1. ' RAHMAT HUSSAIN JAFFERI, J.--- The present appeal is directed against the judgment, dated 30-5- 1995 passed by the learned IIIrd Additional Sessions Judge, Nawabshah by which the learned Judge convicted the appellant for offence punishable under section 466, P.P.C. Read with section 471, P.P.C. And sentenced him to suffer R.I. For 15 months and fine of Rs.1,000 or in default thereof to suffer R.I. For three months. The appellant was further convicted for offence punishable under section 193, P.P.C. And sentenced to suffer R.I. For one year. Both the sentences were ordered to run concurrently.
2. ' Brief facts giving rise to the present appeal are that the appellant filed appeal before the District Judge, Nawabshah showing himself as attorney of Ismail son of Jan Muhammad. The appeal was preferred against the dismissal order of application under Order XLI, rules 1 and 2, C.P.C. Passed by the IInd Senior Civil Judge, Nawabshah in F.C. Suit No,24 of 1992 (Ismail v. Government of Sindh and others). Before the Civil Court Ismail was represented through another attorney Fattan alias Fateh Muhammad. Before the admission of appeal, the learned District Judge, Nawabshah directed the production of Ismail vide his order dated 18-1-1992. In pursuance of the said order on 7-11-1992 one Ismail appeared before the District Judge, Nawabshah. The Advocate for the respondents moved an application that said Ismail was a fictitious person, therefore, his statement might be recorded.
3. On the same date the court put the said Ismail in the witness-box and recorded his statement. The Advocate for the appellant also moved an application that said Ismail was fictitious person, therefore, he might be allowed to cross-examine him, such permission was granted and the said Ismail was cross-examined. The said Ismail deposed that he was contacted by one Mukhtar Ahmed Khanzada about 3/4 days back at Karachi and told him to accompany him to the Court and that he should say that he was Ismail son of Jan Muhammad, therefore, he appeared and made statement. He further deposed that he did not appoint any Noor Muhammad as his attorney nor he knew the said Noor Muhammad. Respondent was shown to him in the Court but he stated that he did not know him and he saw him for the first time in the Court. He also stated that he was brought from Karachi by Mukhtar Ahmed Khanzada and not by Noor Muhammad Keerio. The learned District Judge dismissed the appeal in limine and issued notice to Noor Muhammad requiring him to show cause as to why he should not be prosecuted for forgery and filing false affidavit. In pursuance to the said notice, the appellant replied the notice by taking the plea that he did not produce the said Ismail before the Court nor he knew him, as he was a fake and fictitious person. He also took the plea that said Ismail was brought by Mukhtar Ahmed Khanzada. He also denied about the filing false affidavit before the Court. The learned District Judge found the explanation unsatisfactory, therefore, he took the cognizance under section 476, Cr.P.C. And directed the prosecution of the appellant for offences punishable under sections 466, 467, P.P.C.
4. Read with section 471, P.P.C. And section 193, P.P.C.
5. ' The appellant challenged the said order before this Court in a revision application but the said application was dismissed for non-prosecution. The appellant surrendered before the trial Court where he was tried.
6. ' On 3-4-1995 charge was framed by learned IIIrd Additional Sessions Judge, Nawabshah as the case was assigned to him. The said Court framed charge that on 19-7-1992 the appellant forged irrevocable general power of attorney alleged to have been executed by Ismail and that he made false affidavit that he was attorney of Ismail.
7. ' In support of the case, the prosecution examined one witness Allah Dino, Record-keeper of District Court Nawabshah, who produced the relevant documents including the affidavit dated 8-10-1992 filed along with application under Order XLI, rule 5, C.P.C. And photostat copy of general power of attorney dated 19-7-1992. Prosecution closed the side.
8. The appellant in his statement recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. He claimed that Ismail son of Jan Muhammad, for whom he appeared as attorney had executed general power of attorney in his favour on 19-7-1992 but he expired on 25-10-1992. He produced the death certificate of said Ismail son of Jan Muhammad. In his defence, he examined D.W. Adam Bhai son of Ismail. His evidence reveals that his father Ismail had appointed the appellant as attorney through Exh.5-R (general power of attorney). After seeing the said exhibit, he disclosed that it bore the signature of his father and that his father expired on 25-10-1992. He also produced the death certificate of his father.
