Lieutenant Colonel Ghulam Idrees, petitioner, was owner of agricultural land measuring 176 kanals 6 marlas bearing Khewat Nos, 2 to 3, 4/6, 8/10, 13/14 13/15, 14/16, 15/17, 22/24, 24/26 and 450/852 located in Revenue Estate of Kahna Bajjar, District Rawalpindi, who alienated the same in favour of his co-villagers; namely Abdul Basit and Muneeb Amjad sons of Amjad Mahmood by means of Mutation No, 870 dated 22.10.2004, genuineness of which is not in dispute. The petitioner got entered and sanctioned the above said mutation. On 6.01.2006 Khuram Jalil, respondent, got registered a case FIR No, 21 under Sections 420/468/471 PPC with Police Station Rawaat, District Rawalpindi, against the petitioner, with an allegation, in brief, that he on behalf of his mother-in- law Mst. Hakam Bibi executed an agreement to sell in his (complainant) favour with the claim that she was also an owner of agricultural land bearing Khewat Nos, 450/852 etc. of said revenue estate and received Rs, 40,00,000/- as earnest money. The complainant further alleged that Mutation No, 871 was also got entered by the petitioner in the name of his mother-in-law in favour of aforementioned Abdul Basit and Muneeb Ahmad and that latter on it revealed that Mst. Hakim Bibi was not owner of the disputed land and the petitioner through fraud and misrepresentation deprived Khuram Jaleel, respondent/complainant of above said amount. The complainant produced photo static copies of the mutation and the agreement in-question before the Investigating Officer. The petitioner/accused joined investigation and dismissed the allegation with the plea that as a matter of fact that so called vendees and the complainant forged and fabricated his signatures on the above said agreement and mutation.
2. The respondent/complainant had also made complaints against serving Ltd. Col. Ghulam Idrees before his High-ups, which were also inquired into. The Military Intelligence got compared the disputed signatures on the questioned documents with admitted ones from the officer of Director Technical. Federal Investigating Agency (HQ) Islamabad. The Examiner of the questioned documents opined that the questioned signatures were different from admitted ones. On conclusion of investigation, the Investigating Officer recommended cancellation of the case and laid negative final report before the Area Magistrate, who did not agree with the police investigation and took cognizance of the offence against the petitioner on the following grounds:-
(i) Ghulam Idrees, accused, is nominated in the FIR.
(ii) Ghulam Idrees, accused, did not co-operate for comparison of his admitted signatures with the disputed one on Iqrar Nama dated 19.10.2004.
(iii) Opinion of the Examiner of FIA, Islamabad was not final.
(iv) It would be determined by the trial Court as to whether or not Ghulam Idrees, petitioner, was present before the Revenue Officer at the relevant time in connection with Mutation No, 871.
3. The petitioner/accused has challenged legality of above said order of the Area Magistrate by invoking constitutional jurisdiction and inherent powers of this Court with the plea that there was no legal evidence on the file on the basis of which cognizance of the alleged offence could have been taken by the Magistrate.
4. On the other hand, learned counsel for complainant argued that opinion of Investigator favourable to the petitioner/accused was rightly ignored and disbelieved by the Trial Magistrate.
5. I have heard both the sides and perused the record very carefully. Before adverting to merits of the controversy, I would say that u/S. 190(1) Cr.P.C. the trial Magistrate takes cognizance of the offence and not of the offender. Cognizance means application of judicial mind by the trial Court with respect to facts and material laid before it in the form of positive or negative final report under Section 173 Cr.P.C. A bare perused of Section 190(1) of the Code of Criminal Procedure, 1898 would show that a Magistrate takes Cognizance of an offence; (a) upon receiving a complaint on facts, Which constitutes an offence, (b) upon a report in writing of such facts made by any police officer;
(c) upon an information received from any person other than the police officer or upon his knowledge or suspicion that such offence has been committed. It was finally settled by the Apex Court in case Falak Sher another us. State (PLD 1967 SC 425) that an action of the trial Court taking cognizance of an offence on a negative report by the Investigating Officer, is covered by clause (b) of Section 190(1) of the Criminal Procedure Code, 1898. Now I propose to examine the material available on the file in order to ascertain as to whether or not the facts valid before the Magistrate through negative final report constituted any cognizable offence against the petitioner/accused.
