2018 M L D 546
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
STATE through Special Public Prosecutor, Anti Corruption Establishment ---Appellant
Versus
ALLAH DINA---Respondent
Crl. Acq. Appeal No.329 of 2011, decided on 15th May, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S.5(2) ---
Criminal Procedure Code (V of 1898), S.417---Criminal breach of trust by public servant or
by banker, merchant, agent, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, using as genuine a forged document, abetment, public servant committed or attempt to commit criminal misconduct---Appreciation of evidence ---Appeal
against acquittal ---Prosecution case was that ex -partner of the complainant with the collusion
of accused -respondent got transferred the land of complainant in the name of some other
persons through four mutations by putting his fake sign atures on the said mutations ---
Complainant claimed that his fake signatures had been put on the said mutation entries, but
the prosecution had failed to get compared the signatures of the complainant through Handwriting Expert ---Without such comparison of signatures it could not be safely said that
the signatures were genuine or fake one--- Even otherwise, on the application of complainant,
all the said four mutation entries had been cancelled by the concerned Revenue Authority and the said transfer of mutat ion entries were no more in the field---Witness of all the four
mutation entries appeared as prosecution witness and deposed that three mutation forms of complainant were given to him by the ex -partner of complainant bearing the signatures of
purchasers ---Said forms were delivered to the accused -respondent on the direction of ex -
partner of complainant ---Said witness further stated that the forms were blank, which he had
delivered to accused -respondent and he put his signatures on the said forms as attesting
witness ---Said witness admitted that the forms had the signatures of complainant---Statement
of said witness was important being attesting witness of the revenue record, which did not support the contention of the prosecution to connect the accused- respondent with the
commission of offence ---Circumstances established that prosecution had failed to prove its
case through confidence inspiring evidence against the accused -respondent ---Appeal against
acquittal was dismissed in circumstances.
(b) Penal Code (X LV of 1860) ---
----Ss. 409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2) ---
Criminal Procedure Code (V of 1898), S. 417--- Criminal breach of trust by public servant or
by banker, merchant, agent, cheating and dishonestly inducing delivery of property, forgery
for the purpose of cheating, using as genuine a forged document, abetment, public servant
committed or attempt to commit criminal misconduct---Appreciation of evidence ---Appeal
against acquittal ---Presumption ---Double presumption of innocence was attached to the order
of acquittal and interference was unwarranted unless the acquittal was arbitrary, capricious,
fanciful or against the record--- In the present case, the order of acquittal was neither arbitrary,
capricious, fancif ul nor contrary to the evidence on record, warranting interference, appeal
against acquittal was dismissed in circumstances.
Amir Hamza Mengal, Addl. P.G. for Appellant.
Muhammad Saleem Lashari for Respondent.
Date of hearing: 2nd May, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Acquittal Appeal
No.329/2011 filed by the State through Special Public Prosecutor Anti -Corruption
Establishment Balochistan Quetta, against the judgment dated 28th June 2011 (hereinafter referred as, "the impugned judgment") passed by the learned Special Judge Anti -Corruption
Balochistan Quetta, (hereinafter referred as, "the trial Court"), whereby the
accused/respondent was acquitted of the charge under Sections 409, 420, 468, 471, 109,
P.P.C. R/W Se ction 5(2) Act -II of Prevention of Corruption Act, 1947.
2. Facts of the case are that on 9th June 2010 the complainant Muhammad Ali son of
Ghulam Nabi lodged FIR No.3/Q/2010 at PS Anti -Corruption Establishment Quetta against
the accused -respondent, stating therein that he is the owner of lands bearing mutation
No.2257 dated 14th July 2009 and mutations Nos.2268, 2269 and 2270 dated 1st August
2009 measuring 22- rod situated at Mohal Karezat mouza Kirani Tappa Shadinzai Quetta,
while the complainant came to know that his previous partner namely Qurban Ali son of Haji Ali Ahmed, with the collusion of Allah Dina Patwari and others have entered the names of other persons, the details whereof are given below: --
Mutation
No. Names
2257 Abdul Khaliq son of Quban, Muhammad Afzal son of Qambar Ali,
Ali Khan son of Ali Juma, Razia wife of Qadir Ali, Khadim Hussain
son of Muhammad Ibrahim, Kalsoom Bibi wife of Abdul Majeed.
2268 S. Rehmatullah son of S. Ahmed Ali, Parveen wife of Ahmed
Hussain, S. Ismail Shah s on of Syed Muhammad, Muhammad
Hussain son of Aslam, Abdul Habib son of Sher Ali, Qambar Ali son of Najaf Ali, Abdullah son of Hashim, Noor Ali son of Yar Muhammad, Muhammad Hussain son of Ahmed Ali, S. Muhammad
son of S. Ibrahim, Zain Ullah son of Nasir Di n.
2269 S. Ismail Shah son of S. Muhammad Shah, Nazir Hussain on of
Sarwar, Ishaq Ali son of M. Hassan, Jan Muhammad son of Ali Akbar, M. Zahid son of Ali, Khadim Ali son of Muhammad Musa,
Amina Khanum wife of M. Hassan.
2270 Muhammad Ali son of Yousaf A li, Jan Muhammad son of
Muhammad Mohsin, S. Muhammad son of Syed Ibrahim, Barat Ali
son of Ramzan Ali, Khudai Dad son of Ibrahim.
It is further alleged after getting knowledge about the said forgery and transferring of
his property, the complainant submitted two applications dated 19th February 2010 and 19th
March 2010 to Tehsildar Quetta for taking legal action, but without any response, hence on
the basis of application dated 17th March 2010, the SSP Anti -Corruption Establishment
depute d Malik Muhammad Ramzan, who conducted thorough inquiry and on the basis of his
report, the Secretary S&GAD vide order dated 22nd April 2010 directed for registration of FIR.
