P L D 1982 Peshawar 130 (PLP)

3. The solitary allegation against the petitioner made in the complaint, as remarked above, was that he habitually indulged in unnatural carnal PAGE 162 & 163 intercourse with the students. It is contemplated by section 5, subsection (2) of the Ordinance that the complaint shall briefly set out inter alia (a) the practices with which the person complained against is charged; (b) instances with details of time and place of such practices and (c) a statement of any relevant general repute in which such person is held and any other ground on which the information is based. It is evident that these provisions are mandatory in nature but a look at the complaint btought against the petitioner shows that these provisions have not been complied with and no instances with details of time and place of the practices with which the petitioner complained against is charged have been given at all. Notwith-I standing this omission' the prosecution rested its case on the testimony of Muhammad Subhan and the diaries alleged to have been maintained by the petitioner..

4. Muhammad Subhan is the star witness for the prosecufion and it is he who claimed to have laid his hands on the diaries of the petitioner. He deposed that he had good relations with the petitioner whose residential quarter was visited, besides him, by the teachers Misal Khan, Gul Samar Shah, Abdullah Gul, Taj Muhammad and Bakhtzada. The petitioner was not enjoying a good reputation and during the school hours he would bring school students to his residential quarter to commit sodomy on them. Once he visited the quarter and found a lady teacher with the petitioner whereafter his relations with the petitioner became strained. When subjected to cross examination he stated as under:- I had never seen any student or boy in the quarter of the respondent with my own eyes. It is correctly recorded in my police statement) under section 161, Cr. P. C. I personally had never seen Mohd. Ayub respondent committing sodoming with any boy and it is also correctly recorded in my statement that I had not seen any student in the quarter of the respondent. I usually visited the quarter of the respondent in school time but some time when there was some special work I used to go to his quarter after school time. I had seen the Lady Teacher namely Mst. Nargas Nawaz Babar lying on the same bed with the respondent after school time. I do not remember the date, month and the year when I saw the said lady teacher in the quarter of Mohd Ayub, but it was during the days when I was posted in Government High School No. 1, Nowshera Cantt.. I did not lodge any report about this event to any of my officers. Although I had felt that it was a bad affair. It is manifest from what has been reproduced above that Muhammad Subban never saw any student in the residential quarter of the petitioner and he never asserted to have surprised the petitioner while committing sodomy on any, of the students. He had disclosed that the teachers Misal Khan, Gul Samar Shah, Abdullah Gul, Taj Muhammad and Bakhtzada also visited the quarter of the petitioner. It is interesting to note that none of these teacher nor any of the students subjected to sodomy was produced .by the prosecution at the trial for the reason best known to, it alone. There being no ocular evidence with regard to the allegation of sodomy made against the petitioner the prosecution case tumbles to the ground. It was not the allegation in the' complaint that the petitioner had an affair with the lady teacher or associated himself with other women of questionable character. The assertion of Muhammad Subhan with regard to the lady teacher named by him would, therefore, have no significance and being irrelevant is to be discarded altogether.

