1996 P Cr (PLP)

These four Criminal Appeals Nos.36 of 1994, 41 of 1994, 46 of 1994 and 47 of 1994, filed by the appellant Shah Nawaz, against the judgment passed by the learned Special Judge Anti-Corruption, Larkana, convicting and sentencing him to suffer R.I. for 2 years and a fine of Rs.10,000 and in default to suffer R.I. for one year for offences under section 468, P.P.C. read with section 5(2) Act II of 1947, were heard together and disposed of by a short order, dated 1-6-1995 allowing the appeals for the reasons to be recorded later on. Following are the reasons of these short orders. All the four appeals arose from one and the same matter initiated on a joint application moved by Yar Muhammad, Gulsher, Muhammad Bux and Murad Khan before the S.P. A.C.E., Shikarpur and at whose directions F.I.Rs. Nos.18, 17, 15 and 16 of 1995, were registered by Ghulam Sarwar Salangi, Circle Officer A.C.E., Shikarpur. The brief facts of the prosecution case in all the four appeals are that the appellant issued bogus sale certificate of land regarding S. Nos.290, 291, 292, 293, 573, 601, 295 and 793 of Deh Purani Lalyoon, Taluka Shikarpur in the name of Abdul Razzak Shaikh though he was not a legal owner of the above S.Nos. were already mortgaged with Agricultural Development Bank of Pakistan. On the basis of such bogus sale certificate, S.Nos.290 and 291 were sold to Yar Muhammad, S.No.292 was sold to Gulsher, SNQs.289 and 573 were sold to Muhammad Bux and S.Nos.601, 295 and 793 were sold to Murad Khan and such entries were recorded in the Dhakhal Kharij Register by the appellant respectively. The case of the prosecution further is that when the appellant came to know about the matter being reported to A.C.E., he got the same cancelled from the concerned Mukhtiarkar. After the registration of the above crime, Ghulam Sarwar Salangi Investigating Officer secured Dakhal Kharij Register No.7902 of Deh Puran Lalyoon, which was produced by P.W. Noor Muhammad Soomro in presence of Mashirs. On 7-7-1986 Investigating Officer recorded the statement of Yar Muhammad, Gulasher, Muhammad Bux and Murad Khan (aggrieved persons). On 30-4-1988, he examined Imtiaz Ahmed and on 2-5-1988 examined Ghulam Sarwar and Tapedar Muhammad Ali as they were conversant with the signatures of the appellant. After the conclusion of the investigation and obtaining the sanction for the prosecution, the abovesaid cases against the applicant were challaned in the trial Court. The trial Court framed the charge against the appellant to which he pleaded not guilty. At the trial, the prosecution examined as many as 7 witnesses in each case, who are common excepting the aggrieved persons. They are P.Ws. Noor Muhammad (Tapedar) P.W. Ghulam Sarwar Manghar, P.W. Manzoor Ahmad, Sub-Registrar, P.W. Muhammad Ali, Tapedar, P.W. Noor Muhammad Solangi, Circle Officer and P.W. Ghulam Sarwar 'rcle Officer. The appellant in his statement recorded under section 342, Cr.P.C. before the learned trial Court denied the allegations of prosecution case and stated that entries in the Revenue Record were made on the basis of registered sale-deed at the directions of the then Supervising Tapedar, Mubarak Ali Shaikh, which were subsequently cancelled by the supervising Tapedar and Mukhtiarkar on the same day viz. 14-11-1982. The appellant had produced affidavit of Abdul Razak sworn before the Assistant Mukthiarkar and T.C.M., Shikarpur in that support, wherein Abdul Razak stated that the land was sold by Muhammad Sachal, Attorney, in consideration of Rs.15,

000. The learned trial Court after assessing the evidence found the appellant guilty and convicted and sentenced him as above. I have heard Mr. Muhammad Nawaz Shaikh learned counsel for the appellant and Mr. Yar Muhammad Abbasi learned State Counsel. The application moved by the applicants Gulsher, Yar Muhammad, Muhammad Bux and Murad Khan before S.P., A.C.E., Shikarpur, the very basis of these cases reveals that the entries in the mutation register were cancelled which is quite contrary to the facts of the F.I.Rs. wherein all the above persons have stated that they reported the matter to Anti-Corruption Establishment and it was thereafter that the entries in the Dakhal Kharij Register were cancelled by Mukhtiarkar. P.Ws. Gulsher, Yar Muhammad, Muhammad Bux and Murad Khan have deposed in the trial Court that they came to know that bogus sale certificates have been issued by appellant when they applied for obtaining loan from Bank. 