P L D 1958 Dacca 341 (PLP)

The prosecution failed to establish their case of forgery. But the learned Judge has convicted the appellants on the same facts under section 193 of the Pakistan Penal Code. Mr. Hamidul Huq Chowdhury assisted by Mr. Muzammel Huq appearing for the appellants has contended before this Court that the prosecution have failed to prove that the appellants had fabricated any false evidence and further they have also failed to prove that any such false evidence. was fabricated for the purpose of being used in any stage of a judicial proceeding and, as such, the learned Judge should have acquitted them. He has relied in this connection on the case of Serajul Huq Amin and others v. Emperor (44 C W N 897). Mr. Ghani, the learned Advocate for the State, however, argues that there is ample evidence in this case to prove that the appellants fabricated this kabuliyat and evidently they intended [hat this document would be used in a future judicial proceeding on some day in support of their claim to the disputed land. He has referred us to the case of Legal Remembvancer v. AN Lai Mandal (I L R 48 Cal. 911) in support of his contention. The ingredients of the offence under section 193 of the Pakistan Penal Code are that the prosecution must prove that the accused fabricated false evidence and that for the purpose of being used in any judicial proceeding. The entire onus is on the prosecution to prove their case beyond all shadow of doubt. As we have already stated before, the prosecution failed to prove that the appellants forged the document. Section 463 the Penal Code defines forgery in the following terms "Whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery". The facts are the same in respect of both the charges, and on these facts the prosecution wanted to make out a case of forgery against the appellants, but they have utterly failed. Now the question is whether on the same facts the prosecution, have been able to establish that the appellants fabricated this kabuliyat and with the necessary intent. The original kabuliyat is not forthcoming in this case. There is nothing to show that the original was ever called for and no evidence was led to prove that the original was lost or could not be traced. No attempt was made to procure the original document. Certified copy of the kabuliyat was only put in and it was marked Exhibit

5. In order to prove that the kabuliyat, the certified copy of which is exhibit 5, was executed by the appellants, Mr. Gani relied on the evidence of P. W. 4, Harish Chandra Chowdhury P. W. 5, Joynal Abedin, and P. W. 7, Abdul Hashem Pal. He has also relied on some defence suggestions. The defence suggestions can never be taken as evidence and on these suggestions the prosecution cannot argue that their case. had been established. P. W. 4 is a clerk of the Chitoshi Sub‑Registrar's Office. There is nothing in his evidence to show that he was present when this kabuliyat was executed and registered. The register of the Sub‑Registrar's Office was called for from the office and he only brought the Register and read the endorsement wherein it was noted that the kabuliyat was purported to have been executed by this Nurul Huq Miah, son of Abramuddin Miah alias Muhammad Kala Miah, in favour Lalmohan Karmakar and it was registered on 7th February 1955, on being presented Muhammad Nurul Huq Mia and the thumb impre,ssions of the accused were taken in this document. The evidence of this witness, therefore, does not help the prosecution at all. P. W. 5 is one Joynal Abedin. Mr. Gani has said that a suggestion was given to him whether it was not a fact that the kabuliyat was not genuine and the kabalas were subsequently brought into existence by antedating them. Not a single witness of this kabuliyat was examined. P. W.

