' MRS. YASMIN ABBASEY, J.---On 24-5-1992, F.I.R. No,42 of 1992 was lodged by Inspector Abdul Latif Khan on a complaint No, 10 of 1986 received from Anti-Corruption Establishment, Karachi against Bashir Ahmed son of Rafiq Muhammad Khan, Clerk, K.D.A. And others being employees of K.D.A. And K.M.C., broker Majid Ali son of Riasat Ali, Sadiq Ali son of Riasat Ali and Nisar Ali, Notary Public/Oath Commissioner. Investigation was conducted by Inspector Abdul Latif Khan and as per his report in 1973 plot No,R-489, Bufferzone was allotted to Abdul Majeed son of Abdul Aziz in a draw of K.D.A.
Employees quota. He made payment of Rs,36 towards the said plot. Subsequently, due to involvement of Abdul Majeed in a murder case hewas confined in jail. Prosecution's case is that during detention of Abdul Majeed in Jail, Majid Ali and Sadiq Ali in collusion with Bashir Ahmed, who was Head Clerk in K.D.A. Department purported to have been signed by original allottee Abdul Majeed through his attorney Majid Ali, the appellant No,1 on the basis of that power of attorney and application they also got possession of the property.
2. According to Abdul Majeed he was acquitted and was released from jial on 10-5-1977. After release he came in the knowledge of the fraud committed with him by the appellants/accused as such he moved an application to Martial Law Authorities but in vain, therefore, he moved another application to Anti-Corruption Authorities and the matter was processed.
3. On this complaint of Abdul Majeed and investigation conducted by Inspector Abdul Latif, a case was registered against the appellants along with Bashir Ahmed Khan, Nasir Ali and Murli Dhar.
4. After submission of challan and completing the initial steps in the matter, charge was framed against Majid Ali, Sadiq Ali and Bashir Ahmed Khan on 20-10-1994. Subsequent thereto Murli Dhar after grant of interim pre-arrest bail made his appearance on 18-3-1996 and accused Nasir Ali appeared on 20-3-1996, therefore, a second charge against both these accused persons -was framed on 11-7-1996. It is thereafter the trial has commenced, statements of prosecution witnesses as well as of the accused persons were recorded and finally by judgment, dated 9-52000 accused Bashir Ahmed, Syed Nasir Ali and Murli Dhar were acquitted, whereas accused Majid Ali and Sadiq Ali were convicted to suffer sentence for five years' R.I. With a fine of Rs,1,00,000 each and in default of payment to suffer further R.I. For one year each.
5. Being aggrieved with the judgment both appellants/accused Majid Ali and Sadiq Ali have preferred this appeal.
6. Commencement of trial has been challenged by learned counsel for appellant that the very charges framed on 20-10-1994 and 11-7-1996 were defective as they do not contain the facts alleged against these appellants. To support his argument, learned counsel has referred cases of Mumtaz Ali and another v. The State (2000 PCr,LJ 367); Ch. Khadim, Hussain v. The State (PLD 1985 SC (AJK) 125) and Dur Muhammad alias Duri and others v. The State (1994 MLD (Lahore) 1493), wherein it is observed that if the charge has been in excess of the case of the prosecution and it is quite different to what has been stated in the F.I.R., conviction and sentence is to be set aside.
7. The charge against these appellants is that they fraudulently had executed power of attorney dated 28-10-1976 naming Abdul Majeed as the executant in favor of appellant No,1 Abdul Majeed and on the basis of that power of attorney an application was moved on behalf of Abdul Majeed under his signatures to Director, Housing Management of payment of balance amount of the said plot and thereafter by another application, dated 28-10-1976 under the signatures of Abdul Majeed, Plot No, R-489 is shown to have been sold out to Sadiq Ali son of Riasat Ali. Sale agreement to this effect was also executed on 28-10-1976. Side by side possession of the plot is also shown to have been delivered to Sadiq Ali on 29-12-1976 under the document titled as `acknowledgement of possession'. Hence it is contended by learned counsel for appellants that in view of the state of facts the whole case should have been put before the appellants while framing the charge on 20- 10-1994 but the facts as contained in the amended charge prepared on 11-7-1996 against accused Syed Nasir Ali and Murli Dhar alleging that these appellants got attested General Power of Attorney, dated 28-10-1976 executed by Abdul Majeed in favor of Majid Ali from Nasir Ali in the capacity of Notary Public is not part of the first charge framed on 20-10-1994 as such these appellants were unaware of the subsequent allegations alleged against them in the amended charge, as the contents of that charge were neither read over to them nor they had admitted the guilt as shown therein.
