2000 PLP 345 (YLR)

The appellant, Amjad Naeem was convicted under section 471, P.P.C. by Mr. Miftahuddin, Sessions Judge, D.I. Khan exercising the powers of Judge, Anti Corruption, vide his judgment, dated 1‑4‑1999 and was sentenced to undergo R.I. for 2 (two) years and to pay a fine of Rs. 5,000 or in default thereof to undergo further S.I. for one month. He was also convicted under section 5(2) of the Prevention of Corruption Act and sentenced to undergo R.I. for two years as well as to pay a fine of Rs.5,000 or in default thereof to suffer further S.I. for one month. The sentences were ordered to run concurrently.

2. Brief facts leading to the conviction and sentence of the appellant, as brought forth by the prosecution, are that the accused/appellant appeared in P.T.C., Examination, held in year 1991‑92 under Roll No. 1102 but could not succeed. However, he, in connivance with Haji Muhammad Saleem, A.S.D.E.O. (Male) and Noor Muhammad, A. S. D. E. O. (Accounts), managed/manoeuvred to get recorded entries in his service book on the strength of a bogus D.M.C. and on the basis of the said entries he got himself promoted to BS‑9 from BS‑

7. Thus, in doing so he caused loss to the Government exchequer.

3. Accordingly, a case was registered against him in Police Station Anti‑Corruption Establishment, D.I. Khan, vide F.I.R. No. 14, dated 20‑12‑1992, under section 420/ 468/471/477‑A, P.P.C.

4. On the conclusion of the trial the trial Judge while acquitting accused Muhammad Saleem, Noor Muhammad and Sahibzada Muhammad Idrees, convicted and sentenced the appellant as stated above.

5. Aggrieved by the said judgment of the Sessions Judge/Judge Anti‑Corruption, D.I. Khan, Amjad Naeem has filed this appeal against his conviction and sentence.

6. Mr. Dost Muhammad, Advocate, learned counsel for the appellant and Syed Saeed Hassan Sherazi, learned Assistant Advocate‑General representing the State, present and heard. Record of the case perused.

7. It may be stated at the outset that the trial Judge while recording conviction, was mainly influenced by the documentary evidence produced by the prosecution which was exhibited as Exh. PW1/D.I. to Exh. P.W. 1/D‑

3. Exh. P.W.1/D.1 is a photo copy of the D.M.C. P.T.C. Examination, held in 1991 in the name of convict/appellant (Roll No. 1102). Exh. P.W.1/‑D‑2 is the copy of detail marks certificate in the name of the convict/appellant (Roll No. 949) of P.T.C. Examination (Session not classified as the figures 199 makes no sense). Exh. P.W.1/D‑3 is the copy of D.M.C. issued in the name of the convict/appellant (Roll No.1102) pertaining to P.T.C. Examination held in the year 1991. While in the D.M.C., Exh.P.W.I/D.1, the convict appellant has been shown to have passed the P.T.C. Examination held in 1991, in Exh.P.W.l/D‑3 he is shown to have failed in one of the papers.

8. It may be pointed out that all these documents which were exhibited, are the photo copies, the original of which were neither placed on file nor produced in the Court for the inspection of the Court. There is no doubt that the forged/vague documents may be made by resorting to modern techniques but to prove that a document is a forged one, it becomes incumbent upon the prosecution to produce the original for the inspection of the Court so that the Court may come to a positive/definite conclusion that the document was forged. In case "Maulvi Abdul Hameed v. The State" reported as PLD 1988 Karachi 503, wherein it was held:‑‑‑ "The Court cannot order prosecution for forgery on the basis of the photo copy of receipts unless original documents are produced before the Court."

9. A similar view was taken in case "Kliushal Khan v. The State" (1980 PCr.LJ 1026). It was laid down:‑‑ "Photostat copies are not admissible under section 63 of the Evidence Act. "

10. It may be remarked that documents Exh. P.W.1/D.1 to Exh. P.W.1/D.3 were received in the prosecution evidence in spite of the fact that the original of these documents were not produced for the inspection of the Court. Accordingly, I am of the considered view that the trial Judge had acted illegally in receiving these documents. The mere fact that the defence had not objected about these documents, would not make any difference because the consent of the parties cannot override the express provisions of law (Qanun‑e‑Shahadat) regarding the proof of documents.

11. Since the trial Judge has relied on the documents which were not admissible in evidence, therefore, his conviction order cannot be sustained in law.

12. In the circumstances, I am of the considered view that the prosecution has not been able to establish its case against the accused beyond reasonable doubt. I accept this appeal, set aside the conviction/sentence of the appellant and, by extending the benefit of doubt to him, acquit him.

12. The appellant is present on bail and his bail bonds shall stand discharged. N.H.Q./21/P Appeal accepted.