1976 P Cr (PLP)

On 18th April 1964 Haleem filed a direct complaint in the Court of Civil Judge and F. C. M. Tando Allahyar. In this complaint be claimed that his wife was the only child of deceased Subhan Khan and, therefore, she was entitled to succeed to the property of the deceased. This property included the house situated in Tando Allahyar. The complainant further alleged that during the last days of Subhan Khan he heard from accused respondents that Subhan Khan had mortgaged his house for Rs. 6000 to accused No.

1. On inquiry his father‑in‑law denied this transaction. This statement was reportedly made in the presence of witnesses. Soon after the death of Subhan Khan accused respondent Mobin and others occupied the house and threw complainant Haleem out of it. He complained to the Assistant Commissioner. Hala when he came on tour to Tando Allahyar before whom Mobin allegedly offered to swear on Holy Qur'an that the house had been mortgaged to him but later on resiled. This happened in the presence of Assistant Commissioner and P. W. Ahmad Khan, Vice‑Chairman of the Local Municipal Committee. After that he had occasion to examine the alleged mortgage deed and the complainant stated that he came to the conclusion that it was a forged document which bore the forged signatures of deceased Subhan Khan. He further says that he came to the conclusion that the accused/respondent Pirbux had falsely attested the mortgage‑deed and accused/ respondent Saiful Haque had falsely identified the executants of the mortgage‑deed to be Subhan Khan. This allegation about the forgeries etc. were contained in the additional complaint filed on 1‑1‑1965. The F. C. M. and Civil Judge, Tando Allabyer hold preliminary inquiry into the matter and dismissed the complaint. The revision application before the Sessions Judge met the same fate. On second revision, however, the Committing Magistrate was directed to commit the case to the Sessions Court for trial. The Additional Sessions Judge, Hyderabad tried the accused persons under sections 465, 467, 474 and 109, P. P. C. and by his judgment dated 8‑10‑1973 found the accused persons not guilty and acquitted them of the charge. In order to substantiate the allegations the prosecution had to show that the signatures of Subhan Khan on Exh. 6. mortgage‑deed, were forged and that they were forged by accused/respondent Mobin, who was in turn helped in committing this forgery by a conspiracy hatched by him and the other accused/respondents. The prosecution has brought evidence on record to show that‑ (a) Subhan Khan denied the execution of the Deed; and (6) expert evidence to indicate that the alleged signatures of Subhan Khan are forged one. Taking up the second point first the evidence on this point is that of hand writing experts Mukhtar Ahmad and Khalil. P. W. Mukhtar Ahmad has stated, for the reasons given by him in his statement as well as his report, that the signatures of specimen of Exh. 6 are not by the same person who signed Exhs. 7 and

8. These two exhibits are service books of deceased Subhan Khan when he served the police department both before and after Independence. His signatures on these documents are admittedly genuine. The main grounds put for yard by this witness for his such opinion are the differences in the disputed and the admitted signatures in respect of pen position, angles, spacing, abbreviations formations and alignments. But in cross‑examination he has admitted that in old age tremor starts in the hands of a person and because of such tremor alignment and angles are mainly effected. He further stated that sometimes pen slant also indicates change due to tremor. Signatures on Exhs. 7 and 8 are admittedly those of Subhan Khan. Signatures on Exh. 7 were affixed sometime in 1948 when he was recruited in Karachi police after Independence. while those on Exh. 8 seem to have been affixed sometime in 1930 when he was recruited in the police depart ment of Sholapur District, Alwar State (India) Mr. Mukhtiar Ahmad says that the formations in signatures on Exh. 7 are different from the signatures in Exh.

