P L D 1984 Peshawar 146 (PLP)

This judgment in Criminal Appeal No. 67 of 1983 shall also dispose of Criminal Appeal No. 72 of 1'983, as both the appellants in these two appeals were convicted and sentenced by the single judgment of Special Judge, Anti Corruption, N: W. F. P., Peshawar, dated 6‑7‑1983.

2. The prosecution story, in brief, is that Bismillah Jan appellant presented his Licence No. 1040/ACS dated 14‑2‑1974, Exh. P. 1/A, along with an S. B. shot‑gun for entering the same in the licence to Muhammad Yoasaf, Assistant, Licence Clerk, P. W.

6. The said Clerk on checking found that the licence in question bad not been issued from the Licence Branch as the number of the licence was not correct. He also suspected the correctness of the signature of Syed Mazhar Ali Shah, M.

1. C. P. W. 10, on the licence E:h. P. 1/A, and, therefore, took the licence and produced the same to Syed Mazhar Ali Shah who, on seeing the signature affixed on the licence, told Muhammad Yousaf, P. W. 6, that the signatures were not that of his and further directed him to produce the man who had brought the licence. The man was accordingly produced before him and Syed Mazhar Ali Shah, P. W_ 10, then reported the matter to the S. H. O., P. S. East Cants. vide his complaint, Exh. P. W. 10/A, on the basis of which Bakhttar Ahmad, S. H. O. P.W.11 registered the present case vide F.I.R. No.223 dated 14-3-1974, copy Exh. P. W. I 1 /A. The

1. O. took into possession one S. B. shot‑gun, Exh. P. 3, licence copy Exh. P. 1/A and 20 live cartridges Exh. P. 2, vide memo. Exh. P. W. 7/A.

3. After the close of the prosecution evidence, the learned Special Judge examined the appellants alongwith Habibud Din, the acquitted‑accused, who pleaded not guilty and produced no defence. Zahir Gul, Inspector/Hand writing Expert, Muhammad Yousaf, Muhammad Humayun and Sultan Sarwar, Head Clerk, were examined as Court Witnesses Nos. 1 to 4, and once again statements of the accused were recorded, who did not wish to produce any defence.

4. The learned Special Judge, however, ride the impugned judgment dated 6‑7‑1983 acquitted accused Habibuddin and convicted appellant Bismillah Jan under section 471, P. P. C. and sentenced him to undergo one year R. 1. and to pay a fine of Rs. 5,000 or in default to undergo further six months' R.

1. He was also convicted under section 13, Arms Ordinance and was sentenced to undergo 6 months' R. 1. and to pay a fine of R. 1,000 or in default thereof further 3 months' R.I. The same Judge also convicted appellant Abdus Sattar under section 420/468, P. P. C. read with section 5(2), Prevention of Corruption Act, 1947 aced sentenced him to suffer two years' R. 1. and to pay a fine of Rs. 5,000 or in default thereof to undergo further imprisonment for six months.

5. Dissatisfied with their conviction and sentences Abdus Sattar filed Criminal Appeal No. 67 of 1983 while appellant Bismillah Jan filed Criminal Appeal No. 72 of 1983, which are being disposed of by this single judgment, as stated above.

6. I have heard the learned counsel for the appellants and the Law Officer CO " the State, and have perused the record. The contentions advanced on behalf of the appellants by their learned counsel carry great force in them, viz. that the charge against the appellant Abdus Sattar was that be had allegedly forged two arms licences but the learned trial Judge bad acquitted him with regard to one licence whereas had found him guilty for the other licence copy; that the principle on the basis of which the learned trial Judge had disbelieved some evidence of the prosecution, the same was also applicable to the remaining evidence but had not been applied; that the prosecution failed to connect the two appellants with the alleged offences, therefore, the trial Judge summoned Court witnesses to fill in the lacuna but this time too failed to connect the appellants with the commission of the offences; that no record whatsoever of the office of the Assistant Commissioner was produced by the prosecution in their own evidence or through the statements of the C. Ws. though they were given full opportunity to show that the numbers appearing on the alleged aforesaid licences were not tallying with the aforesaid registers; that the signatures allegedly forged on the said licences were not sent along with the signatures of Syed Mazher Ali Shah, P. W. 10, to the Handwriting Expert for comparison and report, therefore, the conviction and sentences passed on the appellants were illegal and not maintainable; that no connection whatsoever had been established by the prosecution between appellant Bismillah Jan and Abdus Sattar appellant and if there was any, that was through Habib ullah accused, who had since been acquitted, therefore, the convictions of the appellants are not sustainable.

