1994 PLP 1697 (MLD)

Jamil alias Jaimal has preferred this appeal under section 476(4)(a) of the Criminal Procedure Code, assailing the legality of judgment, dated he it 1993 of the learned Additional Sessions Judge, Rahimyarkhan, whereby he has convicted the appellant under section 471, P.P.C. in a summary trial conducted under section 476, Cr.P.C. and sentenced him to undergo R.I. for 3 months days, and a fine of Rs.i'000 in default whereof to suffer further R.I. for 15 Briefly, the facts of the case are that a case F.I.R. No.139 of 1993 was registered at P.S. City Sadiqabad against Sami Ullah and others under section 365, P.P.C. for the alleged abduction of Muhammad Jamil alias Jaima the appellant, at the instance of Salabat Khan, his real brother. In this case, the accused were allowed bail before arrest by the learned Additional Sessions Judge, Rahimyarkhan. Aggrieved thereby an application for cancellation of bail was moved by Salabat Ali, complainant, which was duly supported by his affidavit, accompanied by a power of attorney carrying his signatures. It was during the course of hearing of the said Cancellation petition that Sana Ullah, one of the accused, moved an application to the learned Additional Sessions Judge under section 476, Cr.P.C., alleging therein that the signatures of Salabat Ali on the said application, affidavit and power of attorney were forged by the appellant, who was prosecuting the said application in the Court. It was further alleged that Salabat Ali complainant was arrested on 14-5-1993 and was confined in District Jail, Jacobadbad in connection with a case F.I.R. No.26 of 1992, registered under Article 3/4 of the Prohibition (Enforcement of Hadd)i Order, 1979, at P.S. Bakhshapur, and that his application for grant of bail wok dismissed by the learned Additional Sessions Judge, Kandhkot on 20-6-1993, as such, Salabat Ali was not in a position to move the said application for cancellation of bail on 12-6-1993. Learned Additional Sessions Judge issued a notice to the appellant on the said application and after procuring his attendance through bailable warrants in the sum of Rs.5,000 he resumed the summary trial against him under section 476 of the Cr.P. Code. Formal charge under section 471, P.P.C. was framed against the appellant which was denied by him, as a result whereof, the statement of Sana Ullah was recorded. The said Sana Ullah supported the contents of the said application and also tendered in evidence the application for cancellation of bail, affidavit and the power of attorney as Exhs.PA, PB and PC, respectively. He also placed on record copy of order, dated 20-6-1993 of the learned Additional Sessions Judge, Kandhkot as Exh.PE, copy of Register Scheme Ishtmal as Exhs.PF and PG, bearing Urdu signatures of Muhammad Jamil appellant. In his statement under section 342, Cr.P.C. the accused/appellant denied the allegations levelled against him. In answer the question No.2, he stated as under:

"It is incorrect, I am illiterate, I cannot sign in Urdu or English and always thumb-mark the documents, however, I have been appearing in the proceedings for cancellation of the bail, on behalf of my brother as he directed to me to do so, 1 never have committed fraud or forgery with Court in the said proceedings. This is a false case against me Salabat himself asked his counsel to move an application for cancellation of bail." The appellant, however, did not appear as his own witness as provided by section 340(2), Cr.P.C. in disproof of the charge against him, nor -did he produce any evidence in defence. On the basis of the aforesaid evidence, the learned trial Court convicted and sentenced the appellant as indicated above. Learned counsel for the appellant has vehemently argued that there is not an iota of evidence on the record to connect the appellant with the alleged crime of forging the documents as no witness has been produced by the prosecution, so as to prove that the documents Exhs.PA, PB and PC were signed by the appellant, while impersonating himself as Salabat All. It is further argued that even Chatidhry Manzoor Ahmad, Advocate, the petition-writer and the Oath Commissioner, who were the material witnesses were not produced by the prosecution to prove that the signatures of Salabat All were forged by the appellant. Learned counsel submits that no charge under section 468, P.P.C. was framed or proved against the appellant, as such, it would not be possible for the prosecution to allege that the appellant had knowingly used the forged documents as genuine. It is contended by the learned counsel that the appellant was the person who was abducted in the case and he, being an aggrieved person, was well within his right to prosecute the cancellation petition in his own name and there was no necessity for him to forge the said documents. He has laid emphasis on the point that the prosecution has badly failed to connect the appellant with the crime as neither his writing was sent to the handwriting expert nor his signatures for comparison, so as to ascertain that the said documents were forged by the appellant. On the other hand, learned State Counsel has not been able to controvert the contentions raised by the learned counsel for the appellant, rather he has rightly conceded that except the sole statement of Sana Ullah, there is not an iota of evidence to connect the appellant with the crime alleged against him. Even the statement of Sana Ullah does not disclose that the alleged forgery was committed by the appellant himself to achieve his object of cancellation of bail. I have considered the submissions made by the learned Counsel for the parties and have perused the record. I feel persuaded to agree with the contentions of the learned counsel for the appellant that there is nothing on record to prove that the appellant has forged the documents is question, as the petition-writer, the Oath Commissioner and Chaudhry Manzoor Ahmad, Advocate, who would have been the material witnesses to prove that the A signatures of Salabat Ali on the application for cancellation of bail, affidavit and the power of attorney were forged by the appellant, have not been produced by the prosecution; that the evidence of the handwriting expert could have been beneficial for the prosecution, so as to prove that the disputed signatures were forged by the appellant but neither the handwriting of the appellant nor his signatures were sent for comparison to the handwriting expert, as such, it can conveniently be said that this is a case of no evidence. Moreover, no charge under section 468, P.P.C. was framed or proved against the appellant, as such, it cannot be inferred that the appellant has used the forged documents as genuine, knowing the same to be forged ones. I have also considered the solitary statement of Sana Utah applicant but the same is not sufficient to base the conviction of the appellant, as the applicant/complainant has also placed reliance on the documents which were still to be proved to be forged documents, as observed above, there was no evidence on record to prove that the said documents were forged by the appellant, therefore, the said statement would not be of any worth, so as to be relied upon. Besides this, the appellant, being the aggrieved person, was well within his right to prosecute or pursue the matter against the accused who had abducted him and thus his presence in the Court in connection with the hearing of the petition for cancellation of bail was a natural phenomenon and it cannot be presumed that he had used the forged documents simply to justify his presence in the Court to which he was himself entitled to. For the foregoing reasons, I am of the view that the prosecution has miserably failed to prove its case against the appellant beyond any reasonable doubt. I, therefor, accept this appeal, set aside the conviction and sentence of the appellant and acquit him from the charge by extending the benefit of doubt to him. The appellant is on bail. He shall stand discharged of his bail bonds. N.H.Q./J-79/L???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.