8. This indicates clearly that with passage of time substantial changes do occur in the signatures and hand writing of the same person. Another important factor about the conduct of this witness is that he has admitted that he did not take any measurements of the angles of slant in the group sets of writing of Subban Khan, nor has he been able to determine the alignment by drawing lines on the base of the signatures. Thus the evidence of this witness indicates that no explicit reliance can be placed on his evidence. It creates doubts which have always to be resolved in favour of the accused. The other Handwriting Expert was Khalil. He could not be examined in the trial Court as he had died before the trial started in the Court of Additional Sessions Judge, Hyderabad. His statement before the committ ing Magistrate was, however, brought on record. This witness has also stated that the signatures on Exh.6 are by a person different from the one who had made the signatures on Exhs. 7 and

8. This witness has also admitted that after a loss of about 32 years pen position, movement and alignment in writing of the person mostly undergoes variations. These were the main objections he had taken, while giving his opinion about the variations in letters used by the signatory of the three signatures. In addition there are certain factors which make his opinion of little value to the prosecution. He has admitted that he had not prepared any magnified photographs of the disputed as well as admitted signatures of Subban Khan. Coupled with this is the fact that expert was very old when he examined the disputed document and his eye‑sight was very weak. He was using plus 6 classes and bad recently undergone operation at the Spencer Eye Hospital. These factors of physical disability clearly indicate that the expert was greatly handicapped in the examination of the disputed documents specially when he did not care to prepare the magnified photographs of the disputed signatures. Over and above that the observations made by the Committing Magistrate about this witness are very important and cannot be ignored while weighing his evidence. The learned Committing Magistrate had the following to record about him. "I find this witness is quite old and in poor health. He is unable to walk without support. He has been led inside this Court by hand by another person. He is shaking frequently. He appears hardly an expert. After bearing a question he goes mum. Then he speaks a few words and fumbles, and after a pause he again tatter a few words. His memory appears quite week I think due to his illness. I have not been impressed by "his demeanour at all. Due to his illness and old age I allowed him to sit on a chair in the witness‑box during his examination." The expert evidence has failed to show that the signatures on Exh. 6, alleged mortgage deed, are forged one. Even if it were proved that they were forged signatures in order to carry home the charge under sections 465, 467 it was incumbent upon the prosecution to positively prove that such forgery was committed by accused Mobin in conspiracy with the other accused persons. But here even the prosecution witnesses have not supported the A prosecution story. P. W. Mukhter Ahmad has categorically stated that he compared the disputed signatures with the admitted signatures of accused Mobin and in his opinion the disputed signatures did not appear to have been made by Mobin. This is the evidence of the prosecution and with this statement the whole case of the prosecution, so far as the present respondents are concerned, falls to the ground. The other evidence brought on record by the prosecution is the alleged statement of deceased Subban Khan made during the last days of his illness, that he had not mortgaged the house to Mobin. This statement was allegedly made in presence of P. W. Siraj and others. P. W. Siraj has obviously perjured himself. Prosecution story is that Halim with his wife was living with Subhan Khan just before his death. This witness had stated before the Committing Magistrate that respondent Mobin was living with his second wife in the house of Subhan Khan. But at the trial he denied the suggestion if Mobin and his wife were living with Subhan, and if he had made such a statement before the Committing Magistrate. This witness has been duly confronted with this statement which has been brought on record. This fact clearly indicates that in case Subban Khan was asked about the alleged forged mortgage deed the matter could have been straightened out because Mobin was himself present there. This was not done. Evidence of Halim about the circumstances attending on the death of Subban Khan also point towards Mobin living with Subhan Khan just before his death. Halim has admitted in his cross‑examination that on the day of death of Subhan Khan Mobin and others, were present inside the house and that be i.e. Halim, did not enter that house. He further says that Mobin and others took possession of the house within 10 minutes of the death of Subban Khan. This could not have been possible if Halim as alleged by him was living in that house all along the illness of Subhan Khan. Secondly the evidence of these witnesses does not prove, beyond doubt, that Subban Khan had denied having executed the mortgage deed. In view of the finding that the prosecution has failed to prove that, the signatures on Exh. 6 are forged by accused Mobin, the revision fails. It is, therefore, dismissed. Petition dismissed.