'They have also deposed that then were cultivating the land of the disputed S.Nos. which were in their possession since the death of their forefathers. It was in 1992 when the appellant approached them and induced them to purchase the land, which belongs to one Punjabi and by that the right of their ownership will be safeguarded. They have further deposed that the appellant introduced them to one Abdul Razak Punjabi said to be the owner of the land and bargain of purchase and sale was settled in between them.. From this piece of evidence it is strange enough to believe that the persons being in possession of the land in question since forefathers do not know about the owner of the land, does not appeal to the mind of a prudent man. The learned trial Court has mainly based its conviction in all the four appeals on the ground that appellant had issued bogus sale certificate, and on the basis of which, the sale-deeds were registered by the Sub-Registrar Manzoor Ahmed. Admittedly the specimen signatures were obtained from the appellant at the two times in the presence of Magistrate, which were sent to the handwriting expert and the report of handwriting expert shows that the specimen signatures did not tally with the signatures made over the bogus sale certificate issued by the appellant. This aspect of the has not been considered by the trial Court, but the appellant has been simply convicted on the statements of P.Ws. Noor Muhammad and Ghulam Sarwar, Tapedars that they are well-conversant with the signatures and handwriting of the appellant. On the other hand P.W. Muhammad Ali, Tapedar has deposed that he is not conversant with the handwriting and signatures of the appellant, as such with regard to this evidence of the different Tapedars, it is the word against word. Even Magistrate before whom the specimen signatures of the appellants were obtained has not been examined by the trial Court. The most important factor which renders the case of the appellant entirely to be a doubtful nature is that no question of obtaining specimen signatures by Magistrate has been put to him under section 342, Cr.P.C. by this way an important piece of evidence has not been put to the appellant which renders the entire case to be of doubtful nature. Without proof that signatures tallied with specimen signatures taken in the presence of the Magistrate, any opinion in respect of the signature held could not be legally used against the appellant. I 1986 PCr.LJ 847(b) is on the similar circumstances and the acquittal was mainly based on the opinion of handwriting expert's report being in negative and also for non-examination of the Magistrate in whose presence the specimen signatures were obtained, and that the appellant was not put question about taking his signatures in presence of Magistrate under section 342, Cr.P.C. statement. In this case the alleged bogus sale certificate is produced in evidence by the applicants which should have been produced by the Investigating Officer. It is also pertinent to note as evident from the statement of P.W. Noor Muhammad (Investigating Officer) that Abdul Razak in whose name the bogus sale certificate was issued, was not challaned as an accused in this case. The Investigating Officer in hi, deposition has stated that because of lack of sufficient evidence against the appellant, he had simply recommended for a departmental enquiry. The learned trial Court has acquitted the appellant from the charges under sections 420, 465, 467 and 471, P.P.C. but has convicted under section 468, P.P.C. read with section 5(2) of Act II of 1947. The appellant cannot be convicted under section 468, P.P.C. if he is not found I guilty of committing offence under sections 41,5, 467 and 471, so the conviction of the trial Court is not sustainable on this account. The trial Court has grossly erred by not recording the evidence independently in each case, but has brought on record the evidence recorded in first case to the file of other three cases, which definitely is not the requirement of law. There is no hesitation in saying that a stereotype judgments, based on stereotype evidence have been delivered by the learned trial Court which E illegality vitiates whole of the proceedings against the appellant. This type of practice is not only against the very spirit of law, but natural justice also, so in my view the conviction and sentence passed by the learned trial Court is not proper and the same stands set aside. The appellant is therefore, given benefit of doubt. Accordingly the appeals filed by the appellants arc allowed. The appellant is on bail, his bail bond stands discharged. N.H.Q./S-1176/K??????????????????????????????????????????????????????????????????????????????? Appeals allowed.