2005 PLP 1506 (YLR)

This appeal is directed against the judgment, dated 5-9-2000 passed by Rana Gulzar Ahmad, Judicial Magistrate, Cantt. Sub-Division, Lahore, whereby, having tried the respondents in the case registered vide F.I.R. No.150 of 1988, dated 2-5-1988 under sections 419/420/ 468/471/109, P.P.C., Police Station, North Cantt, Lahore, the respondents were acquitted from the case.

2. The prosecution story, as unfolded through F.I.R. (Exh. PB) registered on the application of Barkat Ali son of Mehr Ali (wrongly mentioned in the judgment as Barkat Ali son of Mehr Din), briefly stated is that the complainant was owner of 23 Marlas of land in Khasra No. 3272; that respondent Talib Hussain, being leader of a "Gang", got executed two registered sale-deeds fraudulently for the said land in favour of respondents Latif and Labha; that for the said purpose he got registered forged general power-of-attorney in favour of Muhammad Rafique (respondent) by presenting accused Barkat Ali son of Siraj Din (since dead) in his place in consequence whereof the said Muhammad Rafique executed registered sale-deed of 7 Marlas in favour of his brother Muhammad Latif (respondent) while executed registered sale-deed of 16 Marlas in favour of Labha (respondent); that he neither executed any general power-of-attorney in favour of the said Muhammad Rafique (respondent) nor executed any sale-deeds in the names of Muhammad Latif or Labha respondents; that the above transactions were the result of fraud, impersonation, forgery and cheating committed by the above-said accused persons/respondents to cause pecuniary loss by way of depriving him from the said property. Hence the above case.

3. After having completed usual formalities and investigation of the case, the police, having found the accused persons/respondents guilty of the offence, submitted challan against them before the learned Court of competent jurisdiction. Where, in order to prove its case, the prosecution, apart from documentary evidence, examined six witnesses, namely, Muhammad Khan, A.S.-I. (P.W.1), Barkat Ali son of Mehr Ali (wrongly mentioned by the learned trial Court as Barkat Ali son of Mehr Ali) as P.W.2, Muhammad Idrees, S.-I. (P.W.3), Mushtaq Ahmad Bhatti, I.O. (P.W.4), Mureed Hussain Chatha, Advocate (P.W.5) and Shabbir Hussain, Advocate (P.W.6).

4. The accused, when examined under section 342, Cr.P.C. denied the prosecution case, attributed their involvement in the present case due to false implication and claimed trial.

5. Learned counsel for the appellant, in support of this appeal, while assailing the impugned judgment of acquittal and while seeking conviction of the respondents, submitted that Barkat Ali son of Mehr Ali (complainant) had been appearing before the learned trial Court time and again; that the accused side intentionally avoided to cross-examine him and adopted delaying tactics to prolong the case which shows their criminal mind; that there are observations of the learned trial Court on record to the said effect; that ultimately the complainant died on 6-7-1997 without getting justice from the Court of law during the period of nine years; that the property in question has become of a great value and this was the reason that the respondents are still behind it and have committed the fraud and forgery with the complainant; that Muhammad Idrees, SI (P.W.3), Finger Print Expert, appeared before the learned trial Court to corroborate his report; that not a single suggestion was put to the said expert that the report was bogus one; that the documents, which were marked by the learned trial Court as Marks-A to E and which make mention in para.7 of the impugned judgment, are missing from the record of the learned trial Court; that the inference drawn by the learned trial Court from the above documents, in leading acquittal of the respondents, is misconceived and is based on surmises and conjectures; that respondent Rana Talib Hussain was master-mind and was a "gang" leader who got prepared the fictitious general power-of-attorney and produced Barkat Ali son of Mehr Din instead of Barkat Ali son of Mehr Ali (complainant); that the said Barkat Ali son of Mehr Din was identified by Salamat Ali respondent to be of Barkat Ali son of Mehr Din (complainant/owner of the property) in consequence whereof the property in question was got transferred in the names of respondents Labha son of Makhan and Muhammad Latif son of Muhammad Boota and that the report of the Finger Print Expert remained un-rebutted so the forgery, fraud, cheating and dishonest transfer of the property of the complainant was proved against all the respondents. While concluding her submissions, learned counsel contends that although it was a fit case in which respondents warranted conviction but they were acquitted from the case for reasons not sustainable in law; that the possession of the property in question is still with the complainant party which has been sealed and that if the respondents are not convicted, the complainant party is likely to effect. In support of the above submissions, learned counsel relied on PLD 1987 Lah. 316(c), 1996 PCr.LJ 586(d) and a judgment from the AJK jurisdiction reported in 2000 PCr.LJ 1680(a).

