WASEEM KHAN Versus State

KHADIM HUSSAIN M. SHAIKH, J.--- This criminal acquittal appeal is directed against the judgment dated 15.09.2011, passed by the learned Xth Civil Judge and Judicial Magistrate Karachi East, in Criminal Case No.37 of 2006, re-The State v. Mst. Shehnaz Khan and another, for offence under sections 419, 420, 468, 471, 448, 506, 34, P.P.C., registered at Police Station Aziz Bhatti, Karachi, whereby respondents Mst. Shahnaz Khan daughter of Muhammad Hanif and Tahir Mehmood son of Khalid Mehmood, have been acquitted of the charge, extending them the benefit of doubt.

2. Briefly the facts of the case are that on 01.03.2006 complainant Waseem Khan son of Shamraiz Khan lodged the above FIR at Police Station Aziz Bhatti, Karachi, stating therein that his father died on 15.10.2004. On 27.04.2005 he visited his father's Flat No.16, Dashtiyar Center, Block 13-A, Gulshan-e-Iqbal, Karachi and found the same in possession of one Shah Jehan. On inquiry it transpired that said Shah Jehan had purchased the said flat from Mst. Shahnaz Khan daughter of Muhammad Hanif, Tahir Mehmood son of Khalid Mehmood and Naeem Khan son of Mir Ahmed Khan and that Mst. Shahnaz Khan with the collaboration of others got a General Power of Attorney registered in her name with fake signature of complainant's father and then sold the flat to Shah Jehan. When the complainant enquired from Mst. Shehnaz about doing so, she extended threats to the complainant, hence the complainant lodged the subject FIR. Record reflects that after the investigation, accused Mst. Shahnaz Khan and Tahir Mehmood (`the respondents') were sent up with the challan, while co-accused Akmal Khan was shown absconder therein and whereas the names of accused Muhammad Ilyas son of Fayaz Muhammad Ex-Sub Registrar and Advocate Naseem Begum daughter of Master Shoabuddin, were placed in column No. 2 of the challan, finding them innocent.

3. After completing the formalities, a formal charge was framed against the respondents at Ex.3, to which they pleaded not guilty and claimed their trial at Ex.3/A and 3/B.

4. At the trial, the prosecution examined PW-1 complainant Waseem Khan son of Shamraiz Khan at Ex.4, who produced photocopy of M.L/Death Certificate of his deceased father at Ex-4/A, certified copy of General Power of Attorney at Ex.4/B to 4/Q, Jail Record of his father at Ex.4/R to 4/U, certified copy of judgment dated 25.01.2001, passed by Hon'ble Accountability Court No.1 Quetta against his father at Ex.4/V to 4/DM, certified copy of Sale Deed at Ex.4/DU to 4/EB, photocopy of payment receipt at Ex.4/EB, FIR at Ex.4/EC and original memo of Inspection of place of incident i.e. disputed flat at Ex.4/ED: PW-Kamran Khan son of Darman Khan was given up by ADPP for the State vide statement at Ex.03; PW-3 Abdul Rasheed son of Abdul Ghani at Ex.06; PW-04 Shah Jehan Khan son of Karim Bux Khan at Ex.07; PW-05 Investigation Officer SIP Ghulam Hussain at Ex.08, who produced attested copy of the register of Sub-Registrar bearing entry of registration of General Power of Attorney at Ex.8/A, report of the Superintendent of District Jail Quetta at Ex.8/B, Letter given by I/O to the Superintendent of District Jail Quetta at Ex.8/C, Letter addressed to the Sub-Registrar T-Division Gulshan-e-Iqbal, Karachi for verification of General Power of Attorney at Ex.8/D, statement of Naseem Begum Advocate at Ex.8/D and statement of Sub-Registrar Syed Muhammad Ilyas at Ex.8/E; and, the learned ADPP for the State then closed the side of the prosecution. After closure of the prosecution side, the statements of the respondents were recorded under section 342, Cr.P.C. at Exs.10 and 11, wherein they denying the allegations, professed their innocence and their false implication in this case and prayed for justice. The respondents had neither examined themselves on oath under section 340(2), Cr.P.C., nor did they examine any person in their defence witnesses.

5. At the conclusion of trial and after hearing the parties' counsel, the learned trial Court acquitted the respondents of the charge, extending them benefit of doubt vide impugned judgment dated 15.09.2011, as discussed in paragraph-1 [supra].

6. Having felt aggrieved by the said acquittal judgment, complainant Waseem Khan ('the appellant') has preferred this Criminal Acquittal Appeal.

