2011 PLP 1966 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Nasir Abbas (appellant) having served as a Ward Servant in the Tehsil Headquarter Hospital for 2-1/2 years was proceeded against for allegedly procuring the said job by forging the appointment order in terms of the case registered vide F.I.R. No.15 of 2001 dated 20-1-2001 under sections 380, 420, 468, 471, P.P.C. at Police Station Kallur Kot Bhakkar.

2. The prosecution story as given in the F.I.R. briefly stated is that in the enquiry conducted with regard to appointments made on political considerations since 1985, it came to light that the appellant forged an order/document for his appointment as Ward Servant in Tehsil Headquarter Hospital. During trial, the prosecution examined five witnesses. P.W.1 is Dr. Khalid Yazdani, M.S. Tehsil Hospital Kallur Kot who alleged that on enquiries made with regard to bogus appointments of the staff, it was found that appellant's letter of appointment was fictitious; that he was asked to produce the original but he failed to do so. In cross-examination, he admitted that allegedly fictitious appointment letter Exh.PB produced in Court was not the original copy of the said forged document but was an attested copy and further that the appellant did not forge the said document in his presence. P.W.2 is Muhammad Khalid Masood. He is a Junior Clerk. His statement is to the effect that during enquiry the allegedly forged appointment order was sent to Director Health Services, Sargodha for verification when it was found that the same was forged. However, in cross-examination, he admitted that the real culprits of the forgery in question were Abdul Karim, Junior Clerk and Muhammad Shafaqat and that they had received a sum of Rs.12,000 as illegal gratification for procuring the said job by forging the appointment order and the appellant was made to believe that the M.S. Tehsil Headquarter Hospital had issued the appointment order. He further added in cross-examination that the afore-referred culprits had given Rs.40,000 to the investigating officer to declare them innocent. P.W.3 is Muhammad Iqbal Dispenser. His testimony is of formal nature and is not of much consequence for the prosecution. P.W.4 is Noor Muhammad Inspector who arrested the accused and again appeared as P.W.5 to identify the signature and investigation conducted by Muhammad Nawaz Sub Inspector who in the meanwhile had died. He admitted in cross-examination that the said Muhammad Nawaz Investigating Officer did not declare the appellant to be guilty. However, he added that he found the appellant to be guilty. P.W.6 is Muhammad Farooq A.S.-I. He received the complaint Exh.PA on the basis of which F.I.R. Exh.P/1 was registered. P.W.7 is Ameer Abbas S.-I. who partially investigated the case.

3. The accused when examined under section 342, Cr.P.C. denied the prosecution story. In answer to the question as to why the case was registered against him, he alleged that one Abdul Karim, Clerk in the Tehsil Headquarters Hospital got him appointed for which the appellant had to pay Rs.15,000 as illegal gratification. He added that he served as Ward Servant for about 2-1/2 years during which his salary was enhanced twice and then he discovered that the said Abdul Karim had committed forgery and fraud with him. The learned trial Court/Magistrate section 30 vide its judgment dated 10-6-2010 convicted him under sections 420, 468, 471, P.P.C. and sentenced him to five years' RI as also fine of Rs.5,000 under sections 420, 468, P.P.C. and to undergo RI for three years with fine of Rs.5,000 under section 471, P.P.C., in default hereof he was to undergo SI for six months.

4. Learned Additional District and Sessions Judge dismissed the appeal vide judgment dated 14-4-2011 and upheld the conviction. This was maintained by the learned High Court vide the impugned judgment, hence this appeal.

5. Learned counsel for the appellant, in support of this appeal, submitted that there is no evidence whatsoever of forgery against the appellant; that the original forged appointment order was not produced in Court; that it is in evidence that the real culprits of forgery were two employees of Tehsil Headquarter Hospital Kallurkot who were let off by the investigating officer after obtaining illegal gratification and that appellant who was a petty Ward Servant was convicted without there being any proof of his committing any forgery.

6. Learned Additional Prosecutor-General though defended the impugned judgment but on Court query frankly conceded that there was no evidence of forgery against the appellant.