7. Abdul Hashem Pal, has of course stated in his examination‑in‑chief that a kabuliyat was written by Serajul Hui Majumdar and he was asked to attest it but he did not. He refers only to a kabuliyat and this witness never says that the particular kabuliyat which is now in question was executed by these appellants. The evidence of Anukul Chandra Karmakar to which our attention has been drawn by the learned Advocate for the State is that he has denied that the kabuliat was written in his presence on 16th January 1955, by scribe Serajul Huq Majumdar and executed by the accused and that he signed the document as an attesting witness. This also does not improve the prosecution case. The learned Judge compared some specimen signatures taken by him from Ankul and compared the same with the signature in the Stamp vendor's Register and found that these signatures were dis‑similar and the learned Judge laid great stress on this dissimilarity and concluded that Anukul had been deceived by the appellants. Under section 73 of the Evidence Act, it is true that the Cour can compare signatures, writing or seal with other signatures admitted or proved but it is the established principle of law that it is dangerous to rely on such comparison without the aid of an expert, more so, in the case of comparison between signatures taken before the Court with certain other disputed signatures. We can very well quote in this connection the observations made by Munir, now the Chief Justice of Pakistan, in his Evidence Act, 3rd Edition, page 585, wherein he observes "In order to show, that a document is in the hand‑writing of a particular person, a party may request the Court to direct and the Court may itself direct, a person present in Court to give a specimen of his handwriting to be compared with the disputed writing. But in such a case the result of the compari son will `be less satisfactory', as a person may feign or alter the ordinary character of his hand‑writing with the very view J of defeating a comparison". It is very unsafe to rely on this comparison of the signatures by the learned Judge. The prosecution have not led sufficient evidence to prove the execution of the document in question by the appellants. The stamp‑vendor would have been a very material witness in this case, and his evidence has been withheld without any explanation, and the necessary inference is that, if produced, his evidence would have been given against the prosecution. As we have already stated, the onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor and the evidence led before the Court must exclude all reasonable doubts as to the guilt of the accused. The pro secution could not take advantage of any defence suggestions. The accused never admitted the execution of this document in their examination before the Court. P. W. 9 Joynal Abedin has stated that Anukul complained in presence of the accused that the accused Kala Meah's sons, Ali Ahmad and Nurul Islam, executed 3 forged kabuliyats in their favour whereupon the accused said that the matter might be fought out in Court. This is a material circumstance appearing in the evidence against the accused but this was not put to the appellants in their examination under section 342 nor did Anukul support the statement in his evidence before the Court. Having regard to all these facts and probabilities, we are of the opinion that the prosecution have failed to prove beyond any shadow of doubt that the appellants executed the particular document in question and, as such, the conviction cannot stand. There is one other factor to be considered in this case. In order to convict a person under section 193 of the Pakistan Penal Code, the prosecution must not only prove that he fabricated false evidence but it must also prove that, in fabricating those C documents, he intended that the documents may be used in any stage of a judicial proceeding. There is no dispute that no judicial proceeding was pending between the parties in respect of this particular document. It has been contended by Mr. Gani that this document might be utilised in any future litigation some day and for some reason and so it must be held that the appellants had the necessary intent. He has in this connection relied on the case of Legal Remembrancer v. Ahi Lal Mandal, where the facts were quite' different. In that case, the accused persons unsuccess fully sought to obtain a woman in marriage and thereafter created a kabala in her favour falsely reciting that he married her and purporting to convey to her a plot of land in lieu of her dower. Their Lordships Teunon and Ghose, JJ. held "that he acted in furtherance of his desire to secure her person and this could under the circumstances be done only by judicial pro ceedings ; his intention was to use the document with its false statement in a judicial proceedings and thereby to mislead the Court, and that he was, therefore, guilty of an offence under section 193 of the Penal Code". At page 914, their Lordships observed "We have found that the statements made in this document are false. There. is extraneous evidence that the accused is on bad terms with the father of the woman Marium, and also that he has sought to obtain her in marriage. With what intention then did the accused fabricate this document ? It is suggested on his behalf in the course of argument that he was merely perpetrating a bad practical joke. He himself has offered no explanation. The only possible inference, therefore, is, that he was acting in furtherance of his desire to secure the person of this woman, and this, in the circumstances, he could only do by judicial proceedings. We can only conclude, therefore that his intention was to use this document and the false statements therein in judicial proceedings and thereby mislead the Judge". There was a clear finding in that case that the statements made in document were false. There was also an unsuccessful attempt on the part of the accused to obtain this woman in marriage but here there are no similar circumstances to indicate the intention of the appellants before us. Moreover, it has not been proved beyond all shadow of doubt that the appellants did execute this deed at all. Merely because at some distant time it might be necessary that this document might be used to support any claim of title, it, by itself, does not prove the intent required under this section. We are supported in our view by the case cited by Mr. Chowdhury in 44 C W N 897, wherein their Lordships Derbyshire, C. J. and Henderson, J. have held that the alleged fabrication of a kabinnama falsely reciting a valid marriage and a promise of a dower to the bride does not attract section 193 of the Penal Code, when there is no judicial proceeding pending or contemplated. At page 897, Derbyshire, C. J. observed "Whether there was actually this marriage or not is a matter which has been contested in the case. The learned Sessions Judge has come to the conclusion that there was no such marriage. In that finding he may have been perfectly right. But I cannot see where the judicial proceeding is in respect of which this kabinnama has been fabricated. There is no suit pending and, as far as I can see, no suit contemplated. There is a possibility, nothing more than this, that some day there may be a suit in which that kab.innama may be given in evidence ; but that moment is only a possibility. There would be an offence if the document were fabricated for the purpose of being used in some actual, pending or contemplated judicial proceeding. That condition is not satisfied here and the offence has not been committed". We entirely agree with the view taken by their Lordships in that case. So, on both the grounds, the convictions and sentences of the appellants cannot stand. In the result, the appeals are allowed, the convictions and sentences of the appellants are set aside and their bail bonds are cancelled. RAHMAN, J.‑I agree. Z. A.S Appeals accepted.