P L D 1960 Dacca 975 (PLP)

3. The lands covered by this kabala are in possession of Azimuddin under Ramaniranjan Pathak. Azimuddin learnt that a kabala had been brought into existence in respect of the lands and on inquiry found that the appellant Rahimuddin falsely personated himself as Ramani and executed the kabala in favour of Ekinud din on 2‑12‑55 and Jabed Ali and Badruddin were witnesses and identifier in the said kabala. He made further inquiries and learnt that Ramani had left Pakistan long ago before the introduc tion of the Passport System, and that lie had not executed the kabala. It is the prosecution case that on the strength of this kabala Ekinuddin tried to establish his claim on the lands before the Revenue Circle Officer.

4. Rahimuddin was charged under section 419 (false personation) and under section 467, P. P. C. (forgery of valuable security). Accused Ekinuddin was charged under sections 467 and 471, P. P. C. (using as genuine a forged document). Badruddin and Jabed were charged under sections 467/109 of the Pakistan Penal Code (abetment of forgery).

5. The defence contended that the accused persons did not commit any offence either in law or in fact. A legal objection was taken on behalf of Ekinuddin that there could be no case against him because there had been no complaint by the Revenue Circle Officer before whom, according to the prosecution case, he uttered the kabala.

6. As stated already, the said Ekinuddin had been acquitted and the appellants convicted and sentenced, as stated above.

7. Exh. 5 is the kabala which shows that it was executed and registered on 2‑12‑

55. There is evidence that on that day Ramani, the alleged vendor, was not in Pakistan. Exhs. 3 and 3‑A are letters written by Ramani from India and these show that Ramani left Pakistan in October, 1952, after which he did not return to Pakistan. These letters have been proved by P. W. 2 Kasiruddin who looked after the properties of Ramani. He knows Ramani's handwriting. According to P. W. 1 Azimuddin and P. W. 2 Kasiruddin also, Ramani had left Pakistan and was not present on 2‑12‑

55. Thus it has been established that the kabala (Exh. 5`, has not been executed by Ramani. It was not disputed before us or in the trial Court that the kabala was not a valuable security. The point for consideration, therefore, is whether the charges framed against the appellants have been proved or not.

8. Mr. Abdullah, who appeared on behalf of the appellant Rahimuddin, raised various objections, the first being about the maintainability of the trial on the ground that the accusations contained in the charge framed under section 471 of the Pakistan Penal Code against Ekinuddin could not be tried without a com plaint made by the Revenue Circle Officer. He contended that, in the absence of such a complaint, the whole trial has been vitiated and the conviction of not only this appellant but also that of others must be set aside. It was the prosecution case that Ekinuddin uttered the kabala before the Revenue Circle Officer and, according to Mr. Abdullah, the R. C. O. was a Revenue Court under section 195 (1) (c) of the Code of Criminal Procedure. Mr. Abdullah, however, could not satisfy us whether the R. C. O. was functioning as an administrative Officer or as a Revenue Court ; though pressed, he was not able to give us any definite answer with reference to the evidence in this case. The position, therefore, is that there is no material before us either way as to whether the R. C. O. was functioning as a Revenue Court or as an administrative officer. Be that as it may, reference may be made to Anwar Mahmood and others v. Rashid‑uz‑Zamman (P L D 1959 Lah. 186), wherein it was held inter alia that where there were several offences to be tried one of which required sanction by a competent authority and sanction for the trial of that offence had not been obtained, the Court may proceed with the trial of the other offences. Though the cited authority deals with the question of sanction, in our opinion, : the same principle would be applicable to the case of a complaint by a competent Court. In the present case, we are of opinion‑-that, even if it were necessary for the R. C. O., provided he was functioning as a Revenue Court, to make a complaint against Ekinuddin, as required by law, in the absence of that complaint the trial Court was competent to proceed with the charges other then those which did require a complaint to be made by a competent Court. In these circumstances, we find that the trial held is not illegal, as contended.

9. This brings us to the question as to whether the charge under section 467, P. P. C., has been brought home to the appellant Rahimuddin. He is said to have executed the kabala by writing the name of Ramani and also to have affixed his thumb impressions thereon at the time of registration, There is no evidence that the signature purported to be that of Ramani was in fact written by the appellant Rahimuddin. Thus the evidence is confined only to the thumb impression found on Exh. 5 at the time of registration which, according to the prosecution, is the thumb impression of Rahimuddin. In order to prove this part of the case, some thumb impressions were sent to P. W. 6 Md. Taslimuddin, a linger print expert, who was trained in the Finger Print Bureau of the C. I. D. The thumb impressions in Exh. 5 and in Exh. 6, the register kept in the Registration Office in which a thumb impression is taken at the time of registration, and specimen thumb impression of Rahimuddin were sent to him for comparison. These were marked by him separately as A (Exh. 7 of the case) B, (Exh. 7a of the case) and C 1 (Exh. 7b of the case) respectively. He made enlargements, Exhs. 8‑8b. On a comparison he found that the thumb impressions in Exhs. 5 and 6 were identical with the specimen thumb impression sent to him. He gave his reasons as follows: "All the three impressions are of whorl type and, amongst others, 18 ridge peculiarities shown by markings in the enlarged photos marked A and B do identically exist in the specimen C. 1". This witness was criticised on the ground that he was not compe tent to express any opinion as he was not a qualified person and, even if his evidence be accepted, it was not safe to rely on the opinion of a finger print expert. We find that be was trained in the Finger Print Bureau of the C. I. D. and he has given his reasons, for arriving at an opinion. He stated in cross‑examination that he examined all the ridges of the impressions sent to him but he compared only 18 ridges. The ridges beyond those 18 ridges were not compared by him. He cannot say if the ridges beyond the 18 examined by him were identical between the 2 sets, but science states that if 18 ridges of one impression were found identical with those of others, it could conclusively follow that other ridges were also identical. Sir Galton is an authority on finger prints. He was giving evidence with reference to Sir Galton and it was not put to him that Sir Galton was not an authority on finger prints. We are satisfied that the opinion given by the expert is reliable and it has been established that the thumb impressions in Exhs. 5 and 6 are identical with the specimen thumb impressions of Rabimuddin sent for comparison. It has, therefore, been proved that at the time of the registration of the document, Rahimuddin put his thumb impression thereon to show that he was Ramani the executant of the document.

