2016 P Cr (PLP)

MISS AALIA NEELUM, J.

By means of instant appeal under section 417(2A), Cr.P.C., the appellant seeks conviction of respondents Nos.1 and 2, namely, Mst. Shahnaz Parveen and Fayyaz Ahmad, who being involved in case FIR No. 443 dated 29.9.2000 registered under sections 420, 468, 471, 467, P.P.C. at Police Station Lower Mall, Lahore were tried by the learned trial court and ultimately respondents Nos.1 and 2 were acquitted vide order dated 09.4.2011 which is liable to be set aside.

2. According to the prosecution story, one of the accused Dr. Riaz Ahmad (since dead) prepared a forged general power of attorney dated 07.12.1974, witnessed by Muhammad Mohsin, Naib Court and Muhammad Aslam. Later on, on the basis of alleged forged general power of attorney Dr. Riaz Ahmad (since dead) got transferred the property of the complainant in the name of his wife, namely, Mst. Shahnaz Begum accused and also transferred the ancestral property in the name of his son Fayyaz Ahmad accused.

3. During the trial of the case, accused Dr. Riaz Ahmad had died on 19.01.2007 and proceeding to his extent were abated.

4. Earlier respondents Nos.1 and 2 filed application under section 249, Cr.P.C. on the sole ground that civil litigation between the parties i.e. the complainant and respondents Nos.1 and 2 is pending before civil court regarding execution of sale deed on the basis of alleged forged general power of attorney and criminal proceedings be stopped till decision of civil court but the said application was dismissed vide order dated 07.12.2006 by the learned Judicial Magistrate Section 30, Lahore and prosecution was ordered to produce its evidence.

5. After submission of the challan, the learned trial court framed the charge against the accused-respondents Nos.1 and 2 but they pleaded not guilty and claimed their trial. During the trial Haji Jamil Ahmad, complainant himself appeared as PW-1 and Ex.P1 was marked. Thereafter, respondents Nos.1 and 2 submitted application under section 249-A, Cr.P.C. seeking their acquittal on the grounds that no allegation of cheating or preparation of forged general power of attorney was levelled against them; that not a single allegation regarding preparation of forged general power of attorney or cheating is levelled against them and prosecution has failed to prove the guilt of the accused beyond reasonable doubt and same was accepted by the learned trial court, against which present appeal has been preferred by the appellant-complainant against the accused/respondents Nos.1 and 2.

6. Challenging the order of acquittal of respondents Nos.1 and 2, the learned counsel for the appellant has submitted that accused Dr. Riaz Ahmad (since died) had prepared a fictitious and bogus power of attorney in his name and executed the same while transferring the property in the name of his wife and son, namely, Mst. Shahnaz Parveen and Fayyaz Ahmad and thus they have committed the offence with active connivance of each other that respondents Nos.1 and 2 are the beneficiaries of the sale deed prepared on the basis of fake power of attorney; that second application under section 249-A, Cr.P.C. is not maintainable as earlier one was dismissed and lastly stated that the impugned order is liable to be set aside.

7. Resisting the same, learned counsel for respondents Nos. 1 and 2 stated that neither there is any evidence to show that respondents Nos.1 and 2 had prepared the forged general power of attorney nor any single word of allegation has been leveled against them by PW-1, Haji Jamil Ahmad so the ingredients of sections 468, 471, 467, P.P.C. are not made out. Further submitted that burden of proof is heavily upon the shoulder of the prosecution witnesses but failed during the evidence. He further submitted that unless the order of the learned trial Court is perverse, it can be set aside, if two views are possible, the view favouring the accused to be taken into consideration so the learned trial Court has considered all the facts in a proper perspective and comes to correct conclusion and as such the appeal in hand be dismissed.

8. I have considered the arguments of the learned counsel for the parties and have also examined the record as well as relevant provisions of law.