6. Learned counsel for the State submits that the present appellant is not an aggrieved person because the complainant had already died; that the complainant was not cross-examined; that as far as report of Handwriting Expert/Finger Expert Bureau is concerned it shows that on the general power-of-attorney there are thumb impressions of the complainant Barkat Ali son of Mehr Ali but it does not show that the same were forged by respondent Rana Talib Hussain; that there is no evidence on record that Bakart Ali son fo Siraj Din appeared posing himself as Barkat Ali son of Mehr Ali complainant; that Mureed Hussain Chatha, Advocate (P.W.5) appeared to state that he acted as a Local Commissioner and got executed the sale-deeds through general power of-attorney; that at the time of execution the actual owner of the property i.e. Barkat Ali son of Mehr Ali was also present but he never objected; that the complainant had filed two civil suits against Latif and Rafique and the other against Labha and Rafique which were decreed on the basis of a compromise/consent decree which cannot be considered evidence against the respondents and that in the said civil suits Rana Talib Hussain respondent never made as a party.

7. Learned counsel for the respondents, while adopting arguments of the learned counsel for the State, defending the impugned judgment of acquittal of the learned trial Magistrate and seeking dismissal of this appeal added that the statement of the complainant Barkat Ali son of Mehr Ali was recorded by the learned trial Court on 6-7-1994; that said statement was recorded by the Reader of the learned trial Court but it does not bear the signatures of the learned Presiding Officer which fact is mentioned at page 3 of the judgment; that Shabbir Hussain, Advocate (P.W.6) stated before the learned trial Court that he himself went to the house of the complainant Barkat Ali son of Mehr Ali (P.W.2) and got his thumb-impressions on the general power-of-attorney; that the respondents had also produced defence to prove their innocence; that no case against the respondents is made out; that respondent Rana Talib Hussain has also purchased a piece of land regarding which a suit for specific performance is still pending before the learned Civil Court and the next date of hearing is fixed as 27-01-2005; that in appeal against acquittal, when an accused is acquitted by the learned trial Court, a double presumption of innocence is attached unless the impugned judgment of acquittal is arbitrary, capricious or against the weight of evidence on record. He placed reliance on Ghualm Sikandar v. Mamraz Khan (PLD 1985 Supreme Court 11) to defend the impugned judgment of acquittal.

8. I have heard learned counsel for the parties, have gone through the impugned judgment and the record with their able assistance and have also given exhaustive consideration to the arguments of the respective parties.

9. The main issue involved in this case is whether the complainant Barkat Ali son of Mehr Ali (P.W.2), who is the real owner of the property in dispute, executed any general power-of-attorney in favour of Muhammad Rafique respondent and whether the sale-deeds executed, in consequence whereof, in favour of respondents Muhammad Latif and Labha were the result of forgery committed by the respondents?

10. Before dilating upon the genuineness or otherwise of the documents in dispute i.e. general power-of-attorney and sale-deeds executed in favour of the respondents Latif and Labha, it has come on record that the same were recovered from Rana Talib Hussain respondent i.e. the general power-of-attorney (P1), sale-deeds (P2) and (P3) which were taken into possession by Munawar Hussain, ASI (P.W.1) vide recovery memo. Exh.PA. The said Investigating Officer appeared to corroborate this very fact after having entered the witness-box. Therefore, there is no dispute that the above documents were in the possession of Rana Talib Hussain respondent, who, according to the prosecution was a "Gang Leader" of the "Qabza Groups" and was an expert in defrauding the people having used his expertise.

