1. ' The instant criminal revision petition under section 439, Cr.P.C. Has been directed against order dated 29-12-1997 passed by the Additional Sessions Judge-III, Quetta in Criminal Appeal No,31 of 1997, whereby the appeal filed by the petitioner against the order of the Judicial Magistrate-III/MFC Quetta has been dismissed and against the order, dated 10-12-1997 of the Judicial Magistrate, whereby the petitioner has been convicted under sections 420/468/471, P.P.C. And sentenced to suffer R.I. For one year for each of the aforesaid offence, directing the sentences to run concurrently.
2. The brief facts of the case relevant for the disposal of the petition are that on 6-2-1996 the respondent No,2 filed a Criminal Complaint under sections 420/468/469/471, P.P.C. Against the convict (petitioner) in the Court of District Magistrate, Quetta which was sent to the file of A.C./S.D.M., City who on 16-2-1996 sent the same for inquiry to the S.H.O. P.S. City Quetta under section 202, Cr.P.C., who recorded the statement of complainant witnesses and took into possession documents relevant into the matter vide inventory and also obtained the specimen signatures of the petitioner before EAC-II/MFC, Quetta and sent the same along with the disputed signatures of the petitioner to the Handwriting Expert and on having received with positive report of the Handwriting Expert and after completion of investigation into the alleged crime, challan Exh.P.9- B was submitted in the Court of Judicial Magistrate-III, Quetta.
2. ' It has been alleged in the complaint Exh.P/1-A that the respondent No,2 is a businessman by profession having office at Choohar-Mal Road, Quetta to whom two contracts for supply of cement, RCC pipes and bricks etc., were awarded vide Order No,840-41 dated 26-6-1994 and Order No,847-48, dated 29-6-1994 which were issued by the petitioner under his signatures as Extra Assistant Director, Agriculture who on 14-2-1995 in his capacity as Deputy Director, Agriculture, Balochistan, Quetta issued cheque valuing Rs,50,00,000 bearing Account No,PLS-10-340 875 dated 14-2-1995 drawn at National Bank of Pakistan Branch, Civil Secretariat, Quetta vide forwarding letter dated of even date, which was allegedly presented at the aforementioned branch of the Bank but was dishonored. Further the case of the complainant as set up in the complaint is that pursuant to the aforementioned supply orders he supplied the required items to the Agriculture Department for which Department was liable to pay him Rs,1,12,00,000 and accordingly approached to the said Department but the petitioner being the Deputy Director Agriculture only extended promises to him that the payment of the above-mentioned amount will be made to him and for the purpose the complainant had also submitted an application to the respondent but the payable amount remained outstanding and finally the complainant issued legal notice dated 23-9-1995 to the petitioner and to the Director-General Agriculture of Balochistan and to the Secretary Government of Balochistan Agriculture Department apprising them about the above-mentioned facts, with the request that the amount of Rs,1,12,00,000 be paid to him as against the items/goods_ supplied to the Department pursuant to the, work orders and the Director Agriculture Department vide his letter No,13199-201/Estt./I dated 10-10-1995 informed that inquiry conducted into the matter revealed that the petitioner was personally liable for the deal, who has forged and issued fake documents in the name of Government Department. In view of the above-mentioned facts it has been alleged in the complaint that the petitioner on account of fraudulent and dishonest means cheated the petitioner intentionally, who also prepared fake and forged documents and used the same dishonestly, as a consequence whereof the petitioner divested of his property.
3. ' The petitioner was indicted for the offence under sections 420/468/471, P.P.C. On 2-7-1997 by the leaned Judicial Magistrate-III, Quetta to which he did not plead guilty and the prosecution to substantiate the accusation examined 9 witnesses and after that the petitioner was examined by the learned trial Court under section 342, Cr.P.C. In the light of the incriminating pieces of evidence wherein the petitioner denied the prosecution case as a whole except that his specimen signatures were obtained before EAC-II, Quetta and the remaining of his attributed signatures appearing on the documents produced in evidence have been specifically denied to be correct. The petitioner opted to make statement on oath under section 340(2), Cr.P.C., in disproof of the charge.
3. The learned trial Court vide judgment dated 10-12-1997 convicted and sentenced the petitioner as hereinfore mentioned and appeal preferred against the said judgment has also been dismissed by the learned Additional Sessions Judge-III. Both of these judgments have been assailed through the instant revision petition.
4. Mr. Basharatullah, the learned counsel for the petitioner contended that:--
(a) The documents produced by the prosecution during the course of trial in order to prove the accusation has been improperly admitted in evidence because for want of original documents having been brought in evidence, no reliance for the purpose of conviction can be based on Photostat copies.
(b) Photostat copies of the documents on the basis of whereof to a great extent the petitioner has been found guilty was not admissible as secondary evidence.
(c) The ingredients of the offences for which the petitioner has been found guilty and sentenced to, are lacking in the light of available evidence.
(d) The prosecution evidence in quality and character wants so as to result in conviction of the petitioner.
(e) Both the Courts below ignored the above-mentioned legal aspects of the case, and; required to be attended to.
