IN THE COURT
OF SESSIONS JUDGE DADU.
Cr. Appeal No. / 2016
Shahid Ali
S/o Muhammad Suleman By caste Bat,
Now confined in Prison, Dadu-----------------------------APPELLANT/ACCUSED
VERSUS
The State
-------------------------------------------------------------------RESPONDENT
FIR No. 232 / 2015
U/S 489 F PPC
P.S. A Section Dadu.
APPEAL AGAINST CONVICTION U/S 408 CR.P.C.
Being
aggrieved and dissatisfied with the impugned Judgment dated 31-08-2016, passed
by the learned IInd civil Judge/JM Dadu,(Mr. Gul Mohammad Brohi), whereby the
Learned judge convicted the accused above named and sentenced him for offence
under section 489 F PPC to suffer the
R.I Two years and six months and to pay fine of Rs.30,000/- (Rupees Thirty
Thousand Only), in case of default of payment of fine amount, the appellant
shall suffer S.I three months more.
The appellant / accused abovenamed
prefers this appeal with the prayer that this Hon’ble Court may kindly be
pleased to call record and proceedings of criminal case no. 315/2015, The
sate versus Shahid Ali Hyderi under
section 489 F PPC, crime no 232/2015 P.S A Section Dadu from the learned the
Trial court and after hearing and examining the same, set aside the impugned
Judgment dated 31-08-2016 passed by the learned IInd civil Judge/Jm Dadu, release/discharge
him from the case on the following facts and grounds:-
Certified
Copy of the Judgement dated 31-08-2016 is enclosed herewith and marked as
annexure ‘A’.
FACTS
Succinctly the facts of the prosecution
case are that on 23-09-2015 at 2200 hours, Complainant Abdul Raheem Khushik lodged F.I.R at P.S A Section Dadu,
alleging therein that he has own land in village Gul Mohammad Brohi, District
Jamshoro, The complainant made such transaction of the land with Shahid Ali
Hyderi against consideration amount of one crore and thirty lac, who paid him
10,00,000, to him and disclosed that the remaining amount will be paid later
on, thereafter the complainant along with his relative Abdul Razzaq and
Muhammad Umar came to Dadu, and contacted Shahid Ali in respect of paying
remaining amount, who directed them to come on the Hotel situated on Dadu- Moro
road and they went there and waiting for him, when shahid came and in presence
of witnesses gave cheques of 20,00,000 each bearing cheque No: 1250424, and
cheque bearing No: 1250423 account No: 01061458451000 of Sindh Bank Dadu and
for the remaining amount he disclosed that same will be paid later on, on 08-04-2015, at 1200 hours, the complainant
presented the cheques before the Sindh Bank for encashment, but same were not
en cashed and returned to him by the Bank authorities on the ground that funds
are not available in the account, and such memo was issued. Thereafter, the
complainant along with the PWs approached to the accused Shahid Ali and
demanded money who kept him on false hopes and ultimately denied. Consequently
complainant appeared at P.S and lodged F.I.R of the incident as stated above.
The police after usual investigation
submitted challan against the appellant to face his trial.
The trial court supplied relevant case
papers to the accused vide receipt as Ex.1 and also framed formal charge
against him to which he pleaded no guilty and claimed for trial.
In order to prove its case, prosecution
examined Abdul Raheem khushik at Ex. 3 who produced the F.I.R at Ex.3 A and
dishonoured cheque as Ex.3/B Memo at Ex.3/C and P.W-2 Abdul Razaque at Ex.4,
P.W-3 Shoukat Ali at Ex.5, who produced memo of place of incident at Ex.5-A,
P.W-4 ASI Mohammad Ameen Vighio at Ex.6. The learned ADPP given up the P.W Mohammad Umar vide statement at
Ex.7, thereafter the learned ADPP closed the side of prosecution, vide
statement at Ex.8. The statement of
accused U/S 342 Cr.Pc was recorded at Ex.9. However he neither examined himself
on oath nor produced any witness in defence.
Consequently upon hearing the advocate
for accused and learned ADPP for the state, the learned trial court passed the
impugned judgment, which has been challenged through present appeal.