11. While coming to the question of genuineness or otherwise of the general power-of-attorney and execution of sale-deeds in favour of respondents Latif and Labha, at first, the statement of the complainant Barkat Ali son of Mehr Ali (P.W.2) went un-rebutted as he was not cross-examined by the accused/respondents because after appearing on various dates of hearing, his statement in the form of examination-in-chief was recorded on 6-7-1994 although the case was registered on 2-5-1988, after recording his statement the case was adjourned for many a times and the complainant used to appear before the learned trial Court as and when directed for the purpose of cross-examination but he was not cross-examined, even the learned trial Magistrate vide order, dated 11-8-1997 observed that the accused persons were given ample opportunities to cross-examine the complainant but they were adopting the delaying tactics so that he may not be cross-examined and the case was adjourned to 21-8-1997 after giving last opportunity to the defence to cross-examine the said P.W/complainant. On 21-8-2004, the complainant was present but again he was not cross-examined and summoned the further evidence. Ultimately, having waited the conclusion of the trial of his case for a long period of nine years, which was registered in 1988, he died on 9-7-1999. The statement of the complainant was corroborated by Muhammad Idrees, S.-I. (P.W.3), who being Finger Print Expert, got comparison of the thumb impressions of the complainant on the general power-of-attorney vide his report (Exh.PC) and found the thumb impressions on the general power-of-attorney different from those of the complainant. The Finger Print Expert, Muhammad Idrees, S.-I. entered the witness-box and corroborated the report already on the record and the defence could not shake the authenticity of the said report or the witness. It is settled law that when an Expert entered the witness-box, to corroborate the report submitted or prepared by him then the Court was left with no option but to accept the same. Therefore, so far as general power-of-attorney is concerned, it was not genuinely executed and signed by Barkat Ali son of Mehr Ali (P.W.2) and proved to be a forged one. As far as contention of the learned counsel regarding reports of the Ahl-e-Commissions regarding attestation of general power-of-attorney and sale-deeds is concerned, it has no force in front of the report of the Expert. It appears they were part and parcel of the fraud but were not arrayed as accused. Record shows that most of the witnesses state in Court regarding presence of Barkat Ali son of Mehr Din and not Barkat Ali son of Mehr Ali. A minute perusal of the record shows that where the presence of the complainant has been shown, Barkat Ali son of Mehr Din, he was present in place of Barkat Ali son of Mehr Ali, who is actual owner of the land. Therefore, the defence evidence was misread by the learned trial Court and the passage of the impugned judgment appears to be the result of non-reading and misreading of the material evidence on record. The contention of the learned State counsel that the appellant was not an aggrieved person to agitate acquittal is misconceived because, being legal heir of the complainant, he is competent to file the appeal. The respondents were found guilty during the investigation and were sent up for trial which factor also goes against the respondents/accused. Although ipsi dixit of the police is not binding on the Courts yet the Court can seek corroboration of the other factors from the same and it is being done in this case. As it appears from the narration of facts in the impugned judgment even the learned trial Court wrote the judgment in a haphazard manner which is manfiest from the record that he has been writing wrong parentage of the complainant i.e. Barkat Ali son of Mehr Din while the actual name with correct parentage of the complainant is Barkat Ali son of Mehr Ali and which was the crucial point in this case to be resolved by the learned trial Court. It was incumbent upon the learned trial Judge to remain within the relevant and crucial points of the case but he went into unnecessary details. This is in line with the ratio laid down by the august Supreme Court of Pakistan in Allah Dad and others v. Muhammad Nawaz and others (2001 SCMR 1111), wherein at p.1123, in para.31 of the said judgment, the apex Court observed as under:-- "Thus, it is evident that High Court considered all the facts of the case, which were brought before it, it is not necessary for the Court to mention the evidence in detail or to narrate the points, which it found irrelevant for the purpose of a specific finding. The decision shall contain a concise statement of facts, the points which require considerations, the decision thereon and the reasons for such decision. What is material is that real points in controversy, which can be the basis for a decision, be highlighted and discussed."

12. In view of the above discussion, it is understandable that when the general power-of-attorney has been proved to be forged one then the transactions in consequence whereof would fall on the ground. The respondents have failed to prove that how the documents in question had become in the possession of Rana Talib Hussain, how the signatures/thumb-impression of the respondent Muhammad Rafique came on the general power-of-attorney those of respondent Muhammad Latif and Labha on the sale-deeds executed in their favour and who are beneficiaries of those documents. On the other hand and the defence evidence produced during the trial either has no relevance with the point mooted in this case or was a manoeuvred one. For example D.W.2 Mukhtar Ahmad talked of some agreement between the parties much prior to the case in question and same is the position of D.W.2 Javed-ur-Rashid, Advocate, D.W.3 Sher Ali appeared to state about some oral agreements and could not produce anything to support his statement. D.W.4 is Nazim Hussain who also talks about something uttered from the mouth of D.W.3 which has no relevancy with the facts and circumstances of this case. While documents produced before the learned trial Court by the defence regarding consenting decrees passed in favour of the complainant in the civil suits filed against the respondents Latif and Labha go against the accused persons, as learned counsel for the appellant, through Crl. Misc. No. 2119-M/2002, has brought on record attested copies of various documents relatable to his case regarding whom learned counsel for the respondents has not raised any objection and the same are being read as an integral part of the file i.e. and attested copy of the civil suit filed by the complainant against respondents Muhammad Latif and Muhammad Rafqiue, wherein, both the respondents appeared before the learned Civil Court on 6-6-2004 and made a statement that since they had no concern with the property in dispute, therefore, they had no objection to the issuance of a decree in complainant's favour. Accordingly, vide order, dated 20-6-1990 (Annexure-B), a decree was issued in complainant's favour. Similarly, in the civil suit filed by the complainant against Muhammad Rafique and Labha respondents (Annexure-C), respondent Rafique made a statement on 23-7-1990 (Annexure-E), after having accepted contents of the said civil suit, to the effect that the sale-deed was a fraud one committed by respondent Talib son of Ghulam Ali which was also decreed in favour of the complainant (Annexure-F).