7. The learned counsel for the appellant has mainly contended that the complainant by examining five witnesses and producing photocopies of death certificate of Shamraiz Khan, payment receipt, report of the Superintendent District Jail Quetta, Jail Record, certified copies of General Power of Attorney, Judgment dated 25.10.2001, passed by the learned Accountability Court-I, Quetta, sale deed and memo of inspection of place of incident etc., had proved his case against the respondents beyond reasonable doubt, but the learned trial Court without appreciating the evidence brought on the record in proper manner, has acquitted the respondents; and, that the impugned acquittal judgment is illegal. The learned counsel prays that this acquittal appeal may be allowed and the respondents may be convicted.

8. On the other hand, learned Additional Prosecutor General supporting the impugned acquittal judgment, has mainly contended that the findings of acquittal recorded by the learned trial Court in favour of respondents are based on appreciation of evidence; and, that there is no illegality in the impugned acquittal judgment. The learned Additional Prosecutor General prays for dismissal of the instant criminal acquittal appeal. None is present for respondents Nos.2 and 3 to address the Court on their behalf.

9 I have considered the submissions of learned Counsel for the appellant and learned Additional Prosecutor General and have gone through the material brought on record.

10. From a perusal of the record, it would be seen that the allegations against the lady accused Mst. Shahnaz ['the respondent'], were of selling Flat No.16, Dashtiyar Centre, Block-13-B, Gulshan-e-Iqbal, Karachi, belonging to the appellant's deceased father Shamraiz Khan to one Shah Jehan Khan by preparing and utilizing a fake General Power of Attorney with bogus signature of the complainant's father, executed in her name and whereas accused Tahir Mehmood and Akmal Khan were witnesses of the said General Power of Attorney; during the investigation co-accused Sub-Registrar Muhammad Ilyas, who registered the subject General Power of Attorney and Naseem Begum, advocate, who identified the executant i.e. the appellant's father Shamraiz Khan, to be the same person, were found innocent and their names were placed in Column No.II of the challan, but the appellant admittedly had not moved any application for their joining in the trial; Shah Jehan, who was purchaser of the subject flat instead of arraigning as an accused, was examined as a prosecution witness; the incident was shown to have taken place on 21.02.2002, when the alleged Power of Attorney was executed and on 09.03.2005, when the conveyance deed dated 09.03.2005 was executed and whereas the subject FIR was lodged on 01.03.2006 that is after four years of execution of Power of Attorney and one year of the execution of conveyance deed dated 09.03.2005 and there was absolutely no explanation for such an inordinate delay in lodgment of the FIR, which could not be lost sight of; in his FIR, the complainant had stated that his father had died on 15.10.2004, but it was not mentioned in the FIR that the complainant's father had died in a road accident in Quetta; that the purported MLC/Death Certificate, a photocopy whereof produced at Ex.4/A, was issued by an MLO of the Hospital at Quetta; that the complainant's father was in the Jail at Quetta from 2000 to 2004; and, that he was released in 2004 and whereas in his evidence the complainant had deposed that 'on 15.10.2004 my father was died on road accident in Balochistan....my father was inside the jail since 2000 to 2004 in Balochistan in NAB case; on 2004 my father was released from the jail, but the prosecution has failed to prove the death of the complainant's father Shamraiz Khan on 15.10.2004 in a road accident and his remaining in Jail from 2000 to 2004 by any evidence worth consideration; the complainant produced photocopy of the purported Medico Legal Certificate/Death Certificate at Ex.4/A, which from its face seems to be maneuvered and forged as name SHAMREZ KHAN...Asif Khan seems to have been written with different ink and different handwriting and it also does not bear the name, designation and official stamp of the MLO, who allegedly issued the same and even the author of the purported MLC/Death Certificate, was also not examined by the prosecution; the Photostat of the purported MLC/Death Certificate produced in evidence besides being vague in nature lacking in material particulars as discussed [supra], is also inadmissible in evidence as even the secondary evidence cannot be allowed unless conditions laid down in Article 76 of Qanun-e-Shahadat Order 1984, are satisfied by a party tendering such document in evidence; since the document does not prove itself and truth of the contents thereof, which cannot be proved by merely producing the same for inspection of the Court, therefore, the document upon which a party places its reliance must, at first, be placed before the Court and then be got proved by calling a witness / witnesses. Photocopy purportedly of MLC/Death Certificate produced at Ex.4/A without adhering to the provisions of Article 76 of the Qanun-e-Shahadat Order 1984, pertained to the official record of the Hospital at Quetta, but it had not been authenticated by calling its author or any other representative of the concerned Hospital, for, the production of the document and proof of the document are two different subjects, the document could be produced in evidence subject proof as required under Article 78 of the Qanun-e-Shahadat Order 1984, which for the sake of convenience is reproduced here:-

"78. Proof signature and handwriting of person alleged to have signed or written document produced. - If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting."