8. The perusal of both the charges framed on 20-10-1994 and 11-7-1996 if read together reveals that no new case has been set up in the second charge framed in July, 1996 as the allegation of attesting the documents by the present appellants from Syed Nasir Ali are also appearing in the first charge framed against the appellants. So far as the allegation against accused Murli Dhar is concerned, it is correct that he has not been specifically named in the first charge but the undisputed fact is that he was a K.D.A. Employee and in the capacity of K.D.A. Employee in collusion with the present appellants all this game of transferring of property owned by Abdul Majeed in favor of Sadiq Ali had taken place and such statement is appearing in the first charge of 20-10- 1994, which reads as under:-- "That you accused Majid Ali in collusion with K.M.C. And K.D.A. Employees filed application in the name of original allottee with his forged signatures for payment of full amount of the plot knowingly that the original allottee was confined in jail
9. Hence apparently no defect is appearing in the charge framed in the matter as the very purpose of charge is to enable the accused to know the precise accusation against him which he is required to defend during the trial and to give him a sufficient time to make prepare himself to defend. Authorities as cited by learned counsel for appellants with propounded respect are not applicable in the matter as in the first citation Mumtaz Ali and another v. The State (2000 PCr.LJ 367), conviction was set aside on the basis of defective charge in the circumstances as the date, time and set of accused persons shown in the charge were absolutely different to what was narrated by the complainant in F.I.R., whereas in the second authority referred as Ch. Khadim Hussain v. The State (PLD 1985 SC (AJK) 125), in a case registered under section 10 of Cooperative Banks (Repayment and Recovery of Loans) Ordinance, 1978, it was observed that if a person fails to fulfil the condition as required under section 3 of Loan Ordinance , he is liable for action under section 10 of the Loan Ordinance but in that case it was noticed by the Hon'ble Supreme Court of AJK that the learned special Judge under the wrong interpretation that ingredients of section 5 had been complied with had framed the charge. While in the case of Dur. Muhammad alias Duti and others v. The State (1994 MLD (Lahore) 1493), conviction was set aside on the ground that the charge framed against appellant by trial Court does not contain the necessary ingredients as laid down under the law. It was further observed that when the charge does not give full notice to the accused of the allegations or the charges then it will vitiate the whole trial.
10. The fact that P.W. Abdul Majeed was confined in jail on 26-6-1974 and was acquitted on 10-5- 1977 is undisputed. Period of detention had been further proved by producing conviction order in sessions case No, 24 of 1976 (State v. Ansar Ahmed and Abdul Majeed), dated 10-5-1977, letter of S.H.O. Police Station Gharo addressed to Executive Engineer Gharo Division (Civil) K.D.A. Gharo confirming his arrest in F.I.R., No, 31 of 1974 on 26-6-1974 and Certificate of Assistant Engineer Gharo Division (Civil), dated 21-9-1992. In view of undisputed event of confinement, let the matter be examined per admission of appellant Majid Ali in his statement under section 342, Cr.P.C. In answer to question No,6, appellant Majid Ali admitted that he had executed the acknowledgment of possession as attorney of P.W. Abdul Majeed and the same is genuine one. Again in answer to question No,7 it is stated by him that it is correct to say that the said plot has been subsequently transferred in the name of Sadiq Ali as stated in the question but it is incurred that the sale agreement or power of attorney were bogus.
11. The other appellant Sadiq Ali also in his statement under section 342, Cr.P.C. In answer to a question "have you to say anything else?" has specifically stated that the sale agreement and power of attorney in question are genuine document and not bogus one.