7. We have considered the submissions made and have gone through the evidence on record.

8. Before dilating on the conduct of the appellant as to whether he committed the offences under which he was tried and convicted in the light of the evidence led during trial, it would be pertinent to refer to the penal provisions under which he stands convicted. These are as follows:-- "

420. Cheating and dishonestly inducing deliver of property.

Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable or being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

468. Forgery for purpose of cheating.

Whoever commits forgery, intending that the documents forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be liable to fine.

471. Using as genuine a forged document.

Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document."

9. While examining the judgment of the trial Court, we noted with dismay that the Court besides non-reading material evidence on record, did not keep in view requirement of proof of two essential elements of an offence to warrant a finding of guilt i.e. mens rea and actus reus. The age old Latin phrase epitomizes this concept, "actus non facit reum nisi mens sit rea", which means that the act does not make a person guilty unless the mind be also guilty. Actus reus in simple parlance is the actual act of committing some offence contrary to the law of the land and mens rea is the intent to commit the said offence. If either of the elements is missing, the conduct would not attract a penal provision unless it is a case of strict liability wherein the absence of mens rea may not be fatal to the prosecution. The wording of section 420, P.P.C. indicates that the afore-referred two ingredients are prerequisites for trying and punishing an accused under this provision. For instance 'cheating dishonestly' is indicative of the mens rea whereas inducing a person "to deliver any property to any person, or to make, alter or destroy" constitutes the actus reus. In section 468 of the Pakistan Penal Code, two essential elements of the offence are 'forgery' and 'cheating'. 'Cheating' (section 415 of the Pakistan Penal Code) inter alia includes element of deceiving a person fraudulently or dishonestly with a view to induce the person so deceived to do something or to omit to do something which he would not have done or omitted, if he had not been so deceived. The actus reus under section 468, P.P.C. is the making of a false instrument whereas the mens rea is three fold i.e.:-- (i) that the document is used to induce someone to accept it as genuine; (ii) that the person before whom the document is produced will accept it as genuine and in so doing he will do some act or omit to do something to his own or someone else is damaged or injured or is intended to "support any claim or title" or with an intent to commit fraud; and (iii) that the maker of the false instrument/document is aware that the document in question is false.

10. Section 471 of the Pakistan Penal Code is attracted when a person though is not a maker of the forged document uses it as genuine 'fraudulently' or 'dishonestly' about which he knows, or has reason to believe to be a forged document. Thus under this provision the actus reus would be the act of using a forged document as genuine and the mens rea would be his dishonest intent and the knowledge that the document is forged.

11. In the instant case, we find that neither it is alleged nor there is any evidence to the effect that the appellant was the maker of the allegedly forged appointment order. Admittedly on the basis of the said document he worked for more than 2-1/2 years during which his pay was twice enhanced. He was a menial worker perhaps of the lowest grade in the Tehsil Headquarter Hospital. After joining the service and during a span of 2-1/2 years that he served, the allegedly forged appointment order must have been seen by his superiors; must have been in the knowledge of the appointing authority as also of the Drawing and Disbursing Officer. This silence/inaction may be a pointer to a different culprit. As per the First Information Report (F.I.R.), there was a general inquiry regarding political appointments made since 1985 and during the said inquiry it came to light that the appointment order was forged. It appears that the appointment in question might have been irregular/illegal and made under political influence and those responsible may have removed it from the record to avoid any liability in the enquiry that preceded the lodging of F.I.R. Perhaps, that is why the original document which was allegedly forged was not produced during trial. To prove the charges under sections 420 and 468, P.P.C., the prosecution had to prove that the appellant had cheated and forged the document. P.W.2 Muhammad Khalid Masood, in his cross-examination, volunteered to say that the appellant had to pay a sum of Rs.12,000 as illegal gratification to two officials of the hospital namely Abdul Karim and Muhammad Saeed who procured the appointment order and the appellant "was made to believe that the M.S. Tehsil Headquarters Hospital had issued the appointment order" whereafter he joined the service as Ward Servant and started receiving salary since 1998. This statement would cast serious doubt on the prosecution case and it cannot be said that the afore-referred charges stood proved against the appellant beyond reasonable doubt. The conviction recorded therefore would not be sustainable. In Syed Ali v. Nawab Siddiq Ali Khan (1969 SCMR 567), this Court allowed the appeal and annulled the conviction where the prosecution had failed to establish dishonest deception on part of the appellant. The Court observed as follows:-- "Under section 420 it is necessary to establish dishonest deception of the person deceived. Dishonest intention is a state of the mind and is generally to be ascertained from the conduct of the accused and the surrounding circumstances. It is a matter for consideration whether the independent scrutiny by the office and its note to the Assistant Commandant were not responsible for the error. In our opinion, in this respect the prosecution evidence seems to be scanty and not such as can sustain the conviction of the appellant under section 420, Penal Code."

