2018 P Cr (PLP)

MOHAMMAD IBRAHIM KHAN, J.

Here is the impugned judgment of acquittal dated 22.12.2016 rendered by the learned Additional Sessions Judge/Izafi Zila Qazi Samarbagh Dir Lower, whereby the accused/Respondent Ihsanullah was acquitted under sections 419, 468, 471, P.P.C. and 14, Foreigners Act in case FIR No.168 dated 01.06 2016 being charged under the above-referred sections of law at Police Station Mayar District Dir Lower.

2. The prosecution version as deciphered from the contents of 'Murasila' followed by lodging of First Information Report is that during mobile Ghast, the local police halted the passengers pickup coming from Maskanai side. Out of which a young lad was de-boarded on account of suspicion, who disclosed his name as Ihsanullah son of Gul Akbar resident of Afghanistan. During his personal search, out of his front pocket the police recovered Pakistani National Identity Card bearing No.15303 9422983-5 on the name of Aminullah son of Abdul Jabbar Khan, upon which picture of the said Ihsanullah was hitched on. Thus, the ibid FIR was lodged against him at Police Station concerned.

3. Upon completion of investigation, complete challan against the accused/Respondent was submitted before the learned Trial Court. Charge was framed against the accused/Respondent on 10.9.2016, who pleaded not guilty and claimed trial. In order to bring home charges, the prosecution examined Abdul Ghaffar Khan as PW-1, Muhammad Naveedullah Constable as PW-2, Muhammad Afzal Khan SI as PW-3, the complainant Muambar Khan SHO as PW-4, Muhammad Zahid ASI as PW-5 and statement of one Ihsanullah son of Buzarg Ahmad Superintendent NADRA office Samarbagh was recorded as CW-1.

4. Upon conclusion of evidence of prosecution, statement of the accused/Respondent was recorded under section 342 of the Code of Criminal Procedure, wherein he denied the charges posed innocence and stated to have falsely been implicated in the case.

5. After hearing learned counsel for the accused/Respondent and learned State counsel, the learned Judicial Magistrate/Illaqa Qazi Samarbagh was impressed with the evidence put-forward by the prosecution and vide his judgment dated 24.11.2016 convicted and sentenced the accused/Respondent in the following manner:-

6. Next off feeling aggrieved, the accused/Respondent taken up the matter before the Court of learned Additional Sessions Judge/Izafi Zila Qazi Samarbagh Dir Lower through Criminal Appeal No. 17/10 of 2016, wherein on acceptance of appeal vide impugned judgment of acquittal dated 22.12.2016 accused/Respondent was acquitted of the charges. The concluding Para of the said judgment is reproduced as under for ready reference:-

7. The State is dissatisfied with the findings contained in the judgment of acquittal dated 22.12.2016 passed by the learned appellate Court. Thenceforward this appeal within the meaning of section 417(1) of the Code of Criminal Procedure against acquittal of the accused/Respondent with the following prayer:- "Keeping in view the above cogent reasons, it is humbly prayed that the order dated 22.12.2016 of the learned Court of Additional Sessions Judge/Izafi Zila Qazi Samarbagh may kindly be restored and the accused/Respondent may be committed to Judicial lock up and his expel to Afghanistan from Pakistan in order to meet the ends of justice."

8. Arguments of learned Assistant Advocate General appearing on behalf of the State and learned counsel for acquitted accused/Respondent were heard with vehemence and available record gone through with their valuable assistance.

9. As per asservations levelled by the prosecution through 'Murasila' followed by lodging of the First Information Report, the local police have recovered forged Pakistani National Identity Card from personal possession of the accused/Respondent Ihsanullah being an Afghan National residing in Pakistan and more so at the relevant time he could not produce any identity card of the status of an Afghan Refugee living in Pakistan, therefore, the ibid FIR was lodged against him at Police Station Mayar District Dir Lower under sections of law as referred to above. A bare look of the charge framed against the accused/Respondent would divulge that the learned Trial Court in a very slipshod manner charge-sheeted the accused/Respondent without defining the offence being committed under each and every section of law. Out of the levied sections against the accused/Respondent, section 419 along with section 416, P.P.C. reads: Cheating by personation. A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. The punishment of this offence has been defined under section 419, P.P.C. Keeping in sight the theme as envisaged in above quoted section of law, the evidence of prosecution is silent to the effect that the accused/Respondent has ever used this forged Identity Card for the purpose of personation pretending to be someone else, rather he disclosed his real identify to be an Afghan National living in Pakistan and during his personal search the Pakistani National identity Card was recovered from his front pocket. Thus, the element of "cheating by personation" is missing in this case. Likewise, section 468 of the Pakistan Penal Code opines:- Emery for purpose of cheating "Whoever commits forgery, intending that the documents forged shall be used for the purpose of cheating." In the same analogy "forgery" has been defined under section 463, P.P.C. in the following manner:- "Forgery. 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." Again the evidence of prosecution is dormant about this element that whether this Identity Card was ever used to cause damage or injury to the general public or due to this act of the accused/Respondent any harm has been caused to anyone. Thus, the basic theme of referred section i.e. "Forgery for the purpose of cheating" is not coming to surface from the evidence so adduced by the prosecution. Similarly, applicability of section 471, P.P.C. to the extent of accused/Respondent is also under cloud as he never used this Identity Card as genuine document. In this regard, reliance has been placed on PLD 2004 (Lahore) 767 "Ishtiaq Ahmad Raja v. Ghazanfar Ali, S.I./FIA, Islamabad and another, wherein the relevant citation speaks of:

Ss. 468/471

Forgery

Possession of forged documents not an offence

Mere possession of forged documents by itself is not an offence unless the same are used for the purpose of cheating or fraudulently used as genuine.

10. Apart from above, the alleged Pakistani National Identity Card on the basis of which the accused/Respondent has been convicted by the learned Trial Court and subsequently acquitted by the learned Appellate Court has not been exhibited during the trial proceedings coupled with the fact that it was expired. So, there is no evidentiary value of this piece of evidence in respect of guilt of the accused/Respondent, which has rightly been disbelieved by the learned Additional Sessions Judge concerned.

11. The prosecution also levied section 14 Foreigners Act against accused/Respondent because he could not produce any valid document at the time of his arrest. But the prosecution badly failed to bring on record any documentary evidence to the effect that the accused/Respondent is living as an Afghan Refugee illegally in Pakistan, rather during the course of arguments learned counsel for the accused/Respondent produced a card wherein accused/Respondent Ihsanullah has been shown as an Afghan Citizen, placed on record.

12. Even otherwise, it is the duty of the prosecution to prove its case beyond any shadow of doubt and now it has been settled by the Hon'ble apex Court that a single circumstance creating reasonable doubt is sufficient for acquittal of the accused and if any single and slightest doubt is created, its benefit must go to the accused, so, the trial court has rightly extended the benefit of doubt to the accused on valid and cogent reasons based on proper appreciation of evidence and the acquittal of respondent does not call for any interference by this Court. Moreover, criterion of appraisal of evidence in an appeal against acquittal is quite different than an appeal against conviction, because in case of acquittal double presumption of innocence lies in favour of the accused. Even if another view is possible, the view favourable to the accused is to be preferred. Reliance in this regard can be placed on the case of Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others, 1994 SCMR 1928. Learned Assistant Advocate-General failed to point-out any misreading or non-reading of the evidence on record and on the contrary the evidence was appreciated and assessed on the settled principles of law by the learned appellate Court.

13. For what has been discussed above, this criminal appeal being shorn of merits stands dismissed. JK/95/P Appeal dismissed.