7. It is not denied that the appellant Abdus Sattar had admitted in his statement recorded under section 342, Cr. P. C. that be in addition to his own duties as Steno to Assistant Commissioner, Peshawar, was also working as Licence Clerk during the days of occurrence in the office of the Assistant Commissioner (Saddar), Peshawar. As such, the handwriting on the licences in question was admitted by appellant Abdus Sattar, but the prosecution ha miserably failed to obtain the signature of Syed Mazhar Ali Shah, P. W. I and further failed to send the same alongwith the questioned signatures to the Handwriting Expert. No such effort was made by the prosecution, therefore it could not be said with certainty that the charge of forgery bad been proved. at the trial. If any authority is needed on the point, reference can conveniently be made to a case reported in Trilochan Misra v. Munsif, Nilphamari (P L D 1949 Dacca 35) wherein the following observations were made:‑ "Penal Code (XLV of 1860), S. 467‑Body of document (receipt) written by accused but no evidence that he wrote the signature on receipt‑Con viction set aside. In the absence of any evidence to show that accused wrote the signature on the receipt, the admission by the accused he wrote the body of the document, in the circumstances arising in this case, would not be sufficient to support a charge under section 467 of the Code." This authority, in my view, is on all fours applicable to the facts of the case. Appellant Abdus Sattar has admitted in his statement, as referred to above, that as a Licence Clerk, he used to write the body of the licence. There is no report of the Handwriting Expert about the signatures appearing on the said licenses to be in the handwriting of the appellant. Therefore, the trial Judge was not legally correct in convicting the appellant Abdus Sattar under section 420/468, P. P. C.

8. Another aspect of the case which is lurking in my mind is, that the Magistrate in whose presence specimen of handwriting were obtained from the appellant, Abdus Sattar, was not produced at the trial. Which makes the prosecution case doubtful. On the view of the matter that I take, I get support from an authority Bashir Ahmad v. The State (1977 P Cr. L J 893), wherein it has bee laid down as under:‑ "Section 409‑Criminal breach of trust‑Specimen signatures of accused allegedly obtained in presence of Magistrate but such Magistrate not exa mined as witness‑No certainty of specimen signatures being accused's Relevant registers not proved to have been in possession of accused nor appellant proved to have made routine entries therein‑Evidence of Handwriting Expert, held, of no consequence in circumstances." In this case too, the relevant registers in possession of the prosecution, were not produced at the trial to show that the numbers written on the said licences were not mentioned therein. The register which the prosecution has produced at the trial was a "general" type register in which different kinds of entries has been made, such as despatch of various letters, permits etc. per statement of Misbabullah, Junior Clerk, P. W.

1. Therefore, I bold that non‑production of the Magistrate and of the relevant registers, also makes the prosecution case doubtful as against the appellants.

9. Habibuddin, the acquitted‑accused, was a source of abetment between Bismillah Jan and Abdus Sattar appellants but he has been acquitted by the trial Judge vide the impugned judgment with the remarks "that the story as given by P. W. 4, Raza Khan that he bad met accused Habibuddin and had paid him Rs. 200 to be passed on to accused Abdus Sattar has not been proved. Moreover, it is in the cross‑examination of Raza Khan P. W. 4 that he was made to sit in the police Station, East Cantonment Peshawar and was threatened by the

1. O. that in case he did not give statement in line with the prosecution case be would also be made accused in the present case. This fad alone makes the story of passing on the money to Habibuddin accused doubtful. In other words the involvement of Habibuddin accused has not been proved by the prosecution beyond reasonable doubt. In the circumstances of the present case, extend benefit of doubt to accused Habibubdin and thus acquit him". Learned counsel for the appellant produced an authority at the Bar which is cited as Muhammad Din v. The State (1970 P Cr. L J 963), wherein the observations made run as below:‑ "Penal Code (XLV of 1860), S. 468 read with S. 420‑Co‑accused acquitted of principal offence under S. 468, P. P. C.‑Nothing on record to indicate as to who committed forgery or that accused abetted offence in any way or dishonestly induced any person to deliver any property‑Mere fact of tampering with a document and deriving benefit‑Not itself enough to attract provisions of section 420, Penal Code, 1860‑Possibility that persons who could be said to have been cheated or deceived might themselves have been a party to fraud not excluded‑Conviction under sections 420 and 468, Penal Code, 1860, held, not warranted in circumstances‑Conviction set aside."

10. In the above circumstances, I hold that non‑production of the Magistrate who obtained the specimen handwriting of the appellant Abdu Sattar, non‑production of the arms registers showing the relevant entries or otherwise of the licences in question, and no report of the Handwriting Expert with regard to the questioned signatures of Syed Mazhar Ali Shah, P. W. 10 on the alleged bogus licences, make the case of the prosecution replete wit grave doubts, the benefit of which must go to the appellants. I, therefore, in respectful agreement with the authorities cited at the Bar by the learned counsel for the appellants, held that the prosecution has miserably failed to connect the appellants with the commission of the offences, charged with beyond reasonable doubts.

11. The net result of the discussions gone before is, that I accept both the appeals, set aside the conviction and sentences of the appellants, Abdu Sattar and Bismillah Jan and acquit them both. They are on bail and are discharged from the obligations of their bail‑bonds. M. Y. H. Appeal accepted.