12. This brings us to conviction under section 471, P.P.C. This is an independent provision and even if the prosecution fails to prove its case under the afore-referred sections, the conviction under section 471, P.P.C. can be maintained if the evidence led proved the charge beyond doubt. The crucial questions which came up for consideration are two fold; (i) whether the appellant used the appointment order/the allegedly forged document as genuine and (ii) if so, did he do so fraudulently or dishonestly or having reason to believe it to be a forged document? There is no denying the fact that appellant was beneficiary of the document in question and it was considered by the department to be a genuine document but the prosecution ought to have led evidence to show that the appellant knew or he had reason to believe that the said appointment order was a forged one and that he produced it fraudulently with a guilty intent. Merely because he was a beneficiary would not prove in the facts and circumstances of this case that he knew or had reason to believe that it was a forged document. Moreover, since it has not been alleged that he forged the document, he cannot be considered to have known that it was a forged document. None of the witnesses alleged that the appellant knew the order to be so. In fact Khalid Mehmood (P.W.2), an official of the Tehsil Headquarter Hospital in his cross-examination names two officials of the Hospital to be the real culprits who procured the document in question and the appellant was told by them that the M.S. of the Hospital had issued the appointment order and that appellant did not know that it was a forged document. He added that the afore-referred officials had paid a sum of Rs. 40,000 to the investigating officer to declare them innocent. It is repellent to commonsense that an outsider could forge his appointment order, assume the charge and serve for a period of more than two years by hoodwinking everyone in the department. It is not believable either that if the appellant had known that it was a forged document he would pay illegal gratification. In the afore-referred circumstances, the existence of mens rea either for forging the document or using it knowingly cannot be said to have been proved. No wonder even the Police Officer who initially investigated the case namely Muhammad Nawaz S.-I., declared the appellant to be innocent. The non-production of the original forged document further eroded the credibility of the prosecution case. In Gopalakrishna Heggade (

11. Crl.L.J. Reports 401), the Court took a similar view and acquitted the accused by holding as follows:-- "The document, Exhibit D, is merely a copy of the alleged false document and does not come within the definition of a false document. The conviction under section 71, Indian Penal Code, cannot, therefore, stand." 12-A. The learned Additional Prosecutor-General, in all fairness, on court query, conceded that there was no evidence of forgery against the appellant. In The State v. Rub Dino Sheikh (2003 SCMR 341) this Court upheld the acquittal under the similar offences and circumstances and held as follows;-- "It may be pointed out that forgery is a question of fact which is to be proved by evidence which in the instant case prosecution has utterly failed. In the instant case neither original sanction orders alleged to have been forged have been produced nor evidence with regard to the fact that the respondents/accused were the persons who made the said forged signatures on the said sanction orders. Mere fact that signatures on the photo-copy of sanction orders were not in agreement with that of admitted signatures of Section Officer Rao Abdul Rasheed would not prove the fact that the alleged signatures on the sanction orders were made by the respondents/ accused so as to hold the respondents for commission of an offence of forgery. Such sanction orders must be proved to have been signed or made by the accused/respondents. There is no evidence on record connecting the respondents/accused with the commission of forgery or forgery made for the purpose of cheating so as to prove that the forged documents were prepared by the respondents/accused. It may further be pointed out that the learned Single Jude in the concluding para has mentioned that the learned State Counsel frankly conceded that the prosecution could not prove the case against the respondents/accused beyond reasonable doubt. Before us also the learned Additional Advocate General conceded that there was no evidence connecting the respondents/accused with the commission of offences."

13. For what has been discussed above, this appeal is allowed. The impugned judgment is set aside and the appellant is ordered to be released forthwith, if not required in any other case. These are the detailed reasons for our short order of even date. M.H./N-16/SC Appeal allowed.