This is a case of version and counter version. The respondent/complainant made an allegation that Ghulam Idrees, petitioner, attested the Mutation No, 871 and the agreement to sell on behalf of his mother-in-law Mst. Hakam Bibi despite knowing that she was not an owner of the land in dispute. On the other hand, the petitioner put forward a specific and definite stance that he did not sign the above said two documents and as a matter of fact his signatures had been forged and fabricated. In other words the only question laid before the Investigator and the trial Magistrate was as to whether Ghulam Idrees, petitioner, had signed the disputed documents or his signatures had been forged thereon. The Investigator disbelieved the complainant's version after coming to the conclusion on the basis of collected material that Ghulam Idrees, petitioner, had not signed the disputed documents and that there was no similarity between the disputed and admitted signatures. The same controversy had been placed before the Area Magistrate in the shape of cancellation/negative report under Section 173 Cr.P.C. I have mentioned in the preceding lines that the Area Magistrate took cognizance of the offence on negative report under clause (b) to Section 190(1) Cr.P.C. This is a matter of record that the respondent/complainant failed to produce the original agreement to sell allegedly signed by the petitioner before the Investigator as well as before the trial Magistrate. He attempted to explain that the original agreement had been returned to the petitioner. This explanation or contention by the respondent/complainant is not worthy of credence on any ground. The mutation had been cancelled by the Revenue Officer' as Mst. Hakam Bibi was not owner of the land in-question. There is no answer to the question as to why the respondent/complainant returned the original agreement to the petitioner when as per his own version the petitioner had failed to honour his commitment. Only a photo static copy of the disputed agreement to sell had been produced before the Investigator which had rightly been ignored and rejected by the Investigating Agency. Under the law, onus to prove that the questioned documents had been signed by Ghulam Idrees, petitioner, was on the respondent/complainant.
Article 78 of Qanun-e-Shahadat Order, 1984 clearly lays down that if a document is alleged to be signed by any person, the signature of the questioned document as is alleged to be in that person's had writing must be proved to be in his hand writing. Mere filing or producing photo static copy of such document before the Court or the Investigating Agency is not enough to make the document a part of record as it will require authentication of the signature of its executant or proof of its genuineness. Unless the agreement in-question is proved in terms of Article 78 of the Order it cannot be read in evidence. This Rule is subject to the only exception that any such document produced by a party may be looked in to without its formal proof at the instance of rival party. In the case in hand the questioned agreement to sell had not been proved before the Investigator as well as before the Area Magistrate nor the rival party i,e, the petitioner made any request that the same might be looked into without its formal proof, therefore, it should have been excluded from consideration by the Area Magistrate.
6. In the case in hand the Military Intelligence got compared the disputed signatures on the above said photocopy of agreement with the admitted ones of the petitioner and report of the Examiner was adverse to the cause of the respondent/complainant. The Area Magistrate opted to ignore and discard the report of hand writing expert, but failed to have recourse to the procedure prescribed by Article 84 of the Qanun-e-Shahadat Order, which is reproduced below for ready reference: "84. Comparison of signature, writing or seal with others admitted or proved. (1) in order to ascertain whether a signature, writing or seal is that of the person by whom it purpose to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
(2) The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person."
It is manifest from a bare perusal of the above said Article that the trial Court has ample powers to compare itself the disputed signatures. At least, two such documents i,e, Mutation No, 870 and National Identity Card of the petitioner were available on the file containing his admitted signatures for comparison with disputed signatures. In the circumstances, the procedure of comparison laid down by Article 84 ibid should have been resorted to by the learned trial Magistrate, but I am pained to say that he failed to discharge the duty cast on him by law.
7. I am not unmindful of the fact that in exercise of Constitutional Jurisdiction this Court is not supposed to examine and analyze the material on the file with the yardstick of trial Court. However, in the light of peculiar circumstances noted above a particularly inaction on the part of trial Magistrate has provided as basis to have recourse to the mode laid down by Article 84 ibid. I have myself compared the admitted signatures of the petitioner on the Mutation No, 870 and his National Identity Card (original seen and returned) with the disputed signatures on photo static copies of the agreement to sell and the Mutation No, 871 in the open Court in presence of both the sides. It is open to naked eye that some one unsuccessfully attempted to forge signatures of the petitioner on the mutation and the agreement. There is no similarity, whatsoever, between the disputed and admitted signatures as they are significantly different in form and design. The disputed signatures are badly slow drawn and the result of hesitation on the part of scribe. After having compared the disputed signatures with the admitted ones, I would say without any fear of contradiction that Lt. Col. Ghulam Idrees, petitioner, has been wronged.
8. Mst. Hakam Bibi, mother-in-law of the petitioner, was/is not an owner of the land mentioned in Mutation No, 871. Munir Ahmad, the then Revenue Patwari of Revenue Estate of Kahna Bajaar entered the said mutation. A serious question, which requires consideration, is as to how the Revenue Patwari entered the said mutation in the name of Mst. Hakam Bibi, when she was not an owner of an inch of land. Needless to add that a mutation of sale is entered by the Revenue Patwari on the basis of entry of ownership in "Jamabandi Zair-i-Kar". The Revenue Officer cancelled the mutation with an observation that Mst. Hakam Bibi was not owner of the land, but without taking any action against Munir Ahmad, Revenue Patwari who had entered the mutation against the revenue record. It appears that the complainant party won the favour of Munir Ahmad Patwari, who entered Mutation No, 871 against the entries of record of rights. In the light of above noted state of record I have no doubt in my mind that Lt. Col. Ghulam Idrees was prosecuted on the charge of forgery and cheating by those who forged his signatures on the questioned documents. He was forced to stand in the dock for an offence which he had not committed. The impugned order by the Magistrate being arbitrary, perverse, illegal, without lawful authority and against the record cannot be and should not be allowed to hold the field.
9. Pursuant to the above discussion this constitutional petition is accepted, impugned order of the learned Area Magistrate is set aside and the proceedings initiated against the petitioner are quashed being abuse of process of the Court.