' SAIYED SAEED ASHHAD, J.---These Criminal Appeals have been filed against the judgment of Lahore High Court, Lahore dated 29-11-2004 in Criminal Appeal No,1546 of 2000 whereby acquittal of the appellants was set aside and they were convicted under sections 419/ 420/468/471, P.P.C.
And each one of them was sentenced to rigorous imprisonment for 5 years and tine of Rs,20,000 and Rs,10,000 each under each of the afore-mentioned sections.
2. Feeling aggrieved and dissatisfied with their conviction and sentences they filed Criminal Petitions for Leave to Appeals Nos.6-L and 46-L of 2005. Leave to appeal was granted vide order dated 14-7-2005 to A reappraise the evidence as the judgments of two Courts below were at variance.
3. We have heard Messrs Mansoor-ur-Rehman, Advocate Supreme Court and Sardar Shakoor Ahmed, Advocate Supreme Court in both the appeals on behalf of the appellants and Mr. Muhammad Ilyas Siddiqui, Advocate Supreme Court on behalf of the complainant. Chaudhry Dil Muhammad Tarar represented the State and supported the judgment of Lahore High Court.
4. Messrs Mansoor-ur-Rehman and Sardar Shakoor Ahmed appearing on behalf of the appellants vehemently assailed the judgment of the High Court and submitted that it was absolutely in violation of the principles laid down by this Court relating to interference by the appellate Court in a judgment of acquittal. They submitted that after having been acquitted by the trial Court the appellants have acquired double presumption of innocence and the judgment of acquittal could be set aside only if there is some illegality, jurisdictional error, misapplication or misconstruing any provision of law or that the finding of the acquittal was absolutely perverse and contrary to the prosecution evidence brought on record. They further submitted that it is an established principle that if on the basis of prosecution evidence there is possibility of taking another view than the view taken by the trial Court then it would not be a sufficient ground for interfering with the judgment of acquittal. They strenuously submitted that the High Court completely ignored a very pertinent fact that the evidence of complainant Barkat Ali son of Meher Din was not recorded by the Presiding Officer nor was signed by him and it would be deemed that complainant Barkat Ali had not been examined.
5. Mr. Dil Muhammad Tarar, Advocate Supreme Court appearing on behalf of the State supported the impugned judgment and stated that the same did not suffer from illegality or irregularity warranting interference by the High Court in exercise of its appellate jurisdiction.
6. The Judicial Magistrate after thoroughly examining the evidence adduced by the prosecution as well as by the defence came to the conclusion that the prosecution failed to prove the guilt of the appellants beyond any shadow of doubt and they were entitled to be acquitted, accordingly, he ordered acquittal of the appellants. It will be useful to reproduce the relevant paras from the judgment of learned Judicial Magistrate dealing with the evidence of the parties and other material and important aspects of the case as under:-- "(i) After close of evidence of both the parties I have heard the arguments respectively advanced by them and gone through the record as well as the evidence recorded. The complainant deposed that he had sold land measuring ten Marla to Rafiq but incorrect Khasra number was written in the registered sale-deed and thus mutation could not be entered in the Revenue Record and he remained owner of land measuring 23 Marla in the record. He also deposed that Muhammad Rafiq filed civil suit against him that he had sold his land to someone else and the correction of Khasra number was made and mutation in favour of Rafiq was entered under the orders of the Court: This own deposition of the complainant reflects his conduct. If it was more incorrect writing of Khasra number in the document it would have been corrected without any litigation if the complainant would have been with clean hands. Muhammad Rafiq had to approach the Court in this matter.
The complainant alleged that general power of attorney was not executed by him in favour of Muhammad Rafiq son of Boota. It is clarified that this is some .Other Muhammad Rafiq and not Muhammad Rafiq to whom land measuring ten Marla was sold as discussed above. The alleged forged general power of attorney from the complainant in favour of Muhammad Rafiq is Exh.P.B., which was executed through Shabbir Hussain Ahl-e-Commission P.W.6. This document was sent to Handwriting Expert for comparison of thumb-impression taking the specimen thumb-impressions of the complainant as well as of the accused Salamat Ali and Barkat Ali son of Siraj Din. The report of the Handwriting Expert which is supported by deposition of the Finger Print Expert P.W.3 Muhammad Idrees S.-I.
Leads to the conclusion that these thumb-impressions are affixed in the name of the complainant and are different from his specimen thumb-impression but at the same time these thumb- impressions are also different from Barkat Ali son of Siraj Din and Slamat Ali. The specimen thumb- impression of Barkat Ali son of Siraj Din and Salamat Ali have been declared identical which were fixed under their own respective names. Therefore as per report of the Expert it cannot be concluded that Barkat Ali son of Siraj Din affixed his thumb-impression as the executant of this document. Prima facie their thumb-impressions appear to have been affixed as identifiers.
