MUHAMMAD BOOTA Versus THE STATE

ORDER

This criminal revision has been filed under section 435/439, Cr.P.C. calling in question the order dated 8-6-1993 passed by the learned Special judge, Anti-Corruption, Gujranwala Camp at Sialkot by virtue of which the application filed under section 540, Cr.P.C. seeking the direction for referring the Mutation, No.482, dated 26-6-1991 to Handwriting Expert for comparison of signatures of the accused, Nasar Patwari was dismissed.

2. The facts to be noted are; that a criminal complaint was filed by Muhammad Boota petitioner herein, against Nasar Patwari and his co-accused in the Court of Special Judge, Anti-Corruption, Gujranwala Camp at Sialkot under section 406/420/419/468/471, P.P.C. to the effect that on the demise of the father of the petitioner, his estate was developed upon him, three sisters and one widow of the deceased. The accused persons in connivance with each other got transferred 25 Marlas of land in the name of Muhammad Nawaz, father of Tariq, co-accused. It was alleged that the accused persons prepared a forged Mutation No.482, dated 26-6-1991 showing the transfer of the land measuring 17 Kanals and 16 Marlas belonging to Mst. Bashiran Bibi and Mst. Naziran Bibi, his real sisters in the name of the petitioner. The said mutation ultimately was found forged. The mutation in connivance with the accused persons was prepared by Nasar Patwari in his own handwriting, who signed the same. The mutation even does not exist in the revenue record. The learned trial Court referred the matter under section 202, Cr.P.C. to the Assistant Commissioner, Pasroor for inquiry.

3. The learned trial Court, on the receipt of the inquiry report, framed the charge under section 420/34, P.P.C. on 26-9-1993 against the accused persons to which they did not plea guilty. The statement of Shahnawaz, Patwari (P. W'.1) was recorded, who deposed that the Original Mutation Register for 1991 regarding the Village Chahar indicates that Mutation No.484, dated 26-6-199: pertains to Village Abadi of seven Marlas and it was sanctioned in the name of one Ghulam Rasool. He further stated that on 26-6-1991 Nasar Patwari was the Incharge of the abovesaid village. He does not find mention any entry in the register regarding the Mutation No.482, dated 26-6-1991 in the name of the petitioner.

4. The petitioner filed an application under section 540, Cr.P.C. on 27-11-1993 for obtaining the specimen signatures of Nasar Patwari, accused and sending the same to the Handwriting Expert for comparison, which was dismissed.

5. The learned counsel for the petitioner has argued that the real controversy in this case is of forged mutation bearing the signatures of Nasar accused, who had denied the preparation of the said document. He was Incharge of the said village on 26-6-1991. Further argued that section 540, Cr.P.C. consists of two parts; the first part gives the power to the Court to summon any person as a witness or examine any person in attendance, though not summoned as a witness whereas the second part of the section is mandatory to meet the ends of justice. Section 540, Cr.P.C. reads as under:--

"Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. "

Maintains that the application was made when the accused did not plead guilty. Had he pleaded himself guilty the necessity of filing an application would have not arisen. The comparison of signatures of the accused is very essential in this case for the just decision. Further maintains that the learned trial Court without application of judicious mind has committed an error while dismissing the same.

6. On the other hand, the learned counsel for the State opposed the contentions raised by the learned counsel for the petitioner stating that if the comparison of signatures was so essential, the name of the witnesses could be given at the very outset of the proceedings. The application made at this belated stage is not granted and has rightly been dismissed by the learned trial Court.

7. I have heard the learned counsel for the parties at full length and have also given my anxious considerations to the facts and the law.

8. Admittedly, the criminal complaint was filed on 14-4-1993. The letter for the grant of sanction for prosecution was written vide No. 198/AC, dated 14-4-1994 and the sanction was accorded by the concerned Commissioner on 28-5-1993. The cognizance was taken and the charge was framed on 26-9-1993 in which the accused persons pleaded not guilty. The objection of the learned trial Court that the witnesses could not be summoned at this belated stage is of no legal effect because the application for sending the specimen signatures of Nasar Patwari to the Handwriting Expert for comparison could have only been made when accused denied the charge and refused to accept that he had prepared and signed the forged document and not at the time of filing of the complaint. The inquiry was got conducted by the Court and thereafter the sanction for prosecution was sought. The purpose of inquiry under section 2b2, Cr.P.C. is only to ascertain the truth; obviously the truth was found tentatively in the complaint. Now the matter is to be decided after giving full opportunity to the accused to defend his case. The denial of the charge in the case means that Nasar accused had not signed the forged document and no conclusion can be drawn without the verification of the signatures of the alleged author of the forged document. The mere reading of the relevant section makes it abundant clear that any Court at any stage of the trial, may summon any person as a witness or examine any person in attendance though not summoned as a witness under this section. There is a discretion of the Court under first part of the section which cannot be denied but the discretion is to be used judiciously and with full application of mind, keeping in view the circumstances of the case. The learned trial Court erred to hold that the mutation in question was not the part of the relevant record and omitted to know that it was only the case of the complainant that the impugned mutation did not exist in the record but was prepared through a fake document and with intent to cause damage to petitioner, the forgery was committed. The application can be made under section 540, Cr.P.C. at any time or at any stage of the trial even after, the closure of the prosecution evidence and may also be allowed if the circumstances of the case so permit in order to reach the just conclusion. The reliance is placed on Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Muhammad Rauf Anwar v. The State and others 1992 PCr.LJ 7229.

9. I respectfully agree with the observation that the primary function of the Court is to reach the just conclusion and to find out the truth. Technicalities ordinarily should not be allowed to create hindrance or thwart in the safe administration of justice.

10. The trial is at initial stage; the comparison of the signatures is deemed to be essential in this case. The trial Court is directed to send the specimen signatures to Handwriting Expert and after receiving the opinion of the Handwriting Expert the accused shall also be given a very fair chance to defend his case.

11. In view of the above discussion, I accept the petition and set aside the order, dated 8-6-1994 passed by the learned Special Judge Anti-Corruption.

N.H.Q./M-2490/L Revision accepted