1983 P Cr (PLP)

7. In his statement Exh. 45, appellant Muhammad Iqbal admitted, that he was Deputy Settlement Commissioner, Mirpurkhas and as such a public servant in 1966-67 and not in 1965. He denied that he was responsible as D. S. C., Mirpurkhas for issue 'of transfer orders in respect of evacuee properties at Mirpurkhas. He denied having signed or issued P. T. Ds. Exhs. 6 and 11 or the office note Exh.

8. In respect of the property in question, appellant Muhammad Iqbal stated, that the same was available for transfer since 1961, under an order of the Additional Settlement Commis sioner, which was maintained by his superiors in 1964. He spoke of Settlement Scheme No. 8, introduced in 1966 and stated that under it, the locals were entitled to apply for transfers of evacuee shops in their possession. Appellant Muhammad Iqbal denied that the writing in red ink at page 33 of-C. S. C. 4 was in his hand. He added that .C. S. C. 5 Register was to remain in record room of accountant and not with him. Appellant Muhammad 'Iqbal denied remaining prosecution allegations and added that P. W. Mashooq Hussain, Accountant was himself responsible for making adjustments in Compensation Books, for making entries in cash books and for signing the challans and that he alone has deposed against him. Appellant Muhammad Iqbal added, that he had issued order Exh. 44 on the basis of Orders Exhs. 42 and 43 and that his order was upheld in 1969 by the Additional Settlement Commissioner under the order Exh. 40.

8. The appellant and co-accused did not wish to go into the witness box, as their own witnesses and did not lead any defence.

9. The learned trial Court taking into consideration the evidence adduced before it, while acquitting accused Bashir Ahmed, convicted and sentenced the appellant abovenamed as hereinbefore mentioned and con sequently appellant abovenamed has filed the above appeal, on the grounds mentioned. in the Memo. of appeal.

10. The learned Advocate for the appellant in support of the above appeal submitted as under :- (a) That P. T. D. Exh. 6 and document Exh. 11/A alleged to bear the signatures of the present appellant, were not sent to handwriting expert and consequently in the face of appellant's denial, that these documents do not bear his signatures, appellant could not have been convicted. (b) That in spite of challan Exh. 33 being on record, the prosecution failed to examine the concerned bank to prove, that the amounts mentioned in the said challan Exh. 33 were in fact not deposited in the bank in question. In view of this the prosecution has failed to establish its case against the present appellant, beyond reasonable doubt. (c) That P. W. 1 Amin, P. W. 2 Anis Raza and P. W. 4 Muhammad Rahim had categorically stated before the learned trial court, that Exh. 11/A does not bear the signature of the present appellant, where as P. W. 3 Anis Raza and P. W. 4 Muhammad Rahim also stated before the learned trial Court, that P. T. D. Exh. 6 also did not bear the signature of the appellant. In spite of this the learned trial court, on the basis of the statement of P. W. 2 Mashooq Hussain, came to the conclusion that both the documents in question were signed by the present appellant, without taking into c3nsideration, that P. W. 2 Mashooq Hussain in order to save himself, has involved the present appellant. (d) That the learned trial Court did not take into consideration Exh. 16 and Exh. 33 which were important documents on record and as such the impugned Judgment of the learned trial Court cannot be sustained. (e) That the original application for issuance of P. T. D. by Bhojomal Exh. 31 and Exh. 8 the office note, was not put by P. W. 2 to the appellant. This important fact has not been Considered by the learned trial Court.

11. In view of the above submissions made by the learned Advocate for the appellant, he urged that the prosecution has failed to establish its case beyond reasonable doubt against the present appellant.

12. The learned Advocate appearing for the state at the outset submitted, that he was not supporting the impugned judgment in view of the above mentioned facts on record. 12. 1 have carefully considered the above submissions made by the learned Advocates before me and have gone through the record and proceedings of the learned trial court as well as through the impugned Judgment.

13. It is admitted position that P. T. D. Exh. 6 and document Exh. 11/A were not sent to Handwriting Expert, though appellant denied his signatures on both of them. But in spite of this, learned trial Court held otherwise.

14. Learned trial Court came to conclusion that, P. T. D. Exh. 6 was issued to Bhojomal, before realisation of full price. The learned trial Court failed to take into consideration Exh. 33 copy of challan, which showed that full price of the shop in question was paid by Bhojomal prior to issue of P. T. D. Exh. 6 and rejected the contention of the appellant that Bhojomal was compelled to pay price of the shop twice, on the ground that this con tention was not substantiated by the appellant. I find that the learned trial Court has not at all considered the effect of Exh. 33 dated 31-12-1966, which was produced by prosecution vis-a-vis plea of the appellant, that the price of the shop was paid by Bhojomal on 31-IZ-1966, long before issue of P. T. D. Ext. 6 dated 30-1-1967 or 20-2-1967. Learned trial Court has no rejected Exh. 33 as forged document, so as to ignore it completely.

15. I find from the impugned Judgment, that learned trial Court cam to the conclusion that it was the duty and responsibility of P. W. 2 Mashooq Hussain to verify payments and issue certificate, after consulting Register C. S. C. 5, before issuance of P. T. D. This duty in fact P. W. 2 Mashooq Hussain performed by countersigning and initialling P. T. D. Ext. 6, before the same was alleged to have been sent for signatures to appellant, by P. W.

2. However, this witness before the learned trial court stated, that without performing his duty and without verifying payment made, he initialled the P. T. D. Exh. 6 and sent to appellant. In the face of this statement of P. W. 2 even if it is accepted that Ext. 6 P. T. D. was in fact signed by the appellant. then too it cannot be said, that appellant acted contrary to usual practice and signed P. T. D. Exh. 6, on account of alleged conspiracy. I find that learned trial Court tried to get over this difficulty by stating that P. W. should also have been challaned as co-accused. I cannot agree with such conclusion and finding of the learned trial court and hold appellant liable for alleged conspiracy, in the face of the statement of P. W. 2, who has been relied upon for conviction of the appellant, specially in the absence of any, evidence on record, that compensation books produced for adjustment by Bhojomal, were bogus.

16. Keeping in view above facts on record, in my opinion prosecution has failed to establish its case against the present appellant, beyond reasonable doubt.

17. Therefore I allow the above appeal and set aside conviction of the appellant and sentences awarded to him and acquit him by giving benefit of doubt and discharge the bail bonds executed by the appellant. Appeal accepted.