1. ' MAQBOOL AHMED AWAN, J.--This appeal is directed against the judgment dated 2-6-1998, whereby, the appellant was found guilty of the offence and therefore, convicted and sentenced to suffer R.I. For two years and also to pay a fine of Rs,2000, in default, the appellant shall suffer further R.I. For three months.
2. ' Precisely, the case of prosecution is that, the present accused Muhammad Younas and deceased accused were working as Clerk and Assistant Adminsitrative Officer, Orangi Township, KDA Karachi respectively, on or before 24-5-1981, during course of their services both the accused in collusion with each other issued certain bogus allotment orders and thereby transferred plots involved in the case in Sector 9 Orangi Township. The enquiry was conducted and it was found that the plots were originally marked by the KDA for club, but later on the said site was converted into High School by the KDA. In 1973, out of site 60 Cottages, Industries Plots admeasuring 120 sq. Yards each were arrested by the KDA but the same were cancelled in the year, 1976 vide KDA General Body Resolution No,441 item No,50 in its meeting, held on 23-10-1976 except plots Nos.19, 20 and 49 which were allotted and leased by the KDA. It was also revealed during the course of enquiry that in Section 9-K Orangi Township, Karachi, there were residential plots from Nos.1 to 792 only. The administrative control of the Orangi Township was being transferred from KDA to KMC W.e.f, 1-7- 1981 and taking advantage of the switch over the administrative control to KMC Syed Ather Hussain Naqvi, the deceased accused, the then Administrative Officer and accused Muhammad Younus, Junior Clerk, both employees of KDA Orangi Township, Karachi, in collusion with property broker induced the innocent people to purchase the KDA's plots in Orangi Township. On such inducement, P.W. Azizul Haq and others agreed to purchase the plots through property broker Mamu for Rs,1,400 excluding the KDA Official Charges, to be paid through Bank challans. Junior Clerk Muhammad Younus prepared KDA Challan No,897 of 1989 dated 24-5-1981 for Rs,1291 of 1990 in the name of Azizul Haq s/o Khalilullah for the factious plots No,834 sector 9-E measuring 120 sq. Yds. Orangi Township and similar challan except the change in challan No, and plot No, with different names of its purchaser, involved in all the afore-said cases were prepared by both the afore-said accused.
3. The challan, in all the cases were initially prepared by the accused Muhammad Younus and were finally approved and signed by the deceased accused S. Ather Hussain Naqvi, the then AAO. KDA.
4. The said challans were handed over by the purchasers through broker Mamu for payment in Bank.
5. The purchasers deposited the amount mentioned in the challans in Habib Bank, Pathan Colony, Branch, Karachi and handed over the said paid up challans to brother Mamu, who passed on the same to accused Muhammad Younus for issuance of the allotment orders. Since the plots No,834 and the other plots, the subject matter of the present cases did not exists in Sector 9-E Orangi Township, Karachi, both the accused in collusion with each other, substituted the number of plots, in paid up challans as plot No,7 sector 9-C-I-II and similarly, other plots Numbers were substituted in all the afore-said cases and issued allotment orders in all the cases. Both the accused, thereafter made false entries in the permanent allotment register on the KDA Orangi Township in the name of Azizul Haq and others against the plots, allotted to all the purchasers of the present cases and both the accused authenticated their entries by putting their initials and signatures, thereon. And thereafter, the allotment orders and the copy of challan were handed over to Azizul Haq and others who paid Rs,1,500 to broker Mamu for payment to KDA Officials as agreed between them. Both the afore-said officials, have, therefore, committed the offences punishable under sections 218/471 r/w section 5(2) of Act-II of 1947 and the cases as stated above were registered and after usual investigation and sanctions, challan was submitted against them in the Court of law.
6. ' The charge was framed on 30-11-1988, to which the appellant pleaded not guilty and claimed to be tried.
7. ' To prove the charge prosecution, examined, P.W.1 Shamsul Islam, P.W.2 Muhammad Usman, P.W.3 Ghulam Dastagir, P.W.4 Mirza Qadir Bux, P.W.5 S.Shakcel Ahmed, P.W.6 Mst. Amina Bibi, P.W.7 Abdul Haq, P.W.8 Mouladad Khan, P.W.9 Wahid Ali Mirza.
8. ' The Public Prosecutor appearing on behalf of the State, given up P.W. M.H.G. Khairi, P.W. Hafiz Mubarak Hussain. According to judgment of the Trial Court the Investigating Officer expired during the course of trial. Accordingly the learned Prosecutor closed the side of prosecution.
9. ' The accused under section 342, Cr.P.C. Was examined. In his statement he has admitted, that he was serving as a Junior Clerk in KDA Department. However he denied the case of prosecution that he dishonestly, prepared the false and forged documents viz. Challan so also the allotment orders of the plot, where were nonexistence. He further stated that no P.W. Has deposed against him. He has also stated that he has signed the challans at the instance of A & 0 Mr. Ather Hussain Naqvi. He claimed to be innocent and has not committed any offence. He did not examine himself on oath in terms of section 340(2), Cr.P.C. Not led any evidence in his defence.
10. ' The learned counsel appearing on behalf of the appellant has argued that the learned trial Court has not applied his judicial mind while awarding the conviction. He argued that the appellant was tried on separate number of cases, in those cases the complainants were different persons and the learned Trial Court has not even cared to examine the evidence of those cases and so also failed to give any finding in this behalf. The learned trial Court has also erred while not considering the facts that in all nine cases the complainant had not implicated the appellant, he therefore, prayed for acquittal of the appellant.
11. ' Mr. Assadullah. Baloch, the learned counsel representing the State, 'opposed the appeal and supported the judgment of learned trial Court.
12. ' I have heard the learned counsel for the parties and also perused the evidence.
13. ' It is an admitted fact that not a single witness has implicated the appellant in the commission of offence. The allegation against the appellant is that he had prepared the forged challan. In this respect P.W. Mouladad Khan, the handwriting expert was examined, who in his evidence has admitted having a no degree or diploma from any, recognized Institution or the University of passing handwriting expert's course as there was none except the police department. He in his evidence also exonerated the appellant. The P. Ws belonged to KDA namely Mirza Qadir Bux and Wahid Ali Mirza have also not implicated the appellant in the case. The prosecution even not has examined the broker Manu through whom the plots were sold out against bribe, not examined by the prosecution.
14. ' From the above evidence, I am of the considered view that the appellant being Junior Clerk was not competent to issue any allotment order or without the directions of his Superiors, cannot prepared the challan. The appellant being a Junior Clerk has been involved in order to save the real culprits involved in the commission of offence. The appellant in reply to the question in his statement under section 342, Cr.P.C., admitted that he was working as Juniors. Clerk in KDA and he had only prepared the challan under the orders of Admn: Officer Naqvi, who has not been examined by the prosecution.
15. ' In view of the above discussion, I arrived at proper conclusion that the prosecution has miserably failed to make out the case, 1, therefore, allow the appeal, set aside the conviction and sentence passed by the learned trial Court. The appellant is present on bail, his bail bond stands discharged.
16. ' The above are the reasons of my short order dated 5-6-2009.