Furthermore, the appellant had even not moved any application for summoning the author of the purported MLC/Death Certificate and / or any official witness of the concerned Hospital, the custodian of the record relating to the purported MLC/Death Certificate to produce the record thereof in the Court, obviously for the reason that no such record was available in the concerned Hospital; no official from the staff of District Jail Quetta was examined by the prosecution to prove the authenticity and contents of the purported reports produced at Ex.4/R to Ex.4/U; although the complainant claimed that the General Power of Attorney in question contained bogus and false signature of his father Shamraiz Khan, but it is strange enough that General Power of Attorney was not sent to the handwriting expert for expert opinion on the signatures of complainant's father Shamraiz Khan available thereon, as was admitted by the Investigating Officer Sub-Inspector Ghulam Hussain by deposing that the document was not sent to the handwriting expert. Accordingly, the adverse presumption could legitimately be drawn against the appellant in view of Article 129(g) of Qanun-e-Shahadat Order, 1984.

In case of re-Wazirdullah and 9 others v. Land Acquisition Collector, A.C. Swabi (PLD 2003 Peshawar 235), Peshawar High Court has held that:-

Photostat copies of the mutations have been placed on file, which being secondary evidence could not be taken into consideration unless permission in accordance with 'Qanun-e-Shahadat' was obtained from the Court.

In case of Mukhtar Ahmad through Legal Heirs v. Muhammad Yunus and 4 others (2001 CLC 1796), following the dictum laid down by the Hon'ble Supreme Court, Lahore High Court has held that:-

"5. Article 75 of the Qanun-e-Shahadat Order, 1984, lays down in mandatory terms that a document must be proved by the primary evidence. Article 76 provides some exception to the said rule and as per clause (c) of the said Article secondary evidence may be given of the contents of a document when original has been lost. To my mind the learned trial Court has proceeded to allow the appellant to lead secondary evidence without there being any evidence on record to establish, what the learned lower Court has its described "alleged" lost of the original document. Learned counsel for the respondents relies on the case of Mst. Khurshid Begum and 6 others v. Chiragh Muhammad 1995 SCMR 1237. I find that the said judgment of the Supreme Court fully supports the contention of the learned counsel. The ratio of the said decision is that proof of lost of document is condition precedent to permission to lead secondary evidence. It was emphasized by the apex Court "if the loss is not proved secondary evidence would become valueless". I, therefore, find that the entire proceedings in this case stand vitiated because of the failure of the learned trial Court to act in accordance with provisions of the Statute as interpreted by the Supreme Court of Pakistan."

In the case of Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 Supreme Court 84), the Hon'ble Supreme Court has held that:-

"9...Besides adopting the reasons for not accepting this document in evidence, we further add that as per the statement of Mushtaq Ahmed, this conveyance was taken on record subject to its admissibility because the witness tendered its photocopy. Inasmuch as later on no steps were taken by the respondents to prove the contents of this document by leading primary or secondary evidence in terms of Articles 75 and 76 of Qanun-e-Shahadat Order, 1984. Therefore, this document also cannot be taken into consideration. It is also to be noted that merely by tendering a document in evidence it gets no evidentiary value unless its contents are proved according to law."

In case of Muhammad Azam and 5 others v. Abdullah and 15 others (1999 CLC 200), Quetta High Court has held that:-

"There is nothing on record to suggest that the "Sanad" i.e. original of Mark P.1 on Mark P.1/A was lost, or was not available with the plaintiff or that the same could not have been produced without inordinate delay or expense or even that the same was available on any record of the case with the District Magistrate, Nushki or any other Court. Mere production of copy of original document would not be enough to entitle any party to the suit to produce secondary evidence unless the conditions laid down for production of secondary evidence within the meaning of Article 76 of Qanun-e-Shahadat Order, 1984 stand satisfied; which are wanting in the instant case. The documents Mark P.1 and Mark 13.1/B also being not the certified copies, as such; no reliance can be placed on these documents."

In the case of Province of Punjab and 5 others v. H. Nizam Din and Sons Limited (2005 YLR 2007), Lahore High Court has held that:--

"6.... Unfortunately, the Courts below have not kept this aspect in view and basically considered Exh.P.4 for granting the relief, which document is not on the record of the appellants and the receipt thereof, has been denied. Moreover, this is only a copy of the original and has not been proved in accordance with law; no attempt was made for the production of the original of the said document and the copy without proving the case for secondary evidence, was inadmissible in evidence. Thus on this reason too, no much reliance could have been placed on Exh.P.4."