12. Though original General Power of Attorney has nct been placed on record, anyhow, photocopy of the same has been examined and it isobserved that it was executed on 28-10-1976 when admittedly P.W. Abdul Majeed was in Central Prison and if the admission of both these appellants that this Power of Attorney is a genuine one is taken into consideration then I am afraid that both these appellants would not be able to meet the situations, as by virtue of Rule 548 framed under Prisons Act, 1984:-- "No prisoner shall be allowed to have an interview or to write letter except with the permission of the Superintendent, which shall be recorded in writing."
Rule 550 of the Act further provides that:-- "(i) Interviews and letters allowed to a prisoner shall be entered on his history ticket and initialed by the Superintendent or by an officer deputed by him.
(ii) Every interview shall also be recorded in the interview register and entries shall be initialed by the Deputy Superintendent and Superintendent.
(iii) All petitions, Vakalatnamas and notices sent or received by prisoners shall be entered on the history tickets. All registered letter and parcels received by prisoners shall be similarly recorded."
13. Admittedly in the present case appellants have failed to produce any document to support that even if the Power of Attorney, dated 28-10-1976 as per their statements is taken to be genuine then whether the same was got executed by them from P.W. Abdul Majeed in accordance with the required Prisons Rules quoted above. The contents of Power of Attorney coupled with the application presented on behalf of P.W. Abdul Majeed under his signatures to K.D.A. Authority on 28-10-1976 and sale agreement of October, 1976 did not bear the seal and signatures of the Superintendent of Prison in proof of their executionin presence of Superintendent Prison. In absence of the required certificate authenticity of these documents is highly doubtful and particularly under the circumstances when the burden to prove the genuineness of these documents was on appellant. As it is a settled principle that the initial burden is always on a person who upon existence of certain fact seeks a favorable judgment ,in his favor. Record reveals that appellants never attempted to discharge this burden, as required and shifted on them under Article 119 of Qanoon-e-Shahadat.
14. On 31-12-1992 Deputy Superintendent Police, Anti-Corruption Establishment, Karachi had sent original sale agreement, the transfer application and one another application, having signatures of P.W. AbdulMajeed, to the Assistant Inspector-General, Criminalistic Division, Karachi for comparison with the specimen signatures of Abdul Majeed taken before the Magistrate for opinion. On 12-1-1993 Assistant Inspector-General, Criminalistic Division by his letter No, CD/OR/QD-4 had sought further date of examination with the findings quoted below:-- "(1) The signature on the front page of Sale Agreement is marked as Q1, which is not according to the forwarding letter as well, the signature on the transfer application is also marked as Qi, which requires clarification and proper labeling.
(2) The clarification whether the signature of vendor on page 2 of the sale agreement is also disputed.
(3) Good number of routine signatures of Abdul Majeed of the period before and after the dates of the dispute signatures.
(4) Original National Identity Card and departmental Identity Card."
15. According to P.W.5 Inspector Ali Khan Bahoo, the required data could not be furnished due to non-availability of Abdul Majeed and non-production of original NIC by him. Even if this incapability of the Investigating Officer to have the signatures of P.W. Abdul Majeed or his NIC was the cause of not providing the required data to criminalistic Division but no reason has been assigned by appellant that to prove the genuineness of all the disputed documents why they themselves during the trial of case had not attempted to obtain signature of P.W. Abdul Majeed, who indeed had appeared before trial Court. Generally in criminal proceeding the burden to prove the happening of incident is always on prosecution, but if accused relies on general exemption and insists on happening of a particular incident, as is in the present case, where both appellants have admitted the execution of power of attorney, application for issuance of allotment order and sale agreement in favor of appellant Sadiq Ali during the period when Abdul Majid was confined in Central Prison, burden to prove the execution of these documents was on them, which they miserably failed to discharge.
16. In view of foregoing reasons, I do not find any sufficient ground to disturb the findings of the learned Trial Court. Hence the appeal of the appellants is hereby dismissed.