GUL KHAN vs The STATE

ABDUL LATIF KHAN, J.---This criminal revision has been directed against the judgment dated 19-5- 2014 passed by learned Additional Sessions Judge/Izafi Zila Qazi, Chakdara, Dir Lower, whereby judgment and order regarding conviction and sentence of petitioner under sections 419 and 205, P.P.C. Passed by Judicial Magistrate-II/Illaqa Qazi, Chakdara, in case F.I.R. No. 483 dated 27-11-2012, registered at Police Station, Asbanr, was maintained.

2. Gul Khan, the convict/petitioner, was required in criminal case registered vide F.I.R. No. 1077 dated 3-10-2008, registered under sections 302/324/34, P.P.C. On 30-10-2012, SHO, Police Station, Asbanr, received information regarding his presence in his house, therefore, he along with other police party raided his house at 7.55 hours. The convict/petitioner on seeing the police party tried to run by scaling over the wall but was over powered along with klashnikov with twenty live rounds of 7.62 bore. Since no license or permit was produced for the arm and ammunition, therefore, he was booked under section 13 of Arms Ordinance. The convict/petitioner disclosed the name of his father as Jamil instead of Bacha Rehman, however, his name was mentioned in the above referred case as Gul Khan son of Bacha Khan. During his personal search CNIC was also recovered wherein name of his father was mentioned as Jamil. During inquiry under section 156(3), Cr.P.C. It was disclosed that the convict/petitioner had prepared a bogus CNIC disclosing his father's name as Jamil instead of Bacha Rehman in order to save his arrest in the above referred criminal case and, as such, the above referred F.I.R. Was registered against him.

3. After Completion of investigation, complete challan was submitted before the Court. The learned trial Court after compliance of the legal formalities, framed formal charge against the convict/petitioner to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case examined eight witnesses, thereafter; petitioner was examined under section 342, Cr.P.C. Learned trial Court, after conclusion of trial, convicted and sentenced the convict-petitioner as under:--

(i) Under section 419, P.P.C. To undergo three years' RI with fine of Rs. 20,000 or in default thereof to suffer SI for three months.

(ii) Under section 205, P.P.C. To undergo three years' RI with fine of Rs. 20,000 or in default thereof to suffer SI for three months. Both the sentences were directed to run concurrently, however, benefit of section 382-B, Cr.P.C. Was extended to him.

4. Feeling aggrieved from the order of conviction and sentence, the petitioner filed an appeal, which was also dismissed by learned Additional Sessions Judge, Chakdara, vide judgment dated 19-5-2014, hence, the present criminal revision.

5. Arguments of learned counsel for parties heard and record perused.

6. The record reveals that the petitioner was proclaimed offender in the above referred case and local, police conducted raid on his house and during his body search CNIC was recovered wherein his father name was mentioned as Jamil instead of Bacha Rehman. Admittedly, the father name of petitioner is Bacha Rehman while according to Exh.P.W.2/4, the father name of petitioner in the NADRA record has been entered as Jamil. Bacha Rehman, father of appellant, appeared as P.W.1, who admitted that appellant is his son. He further deposed that the convict/petitioner prepared his CNIC with the name of Jamil as his father for the purpose of security checking. The petitioner/convict in his statement under section 342, Cr.P.C. Stated that NADRA has wrongly entered his father name in his CNIC. P.W.6, Shakeel Ahmad, Assistant Director, NADRA, admitted the certificate, Exh.P.W.2/4, issued by him according to which the father name of appellant has been entered as Jamil. Section 416, P.P.C. Defines cheating by personation to be cheating pretending to be some other person, or knowingly substituting for another. The petition& was using a CNIC by pretending to be not the son of Bacha Rehman, therefore, the prosecution has succeeded to establish the guilt of petitioner beyond any shadow of doubt.

7. The contention of learned counsel that section 205, P.P.C. Is not attracted in the case has force because for the constitution of offence under section 205, P.P.C. The act must have been done in a suit or criminal proceedings and where the offence is alleged to have been committed in, or in relation to, any proceeding in any Court, no court shall take cognizance of the offence except on the complaint in writing of such Court as required under section 195(1)(b), Cr.P.C. And procedure as provided in sections 195 and 476, Cr.P.C. Should be adopted, therefore, section 205, P.P.C. Is not attracted in the case in hand. However, keeping in view the facts and circumstances of the case, the quantum of sentence recorded under section 419, P.P.C. Also require reconsideration.

For the aforesaid reasons this criminal revision is partially allowed, conviction and sentences recorded by trial Court under section 205, P.P.C. Is set aside and the petitioner is acquitted of the charge under the said section of law while conviction and sentence under section 419, P.P.C. Is reduced to two years, however, order of payment of fine of Rs. 20,000 under the above section is maintained.