(ii) There is no corroboration to the deposition of the complainant that Barkat son of Siraj Din acted in his place as executant. The report of the Expert only shows that the thumb-impressions affixed on the power of attorney were not of the complainant but it does not prove that the thumb- impressions were affixed by Barkat Ali son of Siraj Din as executant appearing in place of the real person. Mureed Hussain Advocate appeared in the witness-box as P.W.5. He is the person who got executed the alleged registered sale-deed Exhs.P.2 and P.3 as Ahl-eCommission. He deposed that the documents were executed through general power of attorney and that the actual owner Barkat son of Mehr Ali complainant was also present at the time of execution of the registered deeds. He is the prosecution witness and of course his deposition cannot be termed as false or incorrect as regards the version of the complainant. His deposition prima facie proves that the alleged disputed sale-deeds were executed with the consent of the complainant Barkat Ali son of Mehr Ali and when the general power of attorney is seen in the context that the sale-deeds were executed in his presence, it would be concluded that the prosecution story about the forgery of general power of attorney is doubtful.
(iii) The complainant had filed two civil suits one against the Latif and Muhammad Rafiq and the other against Labha and Muhammad Rafiq. From the evidence adduced by the parties as discussed above it has revealed that both these suits were decreed on the basis of compromise and thus decrees were consent decrees. Therefore, it cannot be concluded that the decrees were passed in favour of the complainant on the ground that the documents were forged but on the other hand it appears that under some settlement the accused had got passed the said decrees in favour of the complainant but subsequently the complainant party did not fulfil the commitment.
So far as Rana Talib Hussain accused is concerned, his role has been stated that he was ring leader of the group. The defence version adopted by him is quite different. His version is that he paid Rs,94,000 to the complainant as dale price of the land measuring 23 Marlas. D.W.2 Javed-ur- Rashid Advocate deposed that he paid the amount to the complainant receiving from Rana Talib Hussain and he with his own handwriting wrote the receipt in this regard. Similarly he deposed that agreements to sell as well as irrevocable power of attorney from the complainant in favour of Rana Talib Hussain were written in his chamber on the same day. Nothing from the complainant has come on record to prove that these documents are not genuine. It is also observed that when civil suits were filed by the complainant as aforesaid he did not make Rana Talib Hussain as party in the said suits. Prima facie it can be concluded from the trial that the conduct of the complainant was not straight and bona tide. He had been transacting the sale of his same land with various persons and consequently they were forced to be involved in litigation civil as well as criminal."
7. Learned Judicial Magistrate on consideration, perusal and appraisal of the prosecution evidence concluded that the prosecution had failed to establish that the power of attorney, purported to have been executed by complainant Barkat Ali was allegedly forged or fabricated by the accused persons by fraud and impersonation and the contention that the said power of attorney was signed or thumb-impressed in the name of Barkat Ali son of Mehr Ali by some other person is absolutely baseless and categorically held that complainant Barkat Ali son of Mehr Ali had executed a valid and proper power of attorney which was duly attested by the witnesses and the contents whereof were written by the Advocates. Learned Magistrate had also taken into consideration the statement of the Advocate who had written the said power of attorney and in whose presence the executant and the witnesses signed and thumb-impressed the same and who also stated that at the time of execution of the sale-deed by the attorney, the executant namely complainant Barkat Ali was present. An other circumstance which prompted learned Judicial Magistrate to conclude that the power of attorney was properly and validly executed by complainant Barkat Ali is that complainant Barkat All had filed two suits against the appellants for cancellation of the sale-deeds and declaration that the power of attorney was a forged and fabricated document but instead of proceeding with the suit and getting them decided on merits he settled the dispute/comprised the matter with the defendants/appellants and withdrew the suits.
8. The High Court after examination, perusal and appraisal of the evidence observed that learned Judicial Magistrate had misread and ignored material prosecution evidence as a result of which he erroneously concluded that complainant Barkat Ali had executed a proper and valid power of attorney in favour of appellants and referred to the statements of the prosecution witnesses on the basis of which it came to the conclusion that complainant Barkat Ali son of Mehr Ali had never executed the power of attorney in question and it was somebody else claiming and impersonating himself to be Barkat Ali son of Mehr Ali had signed/thumb-impressed the power of attorney. High Court further observed that learned Judicial Magistrate had committed a grave error in not differentiating between complainant Barkat Ali son of Mehr Ali and another Barkat Ali son of Siraj Din who by cheating impersonated himself as Barkat Ali son of Mehr Ali. For coming to the above conclusion learned Single Judge of the High Court relied emphatically on the alleged error or inadvertence of the Judicial Magistrate in referring the complainant as Barkat Ali son of Siraj Din instead of Barkat Ali son of Mehr Ali.And he concluded that actually the trial Court while referring to complainant Barkat Ali son of Mehr Ali was in reality referring to Barkat Ali son of Siraj Din and on the basis of such wrongful assumption had come to the conclusion that the power of attorney was a proper, valid and legal document having been executed by Barkat Ali son of Mehr Ali which did not in any manner disprove the allegation of complainant Barkat Ali son of Mehr Ali that he never executed power of attorney and that it was a forged, fabricated and manipulated document executed by some person impersonating himself as Barkat Ali son of Mehr Ali. In view of the above observations, the High Court came to the conclusion that the prosecution had succeeded in establishing its case against the appellants and convicted them as stated above.
