2003 PLP 341 (SCMR)

Suleman Habib Ullah, Additional Advocate‑General and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner. Nemo for Respondent (in Criminal Petitions Nos.47‑K to 49‑K of 2001). Ali Akbar, Advocate‑on‑Record for Respondent (in Cr.Ps. 76‑K to 78‑K of 2001). Date of hearing: 27th March, 2002. HAMID ALI MIRZA, J. ‑‑‑These six criminal petitions for leave to appeal are directed against a common judgment dated 15th May, 2001 in Criminal Appeals Nos.44 to 46 and 41 to 43 respectively (Rub Dino and Fayyazuddin Sheikh v. The State) passed by learned Judge in Chambers of the High Court of Sindh, Karachi, whereby conviction under sections 420/468/34, P.P.C. read with section 5(2) of Prevention of Corruption Act, 1947 and sentence passed by Special Judge Anti‑Corruption (Provincial), Karachi were reversed, hence these petitions.

2. Brief facts of the case are that respondent Rub Dino and co‑accused Fayyazuddin were charged that they during the month of April, 1989, when the respondent Rub Dino while serving as Assistant at Research Section, Finance Department as public servant abused his official position in collusion with co‑accused Fayyazuddin, Headmaster who fraudulently and dishonestly prepared forged sanction orders of house purchase loan from reserved funds allocated by Finance Department, Karachi in favour of Bashir Ahmad Farooqui, Headmaster for Rs.69,600, Mehboob Khan PST for Rs.41,508 and Irfanullah Siddiqui, Junior Clerk for Rs.34,236 without approval of competent authority and further coerced Muhammad Moin to make signature of Rao Abdul Rashid, Section Officer, Finance Department on the Sanction Order of the loan and issued Sanction Orders with intention to cause it to believe that the Sanction Orders have been signed by Rao Abdul Rashid, Section Officer arid were genuine and got payment of Rs.1,45,344 made to the above persons after accepting illegal gratification of 10% of the total amount from the above employees through co‑accused Fayyazuddin and thereby the respondents Rub Dino and co‑accused Fayyazuddin committed offences punishable under sections 420/468/34, P.P.C. read with section 5(2) of Prevention of Corruption Act. The said charge, was read over to the respondents who pleaded pot guilty, consequently the petitioner/ prosecution examined P.Ws. (i) Khursheed Ali Khan, (ii) Mehboob Khan, (iii) Irfanullah Siddiqui, (iv) Mola Dad Khan, (v) Mustafa Khan, and (vi) Abdul Rasheed Khan. The respondents/accused were examined under section 342, Cr.P.C. who denied the commission of charged offences and stated that they have been falsely implicated in the case and did not examine any witness in their defence. The trial Court after recording the above evidence and hearing learned counsel for the parties convicted both the respondents under sections 420/468/34, P.P.C. read with section 5(2) of the Prevention of Corruption Act and sentenced them to suffer R.I. for eight months and to pay fine of Rs.2,000 each and in default of payment of fine to suffer S.‑I. for one month each. The respondents preferred appeals before the High Court which were allowed as per impugned judgment.

3. We have heard learned Additional Advocate‑General, Sindh for the petitioner and perused the record.

4. The only contention of the learned Additional Advocate‑General is that learned Judge in Chambers has misread the evidence, consequently has arrived at wrong conclusion which has resulted in miscarriage of justice, hence the impugned judgment is liable to be reversed.

5. We do not find merit and substance in the said contention.

6. The learned counsel for the petitioner has failed to point out any misreading or non‑reading‑of evidence by the learned High Court. The learned Judge in Chambers has minutely gone through the evidence on record. P.W.1 Khursheed Ali Khan is a formal witness who has presented the charge‑sheet against the respondent accused, P.W.2 Mehboob Khan is a Primary School Teacher who applied for the loan but he has neither deposed anything against the respondents not has assigned any part to the respondent/accused for getting him sanctioned house loan advance. On the contrary he has said that he did not know the respondent accused persons present in Court. P.W.3 Irfanullah is a Junior Clerk in the school who has deposed that he gave application for the house purchase loan through his friend Muhammad Aslam and obtained order of sanction through him and paid him sum of Rs.800 as expenditure. He has also not deposed any thing against the respondents/accused in respect of commission of alleged offences by them. P.W.4 Mola Dad is a retired handwriting expert who had received photocopy of sanctioned order bearing disputed signatures. He has only stated that disputed documents were not in agreement with the specimen and in routine signatures of Rao Abdur Rasheed. P.W.5 Mustafa Khan is an Anti‑Corruption Inspector who has recorded F.I.R. against the respondents accused. P.W. 6 Shakeel ‑Ahmad is a Process‑Server. The respondents accused denied the charged offences in their statement under section 342, Cr.P.C.

7. The prosecution has brought only above narrated evidence on record which on the facts of it did not implicate the respondents/accused with the commission of crime. Further it is settled law that it is the duty of prosecution to produce best possible evidence to prove the forgery alleged to have been committed by the respondents/accused. It may be pointed out that forgery is a question of fact which is to be proved by evidence which in the instant case prosecution has utterly failed. In the instant case neither original Sanction Orders alleged to have been forged have been produced nor evidence with regard to the fact that the respondents/accused were the persons who made the said forged signatures on the said Sanction Orders. Mere fact that signatures on the photocopy of Sanction Orders were not in agreement with that of admitted signatures of Section Officer Rao Abdur Rasheed would not prove the fact that the alleged signatures on the Sanction Orders were made by the respondents/accused so as to hold the respondents for commission of an offences of forgery. Such sanction orders must be proved to have been signed or made by the accused/respondents. There is no evidence on record connecting the respondents/accused with the commission of forgery or forgery made for the purpose of cheating so as to prove that the forged documents were prepared by the respondents/accused. It may further be pointed out that the learned Single Judge in the concluding para. has mentioned that the learned State Counsel frankly conceded that the prosecution could not prove the case against the respondents/accused beyond reasonable doubt. Before us also the learned Additional Advocate‑General conceded that there was no evidence connecting the respondents/accused with the commission of offences.

8. In view of above discussion we do not find any infirmity or illegality in the impugned judgment, therefore no interference is called for. In the result leave to appeal is declined and the petitions are dismissed. N.H.Q./S‑207/S Leave refused.