1983 P Cr (PLP)

In his defence, the appellant examined Muhammad Mustafa Exh. 33, Adil Sher Exh. 34, Kora Khan Exh. 35 and Azizullah Exh.

36. The appellant closed his side vide statement Exh.

39. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant above‑named as herein before mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo. of appeal. The learned Advocate for the appellant in support of the above Appeal submitted as under :‑ (a) This is a case of no evidence; as prosecution failed to produce necessary documents to establish the charges against the appellant. (b) That the learned Trial Court has not appreciated the statement of D. W. 4 which has fully supported the case of the appellant. (c) That Investigating Officer did not seize the relevant registers of d. p. O. without which prosecution case against the appellant cannot be established. (d) That appellant had denied his signatures on Exhs. 6 and 7 and consequently these documents ought to have been referred by the learned trial Court to the Handwriting Expert, which was not done and consequently in the absence of handwriting expert report, Exhs. 6 and 7 on which the prosecution case mainly rests were not proved in accordance with a law of evidence and as such these documents could not form basis for the con viction of the appellant. (e) That the prosecution failed to bring on record total sale as well as purchase of the Defence Saving Certificate in question by the Sub‑Post Once, on the relevant dates and as such prosecu tion failed to establish its case completely. (f) That even the learned trial Court did not compare the signatures of the appellant with his disputed signatures on Exhs. 6 and 7 in accordance with the provisions of section 73 of the Evidence Act, so as to arrive at conclusion that the disputed signatures are in fact the signatures of the appellant. (g) In the alternative, the case is of 1971 and the appellant has to face a long trial and furthermore he remained in custody in all for over 3 months and as such this is a fit case, where the sentence awarded to the appellant be reduced to one already undergone by him. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1973 SCMR 36, P L D1965 S C 179, 1975 P Cr. LJ 634 and P L D 1962 S C

489. That the learned Advocate for the State on the other hand submitt ed, that prosecution has established his case beyond reasonable doubt against the appellant, by the evidence adduced by it and for the cogent reason the learned trial Court has convicted the appellant and conse quently, he fully supports the impugned judgment. I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as the impugned judgment and the cases cited by the learned Advocate for the Appellant. I find great force in the contentions that have been raised by the learned Advocate for the appellant before me. It is an admitted posi tion, that appellant had denied his writing as well as his signatures on Exhs. 6 and 7 on the basis of which alone prosecution case mainly depended and consequently these disputed documents ought to have been sent to the; Handwriting Expert for comparison with the admitted writing and signatures of the appellant. This was not done. In addition to this l find, that the learned trial Court did not exorcise its powers under section 73 of the Evidence Act and compared the admitted signatures of the appellant with his disputed signatures on Exhs. hand 7, but in spite of this, merely on the statement of P. Ws. who are not the Handwriting Experts nor they have stated that they were familiar with the signatures of the appellant, came to the conclusion, that Exhs. 6 and 7 are in hand writing of the appellant and also bear his signatures. Such conclusion of the learned trial Court cannot legally be sustained, Furthermore I find, that the Investigating Officer did not seize the relevant documents for purposes of Investigation from the G. P. O. nor the prosecution had produced total sale and purchase of the Defence Saving Certificates made at the Sub‑Post Office in question on the relevant dates and as such if Exhs. 6 and 7 for the arguments sake are accepted to be in the hand writing of the appellant, then too in my opinion the prosecution case does not stand proved. Appellant examined D. W. 4 Azizullah Cheema who in my opinion has in fact supported the stand of the appellant. Keeping in view of the above conclusions and appraisal of the prosecution evidence on record, 1 am of the opinion, that prosecution has failed to establish its case beyond reasonable doubt, against the pre sent appellant, as in the absence of the total sale and purchase of the Defence Saving Certificates on the relevant dates made by the Sub‑Post Office in question, the Exhs. 6 and 7 by itself cannot establish the charges levied against the appellant. Therefore, I allow the above appeal and set aside the conviction of the appellant and sentences awarded to him and acquit him by given him benefit of doubt and discharge the Bail Bonds executed by the Appellant, in the above appeal. Appeal allowed.