13. After having adjudged the case from every angle, having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that impugned judgment of acquittal, dated 5-9-2000 passed by Rana Gulzar Ahmad, Judicial Magistrate, Cantt. Sub-Division, Lahore, whereby, after having tried the respondents in the case registered vide F.I.R. No.150 of 1988, dated 2-5-1988 under sections 419/420/468/471/109, P.P.C., Police Station North Cantt, Lahore, he acquitted the respondents from the above case is not sustainable in law. Normally the superior Courts refrain from interfering into the judgments of acquittals but where there is a non-reading or misreading of evidence it is the duty of the Court to do complete justice. This is a case which is fit one warranting interfering by this Court as the reasons given by the learned trial Magistrate are as speculative and artificial in nature, findings recorded by him are based on no evidence, there are speculative and artificial nature of findings recorded by him which are based on no evidence and the conclusions drawn by it regarding innocence of the respondents are perverse coupled with non-reading and misreading of evidence. The Court has to weigh with the quality and not the quantity of the evidence and there is sufficient material on record which warrants conviction of the respondents. Reliance is placed on Allah Bakhsh v. Shammi (PLD 1980 Supreme Court 225). Resultantly, this appeal is allowed and the impugned judgment of acquittal is set aside. The respondents (except Barkat Ali son of Siraj Din as this appeal has abated to his extent due to his death), namely, Rana Talib Hussain son of Ghulam Ali, Muhammad Rafique son of Muhammad Botta, Salamat Ali son of Shahab Din, Labha son of Makhan and Muhammad Latif son of Muhammad Boota are accused of the offences of cheating by impersonation, cheating and dishonestly inducing delivery of property, forgery for the purpose of the said cheating and of using forged documents as genuine one which are punishable under sections 419/ 420/468/471/109, P.P.C. as they have committed the offence in furtherance of their common object to derive pecuniary benefits and to achieve the goals aimed by them. It is unfortunate that cheating, forgery and delivery of valuable properties deceitfully has become common practice and the innocent real owners of the valuable properties are being defrauded. It is voice of the day that "might is right". Therefore, until and unless such-like offences are discouraged and curbed and the accused persons involved in such-like cases are not dealt with iron hands, the ratio of the commission of such-like offence shall not come down in consequence whereof injustice would prevail in the society and the offences of depriving of real owners of their valuable properties shall continue and there would be no end to it. On the one hand, the accused involved in the cases alike are not apprehended due to their expertise in the profession and, on the other hand, if they are apprehended, they always tried to create technical flaws to exonerate them from the cases and to earn acquittal from the Courts of law. The nutshell of the above discussion is that all the above respondents are convicted and sentenced in the following terms:-- (i) Under section 419, P.P.C.-to five years' R.I. each and a fine of Rs.20,000 each in default whereof to undergo three months' SI each; (ii) Under section 420, P.P.C.-to five years' R.I. each and a fine of Rs.20,000 each in default whereof to undergo three months' S.I. each; (iii) Under section 468, P.P.C.-to five years' R.I. each and a fine of Rs.20,000 each in default whereof to undergo three months' S.I. each. (iv) Under section 471, P.P.C.-to five years' RI each and a fine of Rs.10,000 each in default whereof to undergo two months' S.I. each; (v) All the sentences are directed to run concurrently and the benefit of section 382-B, Cr.P.C. shall be extended to the convicts. As, now the respondents, are convicts, therefore, they are directed to be taken into custody by the concerned authorities to serve out the above sentences awarded to them variously. H.B.T./M-956/L Appeal accepted.