4. ' The above-noted grounds, according to the learned counsel if were considered by the Courts below, would not have resulted in conviction of the petitioner. He placed reliance on PLD 1978 Lah.
5. 47, 1990 CLC 331 and 1982 PCr.LJ 658.
6. ' Mr. Muhammad Riaz Ahmed the learned counsel for the respondent No,2 (complainant) argued that the documents were admitted in evidence without objection by the defence, inasmuch as; such objection was not even taken before the Appellate Court, therefore, such an objection cannot be entertained at the revisional stage of proceedings. According to the learned counsel most of the important and substantial documents produced in evidence by the prosecution has been admitted by the petitioner in his statement recorded under section 340(2), Cr.P.C. The learned counsel contended that the charge against the convict has been established beyond doubt in accordance with law on strong evidence, which constituted the offences for which the petitioner has been convicted and sentenced.
7. ' Mr. Zahid Moquim Ansari appearing for the State adopted the arguments of the complainant's counsel and submitted that the petitioner in his statement on oath recorded by the trial Court admitted all the material documents on which the case of the prosecution to a great extent is based, therefore, at the revisional stage, admissibility of such documents cannot be objected to.
8. ' The contentions put forth on behalf of the parties have been considered in the light of the record of the case and the law.
9. ' In order to substantiate the accusation against the petitioner besides oral evidence, photostat copies of documents i,e, Mark/5-A, Mark/5-B, Mark/5-C, Mark/5-D, Mark/5-F and Mark/5-G were tendered in evidence at the trial without objection by the defence. The case of the prosecution primarily to a great extent is based on these documents and the evidence of Farzand Ali (P.W.6)
10. Handwriting Expert becomes relevant only upon the required proof of the execution and contents of the above-noted documents. It may be noted that the testimony of P.W.6 is to effect that the attributed signatures of the petitioner appearing on the documents mentioned above and produced by this witness as Exh.P/6-A to Exh.P/6-G and the specimen signatures of the petitioner obtained by the Investigating Officer before the EACII/MFC are identical and of the same person. It is pertinent to note that some of the documents (photo copies) tendered by the petitioner i,e, Mark/D-1, Mark/D-4, Mark/D-5 and Mark/D-6 support to the case of the prosecution to some extent, yet these documents alone are deficient in character to constitute the alleged offences, and; secondly Mark/D-2 and Mark/D-3 rather go contra to case of prosecution, whereas; documents Mark/D-4 to Mark/D-6 as above-mentioned render some material support to prosecution version but on the basis of such documents, the contents and execution of the documents produced by P.W.5 and P.W.5 cannot be deemed to have been proved.
11. ' The documents produced in evidence by the prosecution except the report of the Handwriting Expert, and specimen signatures of the petitioner; unless admitted in writing before the trial Court by the petitioner within the meaning of Article 76(c) of Qanun-e-Shahadat Order, 1984 would not dispense with the requirement of the formal proof of the documents by primary evidence as provided by Articles 72 and 73 of the Order. Secondary evidence can be admitted only on one or more conditions laid down in Article 76 of Qanun-e-Shahadat Order having been satisfied by the party tendering such evidence and; secondary evidence cannot be admitted of the contents of document without the non-production of the original having first been accounted for as required by the above-mentioned Article. The reception of secondary evidence without objection by the party against whom it is intended or required to be used in evidence cannot ordinarily object to the admission of such evidence at any subsequent stage, subject to provisions of Article 162 of Qanun- e-Shahadat Order.
12. ' Perusal of the record of the case reveals that the documents tendered by the prosecution were received in evidence improperly without the production of their originals and the conditions pre- requisite for permitting secondary evidence were also wanting and mere consent or omission to object to the reception of inadmissible evidence cannot be treated as a valid and legal piece of evidence because such departure of the rule appears to have a substantial effect on the decision of the Courts below, which if excluded might have resulted in varying the decision, in view of the facts and circumstances of the case, and thus; the judgments impugned herein cannot sustain and; therefore, the other contentions of the parties counsel are not attended to. The case-law cited by the petitioner's learned counsel are not relevant because of wrong reference.
13. ' As the appraisal of evidence at the revisional stage would be improper and unjustified, therefore, the case has to be remanded to the learned trial Court.
14. ' In view of the foregoing reasons, the impugned judgments, dated 29-12-1997 and 10-12-1997 respectively passed by the learned Additional Sessions Judge-III, Quetta and Judicial Magistrate-III, Quetta are set aside and the case is remanded to the learned Judicial Magistrate/trial Court for rewriting of judgment after hearing the parties, on exclusion of the documentary evidence originals whereof were not tendered in evidence by the prosecution/complainant, on its own merits. The petitioner be released from jail custody on furnishing bail bond in the sum of Rs,2,00,000 (Two lacs) with two sureties each consisting of Rs,1,00,000 (one lac) and P.R. In the like amount to the satisfaction of Judicial Magistrate-III, Quetta pending disposal of the case by the learned trial Court.
15. ' Consequently; the revision petition stands partly accepted to the above-noted extent.