5. The other piece of evidence on which the prosecution case against the petitioner rested was the diaries alleged to have been maintained by him, It is alleged that be subjected a number of students to sodomy and made memoranda of his acts in these diaries regularly. Muhammad Subhan said to have produced these diaries to the authorities concerned and the entires made therein were examined by the Handwriting Expert Zahir Gul who was of the opinion that the entries in these diaries were in the hand writing of the petitioner. Mystery surrounds the circumstances in which Muhammad Subhan produced the diaries, the specimen handwriting of the petitioner was . obtained and Handwriting Expert submitted his report. Muhammad Subhan disclosed that the petitioner was waiting for a bus and on its arrival boarded it but left behind five diaries and one pocket book wrapped in a piece of cloth. He collected them and refused to return them to the petitioner: He handed over two diaries and one pocket book to the Deputy Director, Education, one diary pertaining to 1971 to the Martial Law authorities through Major Mahboob Shah, F.1. U. and one diary to the Crimes Branch when he was examined by an Investigating Officer of the Crimes Branch at Kohat. In view of the data furnished by Muhammad Subhan about the number of diaries parted with by him he would be in possession of one diary till now. It is interesting to note that he had produced one diary only pertaining to the year 1964, comprised of 128 pages, to S. I. Said Rasool vide recovery memo. Exh. P. C. dated 24-1-1980. There is other recovery memo. with regard to other diaries except recovery memo. Exh. P. B. dated December, 1980, whereby S. I. Said Rasool received from Deputy Director, Education one bound diary (1970) containing 1 16 pages printed by Ghulam Ali Publishers, Lahore, one bound diary containing 100 pages and one Friends unbound diary for the year 1972, containing 407 pages. There is nothing on the record to show as to when and in whose presence Muhammad Subhan had handed over these diaries to the Deputy, Director, Education. It may be pointed out that none of these diaries was produced and exhibited at the trial before the Tribunal. On my direction the learnedly Assistant Advocate-General produced for my perusal Ghulam Ali Publishers Diary for 1970. Friends Diary for 1972, and a pocket book. The diary for the year 1964 was produced by Muhammad Subhan vide recovery memo. Exh. P. C., dated 24-1-1980 nor the diary for the year 1971 taken into possession by Major Mahboob Shah was produced before me. With this narration of facts about the diaries I would now proceed to scrutinize the testimony of Zahir Gul, Handwriting Expert.

6. Zahir Gul stated that he compared the questioned English hand writing in the Feroze Laboratory Ltd. and Friends Diaries with the specimen of handwriting of the petitioner and his observation was that the writings in the diaries pointed to have been written by the petitioner whose specimen bad been supplied -to him. He submitted his report Ex. P. A. During cross- examination he stated as under :-- The specimen handwriting which I compared with the diaries is also not attached with the file, nor there is any photostat copies of the same. Photostat copies of diaries from page 3 to page 13 are attached with the file. The diaries which I compared with the specimen handwriting pertained to different years and dates. Two=diaries were of the year 1964 and one related to the year 1972. Certain facts which prominently emerge from the above statement assume significance. Zahir Gul referred to the two diaries of the year 1964 but these were not produced by the prosecution at all. So far as the diary for the year 1972 is concerned it too was neither shown to Zahir Gul at the trial now was produced before and exhibited by the Tribunal. Curiously enough, the specimen handwritings of the petitioner were not placed on the record and nobody knows as to when, where and in whose presence the specimens of his handwriting were obtained. Moreover, there is nothing on the record to show that Zahir Gul fell within the mischief of an "expert" as contemplated by section 45, Evidence Act inasmuch as it was for the prosecution to have established that he had made a special study of the subject or acquired a special experience therein and being possessed of an adequate special know ledge he can be termed as peritus: Furthermore, he gave no reasons whatsoever for his opinion that the handwriting in the diaries was that of the petitioner and had resemblance with the specimen handwriting obtained from him. It was desirable that the specimen of the handwriting of the petitioner should have been obtained in the presence of a Magistrate and duly attested by him.

7. The opinion of an expert is relevant under section 45, Evidence Act but cannot by itself form basis for conviction of the petitioner. 1t is observed in Ram Chandra and another v. State of Uttar Pardesh (P L D1957 S C (lnd.) 331), that normally it is not safe to treat export evidence as to handwriting as sufficient basis for conviction but the opinion of the expert may safely be relied upon if there are in addition various other items of external and internal evidence in support of it. In Syed Shabbir Hussain v. The State (1968 S C M R 1126), the evidence of the Hand writing Expert was termed as neither the only nor the best method of proving the handwriting or signature of a person. It was at best only opinion evidence. Since Zahir Gul gave no grounds nor basing his opinion it cannot be said that his opinion was from consideration.

