mail for fraudulent gains & to extort more money from appellant over a dispute of settlement of account, which had already made settled in December 2014, through Police / SSP Central- Karachi Ch. Asad. In lieu of said settlement / the complainant has already received amounts and he was supposed to return the cheque involved in this case, but with collusion of police he did not do so and by concealing real facts, lodged this false FIR.
3.          That the learned trial judge did not take in account, any single plea of appellant or admitted facts and passed a judgment on wholesale acceptance of solely complainant & one sided contention.
4.          That the complainant did not produced any single witness / eye witness to prove dishonest intention of the appellant or to disclose the terms & conditions of business transactions. Further the fact requires consideration that the trustworthiness & credibility of complainant evidence, if is discarded or not believed for one accused then how it is safe or credible for other in same trial. Especially when the complainant has admitted in his evidence by saying as
A.      However at last he issued me the undated cheques of Rs:13,10000/=
B.       It is correct to say that the stamp mentioned on memorandum Ex. 3/B is of Askari Bank, city tower, Shahrah Faisal Branch & it is correct to say that cheque Ex. 3/A is of DHA Branch Karachi.
C.      It is correct to say that handwriting of name Irfan Ahmed Khan mentioned on cheque and amount hand writing Rs: 510,000/= are different.
D.       It is correct to say that is gap of dates in cheque & memorandum of almost 03 months.
E.       It is correct to say that there is no any signature of Bank officer on memorandum as Ex.3/B.
F.       It is correct to say that Affidavit as Exhibit 4/A do not contain any detail of branch bank of cheque while the affidavit as exhibit 4/A was handed over to me on 27-12-2014.
G.      I am not owner of fresh link company ever and it is correct to say that I have not produced any proof of partnership with fresh link company. Further It is correct that I have not deposited any amount in Fresh link company account.
H.  It is correct to say that I have received a cross cheque of Rs;1,50,000/= one lac fifty thousand in presence of SSP Central in his office and vol. says that police official was SP- North Karachi. Further it is incorrect that I have collected the draft of 200000/= from SSP Central office vol. says I collect the draft of 200,000/= on my name from CPO-Karachi office and also it is correct that I have received Rs: 350000/= three lac fifty thousand from Sohail till February 2015, from that office of police. 
I.      It is correct to say that I have not mentioned the details of receiving amount of Rs 350000/- three lac fifty thousand in FIR of statement.
5.       That all above stated & admitted facts were very much supportive to prove the plea in defense of accused / appellant available on same court record vide Miscellaneous application No: Nil/2015 dated 18-08-2015, which was also tagged as a separate file with R&P of subject trial / case. But the learned trial judge, why not considered these facts while passing punishment, requires interference of this Honorable court.
6.          That it is a well settled principal of law that “To constitute an offence U/S 489-F PPC, the dishonesty on part of the payer is condition precedent in issuance of cheque toward repayment of loan or fulfillment of an obligation. Mere issuance of a cheque and same being dishonored, it itself is not an offence, unless and until dishonesty on part of payer is proved”.
7.   That the impugned judgment amounts to misapplication and non-appreciation of the evidence, which is an illegality & irregularity, for which the same is liable to be set aside.
8.          That other grounds will be argued at the time of hearing of this appeal with the kind permission of this honable court.
  
  Farhan Khaliq Anwer
Karachi.                                                        Advocate for Appellant
Dated:   
      
  

IN THE COURT OF DISTRICT & SESSION JUDGE AT KARACHI (CENTRAL)

Cr. APPEAL NO.         /2017

Muhammad Ahmed @ Muhammad Sohail,
S/O Muhammad Ismaiel, Muslim, Adult,
R/O Flat No: B-303, Kashana Arcade,
Block-C, North Nazimabad,
Karachi.             ………………………                      ……………………APPELLANT
                                                                 
VERSUS

The State ……………………         ………………………………………..   RESPONDENT
                 APPLICATION UNDER SECTION 426 Cr.P.C
It is respectfully prayed on behalf of the appellant above named that this honorable court may be pleased to order for suspension of the execution of sentence & judgment appealed against till the pendency or till the decision of the accompanying appeal u/s 408 Cr.P.C, in consideration of facts & grounds narrated in accompanying appeal. As the appellant/accused is totally innocent & is patient of intensive care. He is paralyzed and unable to walk even to move without help of any other person. His proper food & proper medicine cannot be managed in detention & his further detention can cause loss of his life. Therefore in these circumstances, this application may be treated as mercy and he may be ordered for release on bail. [Copy of Medical record is attached herewith for kind consideration]

  
  Farhan Khaliq Anwer
Karachi.                                                        Advocate for Appellant
Dated:   

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