On the above mentioned facts the case was proceeded against the appellant
/ accused and subsequently the learned Judge convicted the accused and
sentenced him as mentioned above, hence this appeal on the following grounds:
Prior to this no such appeal has been
filed by the undersigned counsel on behalf of the appellant before this
Honorable Court.
GROUNDS
1.
That the appellant / accused is innocent and is falsely been implicated
in the case by the complainant.
2.
That the impugned judgment
recorded by the learned trial court is not sustainable in law and facts.
3.
That the trial court has failed to consider that there are material
contradictions and glaring discrepancies in the deposition of the prosecution
witnesses.
4.
That the trial court has not properly appreciated the evidence brought on
record.
5.
That the trial court has failed to consider that there was mismatch of
signature on the alleged cheque.
6.
That the trial court has also failed to consider that both witnesses are
close relative to the complainant and they are interested witnesses.
7.
That the learned trial court has erred in considering and giving weight
to material contradiction kept on record.
8.
That it is well settled principle of law that if any slightest doubt rise
in the case, the benefit always goes in the favour of accused, but the trial
court while awarding the impugned judgment did not consider the said law.
9.
That the order of the learned Magistrate is not speaking one and is
announced in haphazard manner.
10.
That the order of the Learned Magistrate fanciful, arbitrary null void
and abinitio and symbol of ignorance of law.
11.
That the conviction of the accused is against the law, norms of justice
and equity and due good conscience and in the similar cases when the ownership
of plot is doubtful and private witnesses / Mashir nor insert such conviction
order is seems to be bad under the law and liable to be setaside.
12.
That the learned trial Court has not appreciated the entire evidence on
record while it is sufficient to acquit the appellant.
13.
That the learned trial Court has not considered the material evidence.
PRAYER
It is therefore, prayed that this Hon’ble
Court may be pleased to discharge the accused / appellant from the Crl. case
No. 315/15 and set aside the order passed by the IInd Civil Judge/JM Dadu, Vide
its Judgment dated 31-08-2016, in the interest of justice.
Dadu:
Dated: Advocate
for the Appellant / Accused.
IN THE COURT OF SESSIONS JUDGE DADU.
Cr. Appeal No. / 2016
Shahid Ali
S/o Muhammad Suleman By caste Bat,
Now confined in Prison, Dadu------------------------------APPELLANT/ACCUSED
VERSUS
The State
------------------------------------------------------------------RESPONDENT
FIR No. 232 / 2015
U/S 489 F PPC
P.S. A Section Dadu.
APPLICATION
U/S 426 CR.P.C.
It is humbly
prayed on behalf of the abovenamed appellant / accused that this Hon’ble Court
may be pleased to release him on bail till deciding the appeal U/s 408 Cr.P.C.
and suspend the conviction awarded by learned IInd Civil Judge/JM Dadu, vide
order dated 31-08-2016in criminal case No. 315/ 2015, on the consideration of
following facts and grounds:
GROUNDS
1.
That the appellant / accused is innocent and ha falsely been implicated
in this case by the Complainant.
2.
That the interim pre arrest bail was confirmed by Honorable iv th
Additional session Judge Dadu on dated 27-02-2016.
3.
That the order of the learned Magistrate is not speaking one and is
announced in haphazard manner.
4.
That the
alleged offence does not fall under the prohibitory clause of section 497
Cr.P.C.
5.
That
the prosecution has totally failed to
establish the case against the appellant / accused.
6.
That
the appeal has been admitted and it is likely to be succeeded.
7.
That it
is not known when the appeal will be decided.
8.
That
the conviction and sentence awarded to the appellant/ accused is too short to
the extant of two years and six months only.
9.
That
the appellant / accused is willing / ready to furnish solvent surety for the
entire satisfaction of this Hon’ble Court.
10.
That further and more points will be submitted at the time of hearing of
this application.
PRAYER
It is therefore, prayed that this Hon’ble
Court may kindly be pleased to suspend the conviction and release the accused /
appellant on bail on the consideration of above mentioned facts and grounds.
Prayed accordingly;
Dadu:
Dated: Advocate
for the
Appellant / Accused.