8. M. Monir in his Principles and Digest of the Law of Evidence (1974 Edition) has, at page 635, described the following modes of proving hand writing - (i) by calling and examining the writer himself ; (ii) by the evidence of a person who saw the document being written. (iii) under this section, by the evidence of a person acquainted with the handwriting of the writer ; (iv) under section 73, by comparison of the disputed writing with the writing of the alleged writer ; (v) under section 45, by expert evidence. The petitioner denied the writing in the diaries whereas Muhammad Subhan did not claim to have seen the petitioner writing in the diaries. Muhammad Subban, however, asserted that he was acquainted with the handwriting of the petitioner. Faze Mabood, a teacher who appeared in defence was shown the Photostat copies from pages 3-13 of the diaries appearing on the record positively stated that these were not in the handwriting of the petitioner. Now there is a word of Muhammad Subhan against the word of Fazle Mabood and I see no reason to give preference to the former over the latter particularly when the former is an interested witness and belongs to a rival group of the teachers who is opposed to the petitioner. Explanation to section 47, Evidence Act pertains to the term "acquainted with the hand writing" and I wonder if the claim of Muhammad Subhan would fall within the ambit -of this Explanation. The Tribunal .did 'not compare the disputed writing with the admitted writing of the petitioner. It follows that none of the modes recapitulated above was followed by the prosecution to prove the handwriting of the petitioner.

9. The learned counsel for the State contended that the revision was not a competent one inasmuch as the impugned order had been passed under section 14 of the Ordinance whereas orders passed under sections 4, 13 and 16 only were revisable by the High Court and, secondly, the High Court could not set aside impugned order but could make such direction .as it may deem sufficient for the rectification of the error or the omission. A similar question came up for consideration in Haji Muhammad Hussain v. State (P L D 1970 Pesh. 58), wherein it was inter alia observed that "reading sections 13 and 14 together, it is inferable that the action contemplated under the latter section is consequential to and flows from the order of declaration under the former section." The fundamental principle of law laid down in Yousaf Ali v. Muhammad Alam Zia and 2 others (P L D 1958 Lah. 104), was referred to besides the observations made in Malik Mir Hussain v. The State (P L D 1969 Lah. 786), and it was held that the bond furnished by the petitioner under section 14 (1) (a) and orders under section 14 (1) (e) of the Ordinance were declared nullity with no legal effect. Moreover, the provisions of section 19 of the Ordinance were compared with those of section 115 of the Code of Civil Procedure and it was observed that the provisions of former had been borrowed from the latter with the omission of the words "or with material irregularity" from clause (c). Since the main ingredients of both the sections were synonymous the view that the Tribunal or the Commissioner appeared to have acted in the exercise of jurisdiction illegally could be based on authorities enuntiated under section 115 (c) of the C. P. C. The authorities referred to were Khair, Muhammad v. Abdul Latif (P L .D 1954 Bal. 29), Arif Yazdanf and others v. Sheikh Abdus Salam and others (5) and Khan Muhammad Khan and others v. Mir Sikandar Ali and others (P L D 1961 B J 42). It follows that an order can be interfered with in revision if it was' based on no evidence and had been passed by the Tribunal, in exercise of its jurisdiction illegally. In the instant case there was no legal evidence before the Tribunal and it was conscious of this fact as is evident from its remarks made in the impugned order that "from the evidence on record and arguments of the Defence Counsel I construe that the Investigating Agency has not taken enough pains in preparing the case and the investigation has been conducted in a very poor and haphazard manner'.'. Notwithstanding these remarks the Tribunal relied on the statement of the Expert Zahir Gill only and recorded the conviction of the petitioner. That a revision to the High Court is competent finds support from the observations made in Abdut Samad alias Dadda v. Khan Iqbal Ahmad Khan Lodhi; P. C. S., District Tribunal, Lahore and another (P L D 1972 Lah. 41).

10. The impugned order suffers from another legal infirmity too, namely, an order was passed against the petitioner under section 14, subjection (1), clauses (e) and (i) but no opportunity of being heard as contemplated by section 14 (2) of the Ordinance was afforded to the petitioner before passing this order. Such an order was nullity in, the eye of law as observed in Ch., Ghulam Muhammad v. The State and 3 others (P L D 1969 Lah. 767), Haji Muhammad Hussain v. State (P L D 1970 Pesh. 58) and Abdul Samad alias Dadda v. Khan 1qbal Ahmad Khan Lodhi, P. C. S., District Tribunal, Lahore and another. The impugned order was passed by the Tribunal on the basis of no legal evidence and in exercise of its jurisdiction illegally and it being erroneous in law I would direct the Tribunal to rectify this error by cancelling the impugned order. The revision petition is, therefore, accepted. S. A. H. Petition accepted.