9. ' The learned trial Judge after considering the evidence and hearing the parties convicted the appellant, as mentioned above, under the impugned judgment.
10. ' I have heard the Advocate for the appellant, Assistant Advocate-General for the State and perused the record of this case very carefully.
11. ' The learned Advocate for the appellant has raised a legal objection about taking the cognizance by the District Judge by asserting that District Judge had no jurisdiction to take cognizance without a complaint in writing, as provided under section 195, Cr.P.C. Read with section 4(h), Cr.P.C. In his support, he has relied upon a Single Bench decision of this Court in .The case of Sulleman v. The State 2007 PCr.LJ 46 (Karachi): ' On merits he has stated that the prosecution did not lead any evidence to show that the power of attorney executed on 19-7-1992 by Ismail was a forged document; that mere production of said document by P.W.1 did not absolve the prosecution from proving the said document in accordance with law; that mere production of document is not enough to declare mere production of document as forged; that the trial Court did not consider the defence plea and the evidence of defence witness, who was the son of Ismail; that he stated that the alleged power of attorney was signed by his father; that his 'statement was not challenged by the prosecution in the cross- examination. He has further argued that provisions of 466, P.P.C. Are not attracted; that the statement of the appellant that he was attorney of Ismail is true and correct, as the prosecution has failed to prove that the power of attorney was forged. He has further stated that one person, who posed himself to be Ismail and appeared in the Court, was a fictitious person. The said stand was taken by the appellant before the District Judge and he was allowed to cross-examine him; that he categorically deposed that he was brought by one Mukhtar Ahmed Khanzada from Karachi and not by the appellant and that he did not know the appellant, therefore, charge against the appellant has not been proved.
12. ' Conversely, the learned Assistant Advocate-General has stated that the complaint in writing is not essential when the cognizance is taken under section 476, Cr.P.C. On merits he has admitted that except production of document through Record-keeper of District Court Nawabshah no other evidence was led by the prosecution before the trial Court; that from the documents, charge against the appellant has been proved. He has supported the impugned judgment.
13. ' As regards the legal objection that complaint in writing as provided under section 4(h), Cr.P.C. Is essential when the Court takes cognizance under section 476, Cr.P.C. Which has been supported by the judgment of Single Bench of this Court in the case of Sulleman (supra). In which after relying upon the cases of Abdul Nabi v. Syedul Mukhtar 2003 PCr.LJ 1242, Bachomal v. The State 1984 PCr.LJ 2797 (Karachi) and Shereen v. The State 2002 PCr.LJ 1427, it was observed as under:-- ' " Learned State counsel has conceded that there was no written complaint before the trial Court, in writing to take cognizance in the matter except show-cause notice issued on behalf of the Sessions Judge, which should be treated as complaint in writing. By virtue of the provisions of section 4(h) of Cr.P.C. Complaint means the allegation made orally or in writing from Magistrate; for taking action in the Court that some person whether known or unknown has committed an offence but it does not include the report of the Police Officer. In any view of the matter, show- cause notice issued by Sessions Judge, Dadu cannot be presumed to be a complaint in writing by the Inquiry Officer, upon which the cognizance was taken. The case-law cited at Bar, explicitly reveals that the complaint in writing was a mandatory requirement under the law to take cognizance which is missing in the present case."
14. ' For forming the above opinion, the learned Single Judge relied upon three decisions of High Court out of which two decisions are of this Court and one decision is of Peshawar Nigh Court. The facts of the case of Abdul Nabi (supra) are that in a civil suit a false affidavit was filed but a private person filed direct complaint against the accused for offences punishable under sections 191, 199, 200, 193, P.P.C. Read with section 34, P.P.C. Before Civil Judge and First Class Magistrate. In these circumstances, the provisions of section 195(1)(a)(b), Cr.P.C. Were examined and it was observed that cognizance of such offence cannot be taken by any Court except upon a complaint in writing of the Court where the said offence was committed or some other Court to which such Court is subordinate and the provisions of section 195, Cr.P.C. Cannot be invoked by private person. Thus, the above facts are quite different and distinguishable from the facts of the reported case.