9. Mr. Abdullah, however, argued with reference to the definition of forgery that even if it were found that the thumb impression was given by Rahimuddin at the time of registration, the offence is not punishable under section 467 of the Pakistan Penal Code. He contended that, in the absence of proof that the name of Ramani was written by Rahimuddin, no conviction of Rahimuddin would lie under section 467 of the Pakistan Penal Code. Forgery is defined in section 463 of the Pakistan Penal Code as follows :‑

"Whoever makes any false document or part of a document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery." Section 464 deals with the making of a false document and the first clause thereof is to the effect that a person is said to make a false document who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark;, denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed. The second and the third clauses of the section are not applicable to the facts of this case. The definition of making a false document is very wide and it is not confined only to the execution of a docu ment. It refers to dishonestly or fraudulently making, signing, sealing or executing a document or a part of a document with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he know that it was not made, signed, sealed or executed or at a time at which he know that it was not made, signed, sealed or executed. The kabala (Exh. 5) was registered only after the appellant Rahimudin put his thumb impression thereon. The registration would not have been made until and unless a thumb impression had been put‑on it. Thus he put his thumb impression on a part of a document without any reference to the execution of the document itself. The act of appellant Rahimuddin would be covered by the first clause of section 464, P. P. C., and it cannot be urged that because the signature on the document has not been proved the definition of making a false document would not apply. The trial Judge has rightly convicted him under section 467 of the Pakistan Penal Code.

10. A point was made that when the specimen thumb impres sion of the appellant was taken a Magistrate was present but he has not been examined. P. W. 7 Abdur Rajjak stated that he took the thumb impressions of accused Rahimuddin in the presence of Mr. N. Hossain, Magistrate, 1st class. A grievance was made that it has not been proved that the specimens sent to the finger‑print expert were those of appellant Rahimuddin and thus his conviction is bad. There is no rule of law that thumb impressions should be taken in the presence of any Magistrate but it‑is done as a measure of precaution. In the present case it was done but the Magistrate has not been examined, a fact deposed to by P. W. 7 Abdur Rajjak, and from his cross‑examination it does not appear that there was any challenge on this point. We accordingly find that although the Magistrate has not been examined, the specimen thumb impressions sent to the finger‑print expert were those of appellant Rahimuddin.

11. This brings us to the case of the other two appellants. Appellant Badruddin has been shown in the kabala (Exh. 5) as a witness and as an identifier of Ramani Babu. He has been convicted for abetting the offence of forgery by appellant Rahimuddin. Both these appellants were charged under sections 467/109 of the Pakistan Penal Code as follows :‑- " That you, on or about the 2‑12‑55 at S. R. Office, Dinajpur, abetted the commission of offence of forgery by accused Rahimuddin which was committed in consequence of your abetment . . . . . ". Appellant Badruddin identified Rahimuddin as Ramani and, on the strength of his identification, the kabala (Exh. 5) ,was registered by the Sub‑Registrar and but for his identification the kabala would not have been registered. Thus it has been established that the abetted the offence of forgery by Rahimuddin which was committed in consequence of his abetment. The case against him under sections 467/109 of the Pakistan Penal Code has been established.

12. So far as appellant Jabed Ali is concerned, he is only a witness to the execution of the kabala (Exh. 5). He, had nothing to do with the registration of the document. It has not been established that the signature on the kabala was forged by appellant Rahimuddin and, in these circumstances, the charge framed against him under sections 467/109 of the Pakistan Penal Code cannot lie.

13. We have considered all the facts and circumstances of the case and the arguments advanced and we are satisfied beyond any doubt that the prosecution has succeeded in proving its case against appellants Rahimuddin and Badruddin.

14. The result, therefore, is that this appeal is allowed in part. The conviction and sentences passed against Rahimuddin and Badruddin are upheld and those passed on appellant Jabed Ali are set aside. He is ordered to be set at liberty forthwith, if not required in any other connection. SATTAR, J.‑I agree with my lord the Chief Justice. K.B. A. Appeal partly accepted.