In the case of Oriental Shipping Co Ltd., Karachi v. Panaghia Odigitria and 2 others (1991 MLD 148), this Court has held that:-

"6....The original bills and vouchers have not been produced. Instead, the photo copies of bills and vouchers were produced. ...The plaintiff has neither alleged that these documents were lost by his Advocate, nor has he examined him or his clerk. He has also not claimed that these originals were produced in the court and lost by any clerk. Thus it would appear that there is no satisfactory evidence of the loss of the originals. The Defendants had denied/challenged the Photostat copies produced by the plaintiff. As such these Photostat copies cannot be relied upon."

Furthermore, the complainant had admitted in his evidence that he does not know as to when did his father purchase the said flat; that he had not obtained succession certificate pertaining to the estate of his deceased father; that he does not possess any receipt pertaining to the flat purchased by his father. PW Abdul Rasheed had stated that he used to work as property agent in Gulshan-e-Iqbal Karachi in the name of M/s. Estate Zone; that Shah Jehan Khan was tenant in that flat; that notice about the sale transaction was published in the daily Jasarat through his Estate Agency. PW Shah Jehan had stated that in October 2004 he purchased the said flat through Estate Agents Ismail, Rasheed and Majeed; that he purchased the flat for Rs.750,000/-; on payment of earnest money he received the copies of title documents of the said flat including General Power of Attorney executed in the name of Mst. Shahnaz, who informed him that Waseem is her step son. PW Investigating Officer Sub-Inspector Ghulam Hussain had stated that he recorded the statement of Naseem Begum advocate, who identified the executant of alleged General Power of Attorney; in his cross-examination he admitted that the alleged document was not sent to handwriting expert; that the statement of superintendent of Quetta Prison was not recorded before any Court; that Sub-Registrar concerned was not produced before the Court for recording his statement; that Shah Jehan was shown as an accused in the FIR, but was produced as witness in the challan; that no case under section 5 of Anti-Corruption Act, was made against the Sub-Registrar in the challan; that he had not asked complainant Waseem Khan to produce succession certificate in respect of Flat in question; that the original documents of the flat have not been produced before the Court. And, thus no evidence worth consideration was produced by the prosecution to prove that the complainant's father Shamraiz Khan was in jail on the relevant date and he had died on 15.10.2004 in a road accident in Quetta.

11. It is worthwhile to mention here that the examination under section 342, Cr.P.C. of the accused is not a mere formality and the same is to be carried out, so as to afford an opportunity to the accused to explain his/her position on each and every piece of evidence brought on the record by the prosecution to be used against him/her for the purpose of conviction; a perusal of the statements under section 342, Cr.P.C., of the respondents recorded by the trial Court, would reveal that neither the photocopy of the purported MLC/Death Certificate Ex.4/A, was confronted to the respondents in their statements under section 342, Cr.P.C., nor the alleged jail reports etc., were confronted to the respondents in their statements under section 342, Cr.P.C., therefore, the aforesaid documents could not be used against the respondents.

12. Apart from the aforesaid material inconsistencies, infirmities, discrepancies, dishonest and deliberate improvements with intent to strengthen the prosecution case made during the trial, rendering the prosecution case doubtful, there are many other material contradictions and infirmities in the prosecution case, which need not to be discussed here just to save the time and space. Patently, there was no evidence worth consideration to record conviction of the respondents. The learned trial Court after evaluating the evidence brought on the record acquitted the respondents of the charge, extending them benefit of doubt, as the prosecution had failed to prove its case against them beyond the reasonable doubt. It is reiterated that the principles for appreciation of evidence in appeal against the acquittal are now well settled, for, an accused is presumed to be innocent and if after trial, he/she is acquitted, he/she earns double presumption of innocence and acquittal judgment or order normally does not call for any interference unless it is found arbitrary, capricious, fanciful, artificial, shocking and ridiculous and while evaluating the evidence, difference is to be maintained in an appeal from conviction and an acquittal appeal and in the latter case the interference is to be made only when there is none reading and gross mis-reading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision can be given except that the accused is guilty. Reliance in this context is placed on the cases of Yar Muhammad and 3 others v. The State (1992 SCMR 96), Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), State/Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo (1993 SCMR 585), Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549) and State and others v. Abdul Khaliq and others (PLD 2011 SC 554). A perusal of the impugned acquittal judgment would reveal that the same is apt to the facts and circumstances of the case, which does not suffer from any illegality or any perversity or misreading or non-reading of the evidence, calls for no interference. The learned advocate for the appellant has also not been able to point out any illegality or any perversity or any arbitrariness or misreading or non-reading of the evidence by the learned trial Court while passing the impugned acquittal judgment, attracting interference of this Court. Accordingly, this criminal acquittal appeal being devoid of merit is dismissed.

JK/W-2/Sindh Appeal dismissed.