1987 PLP 1604 (SCMR)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court dated 2‑7‑1986 whereby petitioner's appeal was dismissed with the result that his convictions and sentences under section 161, P.P.C. read with sections 5(2) of Act II of 1947 and 466, P.P.C. were upheld. The prosecution case in brief is that on 4‑1‑1974, while petitioner was posted as a clerk in the office of the Assistant Commissioner, Mirpur Mathelo, he obtained an illegal gratification of Rs.1,000 from Humayoon, and thereafter prepared a false and forged allotment order in respect of land bearing survey Nos. 187‑190 of Deh Hamid Korai, Taluka Mirpur Mathelo. The alleged fraud and forgery were detected on 17‑1‑1974 when Humayoon approached Mr. Ghulam Kadir Memon, Assistant Commissioner for putting him in possession of the said land. The Assistant Commissioner reported the matter to the Deputy Commissioner who directed him to lodge a complaint with Anti‑Corruption Police Sukkur. Consequently, an F.I.R. was registered against the petitioner on 8‑8‑1974, and he was sent up for trial before the Special Judge Anti‑Corruption, Sukkur. At the trial, the prosecution examined 10 witnesses out of whom P.Ws. Humayoon, Ghulam Kadir Memon, Ghulam Abbas Jaffri, the handwriting expert, are crucial from the point of view of the arguments addressed in support of this petition. P.W. Humayoon stated that petitioner demanded Rs.1,000 from him as illegal gratification for the disposal of the correspondence in connection with his request for grant of land on harap basis. According to him he gave him the amount in three instalments. Afterwards, when he took the allotment order to the Assistant Commissioner for getting possession of the land, he told him that the allotment order was not signed by him. P.W. Ghulam Kadir Memon totally denied his signature on the letter of allotment of the land. P.W. Ghulam Abbas Juffri, the handwriting expert was examined twice. Firstly when he was examined on 3‑6‑1981, he stated that the disputed signature was not in agreement with the specimen handwriting of the petitioner. The original document was however, not produced in Court. Afterwards, when Ghulam Abbas Jaffri was examined again on 14‑11‑1983, after a period of about 2 years, he stated that his previous deposition was wrong and the handwriting on the allotment order was that of the petitioner. The learned Special Judge, however, held the petitioner guilty as aforesaid and sentenced him to one year R.I. and fine of Rs.1,000 on the first charge and 3 years' R.I. and fine of Rs.2,000 on the second charge. Being dissatisfied with this judgment the petitioner filed an appeal in the High Court which was however dismissed, as stated earlier. Mr. Muhammad Hayat Junejo, learned counsel appearing in support of the petition submits that in view of the facts firstly, that original allotment order allegedly bearing the forged signature of the Assistant Commissioner was not produced at the trial, and secondly, that the handwriting expert had categorically stated, in his first statement, that the disputed handwriting was not in agreement with the specimen handwriting of the petitioner, he cannot be held guilty under section 466, P.P.C. Learned counsel further submitted that the learned Judge in the High Court has seriously erred in drawing certain conclusions which are wholly erroneous and against the evidence recorded in this case. He particularly referred to the following passage from the judgment: "It is regretted to note that during the trial the original allotment order has been misplaced and it is argued that in absence of the allotment order conviction cannot be passed. I do not agree with this proposition on the simple ground that order Exh.2‑A was produced in Court in presence of the accused and his Advocate. The witnesses were cross‑examined except the Expert. This allotment order appears to have been got misplaced through mischief subsequently which has no bearing on the merits of the case. Mr. Ghulam Abbas, Handwriting Expert has produced the photographs of the signatures. All the witnesses have supported the case and there is nothing to show that, they had any mala fide against appellant. After having gone through the record before us we are clearly of the view that the submissions made in support of the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition. Appeal will be heard on the present record but it is open to the parties to file additional documents, if any. Petitioner will continue to remain on bail granted to him by this Court under order dated 20‑9‑1986 till the appeal is decided. M.I./K‑19/S Leave granted.