9. There is no denial of the fact that evidence of complainant Barkat Ali son of Mehr Ali was not recorded by the Presiding Officer as it was recorded by his Reader. Recording of evidence of a prosecution witness by the Reader would not suffer from any legal defect if the same was done in Court on the dictation of the Presiding Officer. However, there is no material on record to substantiate that the evidence of Barkat Ali son of Mehr Ali was recorded by the Reader on the dictation of the Presiding Officer. In the circumstances the possibility as stated by Mr. Mansoor-ur- Rehman, Advocate Supreme Court that the evidence of complainant Barkat Ali son of Mehr Ali was recorded by the reader in the office in the absence of the Presiding Officer cannot be brushed aside. It is also a fact, not denied by the prosecution, that the of the witness so recorded was not signed by the Presiding Officer. The above conduct of the Presiding Officer and the manner in which the proceedings were conducted also renders doubtful the legality of evidence of other prosecution witnesses. This aspect seems to have completely escaped the attention of the learned Judge of the High Court while deciding the appeal filed by the State notwithstanding the fact that the evidence of other, prosecution witnesses especially of the two Advocates who were associated with the preparation and execution of the power of attorney in question, if read minutely would appear to be not favourable to the prosecution so as to establish the guilt of the appellants.
Notwithstanding the above facts and circumstances, even if their evidence is found to be meritorious and supporting the prosecution case, the fact remains that in the absence of evidence of complainant Barkat Ali on whose F.I.R. The accused persons were challaned, the prosecution case would not stand proved beyond any reasonable doubt.
10. It was argued on behalf of the complainant that it would not be proper to hold that the complainant Barkat Ali was not examined there is no evidence of the complainant on record on the ground of non-signing of his deposition/statement by the Presiding Officer and that it should not be ignored from consideration. This contention is without any substance in view of the settled principle that sheets containing deposition/ statement of witnesses not bearing signatures of Presiding Officer of trial Court in token of their authenticity, and cuttings, interpolation not initialled or signed by the Presiding Office would amount to rendering such statements/depositions unreliable and the trial on the basis of such statements/depositions would be deemed to be contrary to law and no trial at all being violative of express provisions of section 356 Cr.P.C. Laying the mode and essential for recording of evidence, thus vitiating the same. It will be advantageous to refer to some of the decided cases on the subject of non-signing of depositions/statements of the witnesses and non-recording of the same in the presence of Presiding Officer.
11. In the case of Abdur Rehman v. Allah Diwaya PLD 1950 BJ 96 it was held that the evidence of the witnesses not recorded in compliance of the provisions of clauses (1), (3) and (4) of section 356, Cr.P.C. Would be an illegality vitiating the trial debarring the Presiding Officer/Judge from taking into consideration such evidence for recording guilt of the accused person. In the case of Muhammad Sarwar v. Khuda Bux'PLD 1950 Lah. 274 the Lahore High Court pronounced that noncompliance of provisions of section 356, Cr.P.C. Relating to recording and signing of statements/depositions of witnesses and the case papers would not be curable warranting the proceedings to be set aside and ordering re-trial.
12. From the pronouncements made in the aforesaid cited cases it is to be observed that failure of the Presiding Officer/Judicial Magistrate to put his signatures on the statements/deposition of complainant Barkat Ali has rendered such statements/deposition of complainant Barkat Ali as without having any legal backing and the same ought to have been ruled out of consideration.
Placing reliance thereupon by the Judicial Magistrate though not warranted by law, yet as he had acquitted the appellants it did not result in causing any injustice to the appellants and prejudice to the prosecution. However, great injustice was done to the appellants by the High Court by placing maximum reliance on the statement/deposition of complainant Barkat Ali, which in the eye of law was not warranted and would be deemed to be a non-entity. In view of the above, their conviction by the High Court was not warranted and the same cannot be sustained.
13. It may be pointed out that complainant Barkat Ali died during proceedings before the Judicial Magistrate and there is no possibility of re-trial. It is also pointed out that in the facts and circumstances of the case the allegations of the prosecution that the appellant had intentionally avoided cross-examination of complainant Barkat Ali during his lifetime as they apprehended that during the course of cross-examination they would not be able to distort and rebut the version given by him in his examination-in-chief which would have strengthened the prosecution case, it is to be observed that there is every possibility that the appellants had intentionally and deliberately avoided to cross-examine complainant Barkat Ali not due to the fear and apprehension that they would not succeed in rebutting shattering the evidence of the complainant but because they or their counsel was aware of the grave and serious illegality in recording of his statement/deposition and did not want to subject him to cross-examination so as to enable the prosecution to argue that having subjected him to cross-examination they would not be permitted to raise an objection relative to the validity and legality of his statement/deposition.
14. For the foregoing facts, discussion and reasons there is not the least doubt that the judgment of Lahore High Court in setting the judgment of acquittal of the appellants and convicting them is not based on proper appreciation and appraisal of the evidence, these appeals are allowed and the impugned judgment of the High Court dated 29-11-2004 is set aside and that of the trial Court is restored. The appellants shall be released forthwith if not required in any other case.
15. These are the reasons of our short order of the even date.