15. ' The facts of Shereen's case (supra), which was of Peshawar High Court, were that the then S.S.P. At the instance of Public Prosecutor filed a complaint against the accused for committing an offence punishable under section 193, P.P.C. As the accused had resiled from his statement under section 164, Cr.P.C. The Court observed that the S.S.P. Could not file complaint but the trial Court should have filed the complaint. The view was taken after relying upon the authority of this Court in the case of Bachomal (supra). In the said authority, the learned Single Judge took the view that the complaint, as required under section 195, Cr.P.C. In writing, was required to have been filed for taking cognizance under section 193, P.P.C. While exercising powers under section 476, Cr.P.C.
16. ' Similar point was considered by the Honourable Supreme Court of Pakistan in the case of Irshad Ahmed v. State 1992 SCM R 1229 at page 1239 it has been observed as under:-- "The objection of the learned counsel for the appellant that a condition in clause (1)(b) of section 195, is that the trial of the offences mentioned therein cannot take place except as provided therein; namely, "on complaint in writing of such Court or of some other Court to which such Court is subordinate. The argument is obviously untenable. This condition cannot be relatable to the cognizance under section 476, Cr.P.C. Wherein the reference to section 195, Cr.P.C. Is only to the extent of lifting up the specification of the offences therein and does not extend to the conditions laid therein. This view is supported by the fact that the cognizance under section 476, Cr.P.C. Is by the same Court or in relation to the proceedings wherein the offence has been committed. The condition relating to submission of a complaint in section 195, Cr.P.C. Could not have been visualized in the manner suggested by the learned counsel; namely that the same Court should make a complaint of the offence to itself under section 476, Cr.P.C. Read with section 195, Cr.P.C.
17. This was never intended and that is why the reference under section 476 or section 195, Cr.P.C. Is in the simple language as follows:-- "When any offence referred to in section 195, subsection (1), clause (b) or clause (c), has been committed in or in relation to, a proceeding in any Civil Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII."
18. The view of the Honourable Supreme Court is clear and unambiguous that for taking cognizance under section 476, Cr.P.C. Complaint in writing, as provided under section 195 read with' section 4(h), Cr.P.C. Is not the requirement of law, as such, following the authoritative decision of the Honourable Supreme Court of Pakistan, I repel the arguments of the Advocate for the appellant.
19. As regards the merits of the case, suffice it to say that the prosecution except producing the power of attorney dated 19-7-1992, no evidence was led to show that the said power of attorney was forged or not executed by Ismail. The appellant from the very beginning took the plea that he was legally constituted attorney of Ismail. In his support, he produced D.W. Adam son of said Ismail, who specifically stated that his father had appointed the appellant as his attorney through document dated 19-7-1992 and the said document bore the signature of his father The above statement of D.W. Was not challenged by the prosecution in the cross-examination, as no question whatsoever was asked from him denying the above facts. It is well-settled principle of law that if any piece of evidence is not denied in the cross-examination then it is presumed to be accepted to be true by the other side.
20. ' The learned Assistant Advocate-General for the State has stated that one fictitious person was produced by appellant before the District Judge, therefore, this was sufficient to prove that the appellant was not given power of attorney. It is pertinent to point out that the statement of said Ismail was produced before the trial Court in which he categorically stated that he was produced by Mukhtar Ahmed Khanzada and not by the appellant. He further stated that 3/4 days before his appearance before the Court Mukhtar Ahmed Khanzada came to him and told him to appear before the Court and declare himself to be Ismail son of Jan Muhammad. In pursuance to the said request he appeared before the Court. Thus, stand taken by the State Counsel does not get support from the statement of Ismail, which was recorded by District Judge on 7-11-1991. When the learned District Judge came to know that the person, who had appeared before him was impersonating himself as Ismail son of Jan Muhammad, he should have been immediately dealt with in accordance with law but it appears that the learned District Judge did not take any action against him, allowed him to go and ultimately issued notice to the appellant.
21. As regards the filing of affidavit, the prosecution also failed to prove that he falsely stated in the affidavit that lie was attorney of Ismail son of Jan Muhammad. The prosecution could not prove that he was not the attorney of Ismail. A perusal of power of attorney dated 19-7-1992 shows that it was executed on 8-10-1992. The death certificate of Ismail shows that he died on 25-10-1992. Thus, before his death it appears that he executed the power of attorney in F favour of appellant.
22. ' After considering the material available on the record, I am of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, the appellant is entitled for benefit of doubt, which was accordingly given to him while passing the short order, dated 25-7-2007 by which I had allowed the appeal. These are the reasons for the said short order.