3. In pursuance of above FIR, the investigation of the case was entrusted to PW -7
Khaliq Dad, IP/CIO, who during investigation took into possession the record of mutation entries along with copies of CNICs and all other relevant record; recorded the statements of witnesses under Section 161, Cr.P.C.; arrested the accused -respondent and subjected him to
investigation and on completion of investigation, submitted the challan in the trial Court.
4. At the trial, the prosecution produced seven witnesses. The accused- respondent was
examined under Section 342, Cr.P.C. However, the accused nei ther recorded his statements
on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion
of trial and after hearing arguments, the learned trial court vide impugned judgment acquitted the accused -respondent of the Charge under sections 409, 420, 468, 471, 109, P.P.C. read
with section 5(2) Act -II of Prevention of Corruption Act, 1947. Whereafter, instant appeal
has been filed.
5. Learned Additional Prosecutor General contended that the learned trial Court without
proper appr eciation of evidence and perusal of documents acquitted the accused/respondent
in hazard manner; that sufficient documentary evidence was brought on record against the
accused/respondent, but the learned trial Court without taking into consideration the sa me has
acquitted the accused from the charge; that the relevant documents i.e. mutation entries brought on record showing the forgery made by the accused/respondent by putting the fake signature of the complainant and showing his presence clearly establish es the case of forgery
against the accused/respondent; that confidence inspiring evidence brought on record to connect the accused/respondent with the commission of offence, but the learned trial Court without proper appraisal of documents acquitted the ac cused/respondent from the charge; that
the judgement passed by the learned trial Court suffers from material illegalities and irregularities and thus not sustainable and liable to be set aside.
6. On the other hand, the learned counsel for accused/responde nt contended that the
prosecution has failed to prove its case beyond any shadow of doubt; that the said mutation entries have been prepared and attested by the Naib Tehsildar, Qanoongo etc. but the same were not nominated in the FIR; that the signatures o f complainant were not sent to the Hand
Writing Expert to match the same with the signatures of the complainant; that the prosecution witnesses have admitted in their statements that the son of Haji Ali Ahmed namely Qurban Ali is the partner of the complainant, as such, their evidence are not reliable rather recorded with the connivance of the complainant; that the learned trial Court after proper appreciation had rightly acquitted the accused/respondent from the charge.
7. Heard the learned counsel for par ties and perused the record minutely. Record reveals
that the complainant Muhammad Ali filed an application with Director ACE Balochistan Quetta on 17th March 2010 with the averments that his property was transferred in the name of different persons by put ting his fake signatures on the mutation entries by the
accused/respondent. Record further reveals that the concerned Agency has taken into
possession the mutation entries Nos.2257, 2268, 2269 and 2270 and also the same documents
have been brought on recor d and produced as Article. Perusal of said documents reveals that
the mutation entry No.2257 was transferred in the name of different persons as stated above on 14th July 2009 bearing the signature of complainant along with others transferees as well as mu tation entry No.2268 was transferred in the name of different persons on 1st August
2009 also bearing the signature of complainant along with transferees. Mutation Nos.2268 and 2270 have also been transferred on the same date i.e. 1st August 2009 and beari ng
signatures of complainant along with transferees. It is pertinent to mention here that except entry No.2257 all other entries were witnessed by one Altaf Hussain and all four mutation entries have been attested by the Naib Tehsildar concerned. It is wor th to mention here that
despite the fact the complainant claimed that his fake signatures have been put on the said mutation entries, but the prosecution has failed to get compare the signatures of the complaint through Hand Writing Expert without adopting such procedure it cannot be safely said that
the signatures are genuine or fake one. Even otherwise, on the application of complainant all the said four mutation entries have been cancelled by the Naib Tehsildar City Quetta on 5th June 2010 and the said t ransfer of mutation entries are no more in the field.
8. The perusal of statements of PWs mainly the statement of PW -4 i.e. Altaf Hussain
also witness of the mutation entries" deposed in his Court statement, that he was working as Munshi with Haji Ali Ahme d and his son Qurban Ali in their Estate Agency and further
deposed that complainant Muhammad Ali was their partner in carrying business at Hazara Town and A -One City, while the often visited with them the Tehsil Office. He further
deposed that three forms of complainant Muhammad Ali were given to him by Qurban Ali
bearing the signatures of purchasers and told him to deliver the forms to Allah Dina Patwari. He further stated that the forms were blank which he had delivered to Allah Dina Patwari and
he put his signatures on the said form as attesting witness. He admitted in his cross examination that Qurban Ali is partner of Muhammad Ali as property dealer. He further admitted that no dispute arises between the partners. He further deposed in his cross examin ation that he did not know whether the three Intiqal forms containing the signatures of
Qurban Ali or otherwise, but however, admitted that the forms were bearing the signatures of complainant Muhammad Ali and voluntarily stated that at that time his signa tures were not
there.
9. In all episode, the statement of this witness was important being the attesting witness
of the revenue record, which does not support the contention of the prosecution to connect the accused/respondent with the commission of offenc e. Even otherwise prima -facie it is the sole
duty of the prosecution to prove its case beyond the shadow of any doubt, but we have observed that the prosecution has miserably failed to prove its case through confidence inspiring evidence against the accuse d/respondent, as such, the learned trial Court had rightly
acquitted the accused/respondent from the Charge. It is a settled principle of law that double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitrary, capricious, fanciful or against the record. In the instant case
the order of acquittal passed by the trial Court is neither arbitrary, capricious, fanciful nor contrary to the evidence on record, warranting interference by this Court.
For the above reasons, the appeal being devoid of merits, is dismissed.
JK/82/Bal Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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