P L D 1950 Baluchistan 24 (PLP)

JUDGMENT

This is an appeal by the Crown from the judgment of the Senior Sub‑Judge and Magistrate; 1st Class, Quetta, dated. 14tkr September 1949, whereby the accused respondent was acquitted of a, charge under sections 465 and 468 of the P. P. C. This appeal was fixed by me for hearing at Sibi on 15th February 1950 and a notice to this effect was served on the Crown, through Public Prosecutor; Special Police Establishment on .25th January 19$

0. The learned Public Prosecutor did not appear on that date but I adjourned the proceedings, for a day in order to afford him an opportunity of appearing before, this Court to conduct this Crown appeal. The Inspector, Special Police Establishment, who was present, informed the learned Public Prosecutor telegraphically and also over the telephone of the order passed by this Court on 15th February 1950. As the Public Prosecutor failed to appear on 16th February 1950, there was no alternative for this Court but to proceed with the appeal in the manner laid down in section 423 of Cr. P. C. The facts of this case are set out in sufficient detail in the judgment of the trial Magistrate. I have carefully examined the records and the grounds on which reversal of the Lower Court's judgment is sought by the, Crown. The acquittal of the accused in this case is based mainly on an appreciation of law bearing on the point, which has been elaborately discussed in the judgment of the Lower Court. It is, however, necessary that while dealing with a case of this nature I should consider the case as a whole; both as to the facts and as to the law. Before I proceed to discuss the judgment of the learned trial Magistrate, who acquitted the accused on both the charges framed against him, I consider it necessary to state the grounds on which a High Court, as ' a rule, normally exercises its powers of interference in cases' where an accused person has been acquitted and where an Appeal against that acquittal has been preferred by the Crown. In this; connection, I would refer to a ruling by a Bench of the Judicial Com missioner's Court, Peshawar as reported in A I R 11934 Peshawar, P. 129 with which I am in entire agreement, that in any appeal by Government from acquittal the accused starts with a double presumption in his favour. Firstly, there is the rule that it is for the prosecution to make out their case. Until they do so beyond any reasonable doubt, the accused must be presumed to be ' innocent. Secondly, the accused having succe0ded in securing an acquittal from the Court, the Appellate Court 'will not interfere until the Crown shows conclusively that the interference of guilt is irresistible. It therefore follows that as the accused in this particular case was found innocent and consequently acquittal by the learned trial Magistrate the case for the prosecution must be irresistibly strong, if I am to set aside the acquittal and convict the accused. Moreover, it is also an established rule of law that it is not only necessary for the prosecution to prove to the satisfaction of the Appellate Court that the accused is guilty but also to prove that the grounds on which the trial Court has based acquittal of the accused are unreasonable and unsound. This High Court, on principle, will be slow to disturb .a finding of fact arrived at by a judge who had opportunities of assessing the value of evidence which the Appellate Court has not hand. An Appellate Court, pursuing this principle, will be slow to substitute a view of the fact of its own for an opposite view of the facts held by the judge who tried the case, where the latter are, upon the evidence, reasonable views, though the Appellate Court might have preferred a view of its own if the matter had been res integra. Furthermore, the presumption of innocence and the title of the accused to the benefit of any‑ doubt are certainly not lessened by the fact that he has been acquitted at .his trial. In the light of these commonly accepted principles I propose to deal with this appeal. I am mainly concerned with the license No. 106‑C (Ex. P /B.) as I find that the prosecution had conceded that there Was 40 case against the accused as regards Licenses Ex. P./C and Ex: P/D. It is evident from the records that the‑ accused has admitted having scored out name and address of the original licensee on Ex. P/B and. having substituted the name and address of Allahdad Khan under his own signature. His explanation was that at the end of September or October, 1947 the Textile Officer Mian Bashir Ahmad, while proceeding on leave, bad directed him to transfer the license Ex. P/B, which stood in the name of Mohan Lal‑Jagdish Kumar, to Allahdad Khan Nasir The Director of Food Supplies in Baluchistan ‑ on an application by one Niaz Muhammad had ordered issue of a license to him but as the latter wanted this license to be issued in the name of Allahdad Khan, the accused scored out the name of Mohan Lal‑Jagdish Kumar on license Ex. P/B and substituted that of Allahdad Khan for it with a new address. . He argued that he had done all this in good faith and had been authorised by his officers to do so. It is clear from the records that the accused has failed to prove that he held an authority to alter names 6n these licenses. I must consider whether the charges of forgery and com mission of forgery for the purpose of cheating‑brought against the accused are sustainable in the circumstances of the case. Forgery is defined in section 463 of the Pakistan Penal Code but this definition‑ is itself subject to the definition contained in section 464, P. P. C. in which the two essential elements are that the act should be done dishonestly or fraudulently. In other words, whatever may be the intention as contemplated by section 463, P. P. C. the act itself must be done dishonestly or fraudulently in order to sustain a conviction for forgery. It is obvious that every alteration of a document even though unauthorised, is not necessarily penal. In order to be penal such an alteration must be both unauthorised as well as fraudulent. It is one and not the other, the accused incurs no criminal liability for. his act under clause (2) of section 464, P. P. C. The two alterations on Ex. P/B, as already stated, are admitted by the accused to be in his handwriting and under his own signature. I agree with the learned trial Magistrate in his finding that if the accused had any intention to defraud others or to make a false document for personal gain, there was nothing to stop him from forging the signature of some other officer of his Department lawfully authorised to make such altera tions. It is also clear that as a duplicate license bearing No, 1.06‑C was issued by the Director of Food Supplies in Baluchistan in favour of another person after some time the license Ex. P/B was rendered valueless. There is also no evidence that material injury or damage was caused to anybody nor any evidence to indicate that the accused intend to cause such injury. It has also not been established that the accused, as author of toe alleged forgery, had derived any advantage from his act accordingly I agree with the learned trial Magistrate that the essential elements of the offences with which the accused was charged are lacking and that a charge under sections 465 and 468 of the P. P. C. is not sustainable. The result is that I do not find anything manifestly wrong or perverse in that conclusions at which the, Lower Court has arrived I therefore uphold the judgment of the trial Court dated 14th September 1949 acquitting the accused and dismiss this appeal. K.M.A. Appeal dismissed.