SHER MUHAMMAD Versus State
SOHAIL NASIR, J.--- By way of this single judgment, above mentioned Criminal Appeal No. 1396/2010 filed by Sher Muhammad and Criminal Appeal No. 1570/2010 by Ghulam Yaseen (Appellants) are being decided together as arise out from judgment dated 19.05.2010 passed by learned Special Judge Anti-Corruption, Sargodha on the basis of which both appellants were convicted and sentenced as under: -
Ghulam Yasin i. Under section 420, P.P.C. to undergo seven years and fine of Rs. 3,00,000/-. ii. Under section 468, P.P.C. to undergo seven years and fine of Rs.3,00,000/-. iii. Under section 5(2) of P.C.A. to undergo seven years RI and fine of Rs.3,00,000/-. iv. In default of payment of fine he shall further undergo six months SI.
Sher Muhammad i. Under section 420, P.P.C. to undergo five years RI and fine of Rs.10,00,000/-.
2. Sentences of both appellants were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was also extended to them. The convictions and sentences were outcome of case FIR No.03 (PC/1) recorded on 06.04.2006 under sections 409/420/468, P.P.C. read with section 5 of the Prevention of Corruption (Act II of 1947) (the Act) at Anti-Corruption Establishment, Sargodha.
3. Facts of the case are that Muhammad Rafiq (PW-6) moved an application (PC) to the Deputy Director Anti-Corruption, Khushab where he maintained that Sher Muhammad (appellant) having connivance with officials of Housing department, had prepared a bogus allotment (P-21) with regard to plot No.21 measuring eight Kanals which resulted into loss of billions of rupees to the Government. On the basis of said application FIR was recorded. During investigation transpired that Allotment letter was in favour of Sher Muhammad (Appellant).
4. On conclusion investigation report under section 173, Cr.P.C. was submitted in Court.
5. A charge under sections 420/468/ 471, P.P.C. read with section 5 of the Act on 08.10.2009 framed against appellants was denied by them and they demanded their trial.
6. In support of its case prosecution had produced Liaqat Hayat District Revenue Officer who produced the record (PW-1), Khaliq-ur-Rehman Director Housing whose forged signatures were shown on the allotment letter (PW-2), Noor Muhammad HC/a witness to memo. of securing of documents (PW-3), Khalid Hussain Tarar Inspector/IO (PW-4), Farrukh Sohail who conducted part investigation/Circle Officer (PW-5), Muhammad Rafiq/complainant (PW-6), Muhammad Ismail/a formal witness (PW-7), Sajjad Ali Inspector, who conducted formal investigation (PW-8), Ghulam Abbas Deputy Director (PW-9), Muhammad Mumtaz HC/author of FIR (PW-10) and Ghulam Muhammad Junior Clerk (PW-11).
7. After producing certified copies of various documents (PF to PN) learned Law Officer had closed prosecution's evidence.
8. Both appellants were examined under section 342 Cr.P.C. and their versions were as under:-.
Ghulam Yasin
"I have been falsely involved in this case by the Anti-Corruption Establishment to save the skin of Khaliq-ur-Rehman, Deputy Director Housing who had actually sanctioned and approved the sale deed in respect of plot No.21 in the name of Sher Muhammad. I have been made escape goat being junior official"
Sher Muhammad
"I have been falsely involved in this case by the Anti-Corruption Establishment to save the skin of Khaliq-ur-Rehman, Deputy Director Housing who had actually sanctioned and approved the sale deed in respect of plot No.21 in my name"
9. Both appellants opted not to appear in terms of section 340(2), Cr.P.C. Only Sher Muhammad produced certain documents (DA to DD) in his defence.
10. Both sides have been heard and with their valuable assistance record of learned trial Court has also been perused.
11. There is no denial to the fact that a forged allotment letter was (prepared, but the controversy is that whether Ghulam Yaseen had managed it by joining Sher Muhammad as a tool or position was otherwise? This is also not disputed that on allotment letter there were the signatures of Khaliq-ur-Rehman, Director Housing and Town Planning who appeared in Court as PW-2. He maintained that his signatures were fictitious and he never signed any document. This gentleman denied that he was considered as accused in this case and later on declared as innocent. This speaks about his mala fide because, Khalid Hussain Tarar Inspector (PW-4) in cross-examination replied that "it is correct that relying upon the handwriting expert I have concluded and found Khaliq-ur-Rehman as innocent".
12. During investigation specimen signatures of Khaliq-ur-Rehman were obtained and sent to hand writing expert for comparison with signatures on allotment letter and the report was negative. It is surprising that, if specimen signatures of Khaliq-ur-Rehman were referred to expert, why specimen signatures of both appellants in particular Ghulam Yaseen clerk were not taken for this purpose? It appears that the focus in the investigation was to negate the participation of senior officer but not to collect cogent and convincing material against appellants. The expert report could be the best evidence against appellants, because there is not a single witness who had seen in particular Ghulam Yasin preparing any forged allotment letter. He was simply a junior clerk who had nothing to do with such affairs and it is an admitted fact that any allotment if had to be issued that was be by the Director Housing and Town Planning.
13. Statement of Ghulam Abbas (PW-9) who was draftsman in the department is very important in this case who told some other story. He maintained that "Later on propriety rights were transferred to Sher Muhammad son of Noor Muhammad (Appellant) which was illegal". He never said that the allotment letter was forged. He admitted that both the appellants did not prepare any forged document in his presence.
14. All Investigating Officers had every opportunity to obtain specimen signatures of appellants for comparison but they avoided to do so, hence this Court can safely conclude that involvement of appellants is on the basis of presumptions only. It is settled principle of law that presumption however strong may be, it cannot take the place of legal proof.
15. No doubt that the allotment was in favour of Sher Muhammad but unless it is proved that he had the knowledge or he had connived with Ghulam Yasin or any other official of the department he cannot be declared guilty mere on the reason that he is a beneficiary.
16. The learned trial Court did not take much pain to evaluate the material by following the settled principles for appreciation of evidence and it had blindly followed, what prosecution claimed therefore, impugned judgment cannot sustain.
17. Resultantly both criminal appeals are allowed. Impugned judgment dated 19.05.2010 is set aside. Appellants are acquitted from the charges. They are on bail. Their sureties are discharged from terms and conditions of bail bonds.
MH/S-45/L Appeal allowed.