9. While deciding the appeal in hand, this Court has to decide whether the charge against respondents Nos.1 and 2 was groundless and whether from the contents of the written complaint Ex.P1 as well as from the statement of Haji Jamil Ahmad (PW-1), any offence against respondents Nos.1 and 2 is made out or not. PW-1 Haji Jamil Ahmad, complainant of this case while appearing in the witness box had not uttered even a single word in his statement regarding involvement of respondents No.1 and 2 whereas all the allegations were levelled against the accused Dr. Riaz Ahmad (since dead). The complainant in his examination-in -chief while appearing as PW-1 had neither alleged that respondents Nos.1 and 2 have committed any cheating with the complainant nor they prepared any forged document to commit fraud but it has been alleged that respondents Nos.1 and 2 used the same as genuine and as such this Court has constrained to hold that ingredients of section 420, P.P.C. have not been made out against respondents Nos.1 and

2. However, it is appropriate to consider section 420, P.P.C. which read as under:- Section 420: Cheating and dishonestly inducing delivery 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 of 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. Ingredients of section 420, P.P.C. are as under:- (1) Accused cheated the complainant. (2) Accused did so dishonestly. (3) Thereby induced the complainant:- (i) to deliver some property to the accused or to some other person. (ii) To make, alter or destroy the whole or any part of the valuable security or anything which was signed, sealed and which was capable of being converted into valuable security.

10. While considering the contents of the FIR and the examination-in-chief of the complainant (PW-1) it appears that no allegation has been levelled against respondents Nos.1 and 2 in his deposition. As per examination-in-chief, alleged forged general power of attorney was prepared by the said accused Dr. Riaz Ahmad (since dead). Whereas the offence falling under section 468, P.P.C. is concerned, it is to see that whether accused-respondents Nos.1 and 2 forged the alleged general power of attorney. Now, it is appropriate to incorporate the ingredients of section 468, P.P.C., which is as follows:- (1) Document in question is forged. (2) Accused forged it. (3) In forging he intended that it shall be used for cheating. It is an admitted fact that the complainant (PW 1) alleged that accused Dr. Riaz Ahmad (since dead) had prepared and used forged general power of attorney. Admittedly, the complainant (PW-1) has failed to state even a single word regarding involvement of respondents Nos.1 and 2 in preparing of forged general power of attorney or they were witnesses of the said alleged documents. Hence, I am of the view that the ingredients of section 468, P.P.C. have not attracted against respondents Nos.1 and 2.

11. By considering the examination-in-chief, no allegation has been levelled by the complainant (PW-1) that respondents Nos.1 and 2 had used registered sale deed as genuine document executed on the basis of forged general power of attorney and as such there is no iota of evidence against respondents Nos.1 and 2 that they cheated dishonestly to the complainant and used forged document as genuine. So I am of the view that the ingredients of sections 420 and 471, P.P.C. are not made out. In such circumstances, respondents Nos.1 and 2 are not guilty for the offence under section 471 read with section 468, P.P.C.

12. As far as contention of the learned counsel for the appellant that after dismissal of earlier application under section 249-A, Cr.P.C., second application on the same subject is not maintainable, is misconceived. From the record, it reveals that respondents Nos.1 and 2 earlier moved application under section 249, Cr.P.C. which was dismissed by the learned trial court vide its order dated 07.12.2006. Later on, respondents Nos.1 and 2 moved another application under section 249-A, Cr.P.C. and the learned Magistrate acquitted the accused/respondents Nos.1 and 2 on 09.04.2011 whereby he came to the conclusion that the charge was baseless. For ready reference sections 249, Cr.P.C. and 249-A, Cr.P.C. are reproduced as under:-

249. Power to stop proceedings when no complaint. "In any case instituted otherwise than upon complaint, a Magistrate of the first Class, or with the previous sanction of the Sessions Judge any other Magistrate may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction; and may thereupon release the accused." 249-A. Power of Magistrate to acquit accused at any stage. "Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence." While relying upon the statement of the complainant and Exh.P1, this court has persuaded to hold that the order passed by the learned trial court is well versed and based upon sound reasoning, therefore, while adopting peculiar circumstances I am not inclined to interfere in the impugned order rendered by the learned trial court which is not perverse, as it has been observed by the Hon'ble Supreme Court of Pakistan that in such circumstances, acquittal earned by an accused should not be disturbed. Reliance has been placed on the case reported as Jahangir v. Amanullah and others (2010 SCMR 491). Since the learned trial court did not stop the proceedings under section 249, Cr.P.C. but after recording the statement of the complainant as PW1, accepted the application moved under section 249 A, Cr.P.C. seeking acquittal of respondents Nos.1 and 2 and as such the learned trial court has rightly come to the conclusion that charge against respondents Nos.1 and 2 has become groundless after recording of examination-in -chief of the complainant (PW-1).

13. Consequently, this Criminal Appeal is devoid of any force and the same is hereby dismissed as the learned trial court has not committed any illegality or material irregularity in exercise of its jurisdiction vested in it. HBT/J-15/L Appeal dismissed.