MUHAMMAD RIAZ Versus THE STATE
This appeal challenges the impugned judgment, dated 2-11-1986 passed by the learned Special Judge, Anti-Corruption, Sargodha and Faisalabad Divisions with Headquarters at Sargodha, by which he convicted and sentenced the appellant under section 468, P.P.C. till rising of the Court with a fine of Rs.1,000, and in default of payment thereof to undergo further simple imprisonment for one month.
2. The facts giving rise to the present appeal are that on 16-7-1984 P.W.3 Mian Sher Muhammad Kamyana, Consolidation Officer made a complaint (Exh.PA.) for registration of a case to the S.H.O., Police Station. Anti Corruption, Jhang Sadar to the effect that during hearing of consolidation appeal, the Collector (Cons.) the Additional Deputy Commissioner (Cons.), Jhang noticed that Muhammad Riaz, appellant/ex-Patwari (Cons.) of village Bindagoonawala, Tehsil Shorkot in the course of consolidation proceedings kept secret an aria of 3 Kanals consisting of Khasra No.87/5/2 and after sanction of consolidation scheme (Parchi Taqseem Khatooni), entry of the said area was surreptitiously made through interpolation, thus increasing the land of one Fazil (not witness) to the extent of 3 Kanals. Thereafter on 28-5-1983 the same 3 Kanals of land was transferred in the name of Falak Sher son of Allah Bakhsh. On departmental iquiry, the offence was proved. The appellant was first suspended and then dismissed, as he with mala fides and dishonestly forged the documents and had committed an offence under sections 420161, 468/471, P.P.C. and section 5(2) of the Prevention of. Corruption Act 1947. P.W.1 Rai Ahmad Yar, Circle Officer, Anti-Corruption Establishment, Jhang on 1-8-1984 at 7-30 p.m. recorded F.1.R. (Exh.PA./1) on the basis of Exh.PA. with the Police Station Anti-Corruption Establishment, District Jhang. The appellant was charged under section 468, P.P.C. to which he denied and claimed trial.
3. The prosecution examined six prosecution witnesses in all to substantiate its case. P.W.1 Rai Ahmad Yar was a writer of the F.I.R. Exh.PA./1 as well as an Investigating Officer. P.W.2 Muhammad Iqbal stated that the appellant served as Consolidation Patwari in his village and the land comprised in Khasra No.87/5/2 measuring 3 Kanals was entered in the Parchi Khatoni Ishtmal issued to Fazil. P.W.2 filed consolidation appeal before the Additional Deputy Commissioner (Cons.), which failed and then he preferred appeal before the Additional Commissioner (Cons.), who remanded the matter to the Additional Deputy Commissioner (Cons.). Then the A.D.C.(C) allotted the aforesaid Khasra number to P.W.2. P.W.3 Mian Sher Muhammad Kamyana, complainant while working as Consolidation Officer, Shorkot sent complaint Exh.PA. signed by him to the police station for registration of the case. He also sent photo copies of register scheme of Mauza Bindaggonawala Exh.PA./2, copy of Khatoni Pemaish Exh.PA./3, photo copy of Mutation Register Exh.PA./4, copy of order, dated 12-2-1984 passed by A.D.C.(C), Exh.PA./5 and Index PA./7 to the police alongwith Exh.PA. P.W.4 Ghazi Khan stated that the appellant was a Consolidation Patwari of his village and after consolidation, the accused-appellant transferred his 3 Kanals of land without his consent by sale to one Falak Sher, who is father-in-law of the pick and choose the land of his choice land to Fazil and gave them inferior quality land in their absence. An appeal was filed and their joint Khata was restored. The appellant had transferred that 3 Kanals of land to Fal4k. her for Rs.1,500 without their consent. P.W.6 has stated that the appellant as Consolidation Patwari P.W. was co-sharer in joint Khata. They had made a settlement of their two squares of land with mutual consent and Fazil had picked up land of his own choice. The appellant gave good land to Fazil and bad land to them and 3 Kanals of land was unjustly given to Fazil. They filed an appeal. Fazil sold the said 3 Kanals of area to Allah Bakhsh for Rs.1,499 which price was received by Fazil and then this amount was distributed by Fazil and Riaz appellant.
4. It has been urged before me that P.W.3 complainant was not competent under the law to file complaint Exh.PA. and Exh.PA./2, Exh.PA./3, Exh.PA./4 and Exh.PA./5 are not certified copies of the originals. Hence on this score only, the conviction of the appellant cannot stand. Exh.PA. was drafted by P.W.3, Consolidation Officer, whereas it has been provided under section 195(c), Cr.P.C. that no Court shall take cognizance of any offence described in section 463, Cr.P.C. or punishable under section 471, 475 or 476 of the same Code when such offence is alleged to have been committed by a party to any proceeding in the Court in respect of a Court is subordinate. Exh.PA. has not been filed by the Additional Deputy Commissioner (Cons.) Jhang who is alleged to have detected the forgery by the appellant during hearing of an appeal Exh.PA./2, Exh.PA/3, Exh.PA./4 and Exh.PA./5 are the photo copies. Under Article 77 of the Qanun-e-Shahadat, the contents of documents may be proved either by primary or by secondary evidence, and in the present case neither the primary nor the secondary evidence was led by the prosecution to prove the authenticity of Exh.P/2 to P/5.
5. The specimen of handwriting of the appellant was not obtained and sent for comparison with the alleged forged document. It is the duty of the prosecution to prove its case beyond any shadow of doubt. But in the present case complaint Exh.P.A. was not lodged with the police by a competent public servant. In no way P.W.3 was competent to lodge the complaint against the appellant and as such the same is without jurisdiction. Primary or secondary evidence in respect of Exhs.PA./2, PA./3, PA./4 and PA./5 has not been produced.
6. In view of the above discussion, the criminal appeal filed by the appellant Muhammad Riaz is allowed and he is acquitted of the charge. He is on bail, his bail bonds are discharged.
N.H.Q./M-1019/L Appeal allowed.