2011 PLP 176 (YLR)

ATTAULLAH KHAN J.

Syed Tabarak Hussain Shah complainant has filed this appeal under section 417(2-A), Cr.P.C. against the judgment dated 17-12-2009 passed by the Additional Sessions Judge-V11 D.I. Khan whereby the accused/respondents Nos.1 to 4 were acquitted in case F.I.R. No. 685 dated 23-11-2006 under sections 419/420/ 466/468, P.P.C. of Police Station Saddar D.I. Khan.

2. The allegations against the respondents are that they in furtherance of their common object had committed overwriting in the relevant registers in respect to the age of accused Ghulam Mustafa Shah in order to benefit him on the ground of minority in case F.I.R. No.184 dated 14-6-2002 under section 302/34, P.P.C. of Police Station Saddar D.I. Khan.

3. After completion of investigation, challan was put in Court where the accused were summoned and formally charge sheeted but they did not plead guilty to the charge and claimed trial.

4. In order to prove its case against the accused/respondents, the prosecution produced and examined 12 witnesses and closed its evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C, but neither they produced any defence evidence nor opted to examine themselves on oath under the provisions of section 340(2), Cr.P.C.

5. The learned trial Judge on evaluating the materials brought on record and in view of the arguments advanced at the bar by the learned counsel for the parties came to the conclusion that the prosecution had failed to prove its case against the accused/respondents and thus acquitted them through the judgment which is now under challenge in this appeal by the complainant.

6. Learned counsel for the appellant contended that the learned trial Court has not taken into consideration the oral as well as documentary evidence regarding the alteration in the register about the date of birth. According to him, the learned trial Court has totally failed to appreciate the evidence in its true prospective and the impugned order is thus liable to be set aside.

7. On the other hand, learned counsel for the accused/respondents argued that the dispute is regarding the date of birth of accused Ghulam Mustafa Shah in the murder case registered against him under section 302/34, P.P.C. According to him, the evidence recorded by the prosecution is totally irrelevant on the point of alleged murder of the accused. There is no ocular evidence which could prove that alteration of age was made by the accused/ respondents. He submitted that the impugned order is well-reasoned and needs no interference.

8. I have carefully scrutinized record of the case and anxiously considered the arguments of the learned counsel for the parties.

9. In this case the allegation against the accused/respondent is that the date of birth of accused Ghulam Mustafa Shah was altered from 13-8-1985 to 10-12-1985 in the register maintained in respect of village Diyal. The relevant evidence produced is in the shape of statement of Muhammad Ramzan as P.W.2. According to him, he is the custodian of the register showing the date of birth and date of death of the villagers which was handed over to him by his father who is dead now. He has stated in the examination-in-chief that he handed over the register to Tabbarak Hussain Shah who is now appellant/complainant which remained with him for about twelve days. Lateron he handed over the same to one Zelley Hussain Shah accused which remained in his possession ,for about 3;10 days.

10. Now two propositions arise here, one is as to whether the register in possession of P.W.2 was a public register and the second is whether the date of birth was altered by the accused or somebody else.

11. As far as the first proposition is concerned, reference may be made to the cross-examination of P.W.2 and cross-examination of P. W.9. P.W.2 in whose possession the register was, has stated and admitted that the register is not a public register. This witness is illiterate and he does not enter therein, dates of birth and death. It is again admitted in the cross-examination that before obtaining the register by Zelley Hussain, the same was kept for fifteen days by the complainant/ appellant Tabbarak Hussain Shah.

12. In view of his admission, the questions have been answered. The first is that the register is not a public document and has no value. Secondly before taking the register by the accused, it remained with the complainant/appellant for about fifteen days.

13. A doubt arise about committing of alteration by the complainant himself. It is not clear as to which of them has altered the entries. The weight is in favour of the complainant because the register remained in his possession prior to the accused and there is strong possibility that it is the complainant who forged the register.

14. P.W. 9 is Riaz Hussain who is Ex-Secretary of the Union Council Mandrah D.I. Khan who has confirmed in cross-examination that P.W.2 never remained as Watchman of the Union Council. He also stated that the official register never remained in possession of P.W.2.

15. Now coming to the statement of P. W.9 who is Ex-Secretary of the Union Counsel, it may be stated that this witness has produced copy of page-8 of register which is Exh.P.W.9/1. He has deposed in the Court that the date of birth of accused Ghulam Mustafa Shah is mentioned as 29-2-1985. This witness has stated nothing about any alteration that was allegedly made. He is also not witness to the alleged alteration by the accused. So his evidence would not help the prosecution.

16. The most important person in the case is the complainant/appellant Tabbarak Hussain Shah who was examined as P.W.12 in my opinion, one admission made by him in his cross-examination is sufficient to resolve the dispute.

17. The relevant admission is reproduced below:-- "It is correct that I have not seen myself the accused cutting/ tampering with birth register. It is also correct that I have no witnesses who have seen the cutting/tampering of the birth register on the part of the accused."

18. This statement of the complainant shows that there is no ocular evidence against the accused/respondents in respect of the charge levelled against them.

19. One thing more is to be considered. No benefit has been drawn by the accused from the alleged altered date. According to both these dates, the accused concerned was underage and no benefit accrued to him. So in this way, none of the accused is beneficiary of the alleged alteration.

20. From the above discussion, I have reached to the conclusion that the prosecution has failed to prove its case against the accused/respondents beyond any shadow of reasonable doubt.

21. The learned trial Judge has correctly appreciated the evidence brought on record and rightly acquitted the accused/respondents.

22. Consequently, I find no substance in this appeal which is accordingly dismissed. H.B.T./323/P Appeal dismissed.