' KHALID MEHMOOD, J.---Convict-appellant Khalid Mehmood was tried under sections 419/420/471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act by learned Special Judge, Anti- Corruption, (Provincial) Khyber Pakhtunkhwa (Camp at Abbottabad) and on conclusion of trial, vide impugned judgment dated 19-5-2011, he was convicted and sentenced to suffer five years under sections 419/420/471 and to pay a fine Of Rs,2,00,000 or in default thereof to further undergo one year and six months' S.I. On each count and also to pay a fine of Rs,2,00,000 Or in default, thereof to further undergo one year and six months' S.I. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was, however, extended to him.
2. Briefly stated facts of the prosecution case are that appellant while posted as Forest Guard Galliyat Division, Abbottabad, on 17-12-2007 secretly took out two Receipts bearing. Nos.3/43-G and 4/43-G from the challan book issued to Tariq Forester and by making wrong entries in the said receipt, received an amount of Rs,1,71,750 from two truck drivers as illegal gratification and so caused the release of loaded trucks with illegal cut timber from the custody of CIA Staff Abbottabad. The inquiry/investigation was conducted by ACE Staff and in the light thereof a case was registered.
3. After completion of investigation challan was put in court and trial commenced. Accused pleaded not guilty and claim trial. The prosecution examined six witnesses in order to prove its case. After close of prosecution evidence statement of accused was recorded under section 342, Cr.P.C., who did not wish to be examined on Oath under section 340(2), Cr.P.C. However, produced Muhammad Naheed D.W.1 and Muhammad Miskeen D.W.2 in defence.
4. At the conclusion of trial, after hearing the arguments of learned counsel for the parties with reference-to the material on file, the learned trial Judge convicted and sentenced the accused appellant, as noted above.
5. Learned counsel for appellant contended that prosecution has failed to prove its case against appellant beyond any shadow of doubt. It was argued that no independent witness has been produced by the prosecution in support of its case and P. W.2 categorically admitted during the course of his cross-examination that the receipts on the basis of which present case was registered are photo copies and original of the same are not available on judicial file. It was also argued that prosecution failed to bring on record for verification of the fact that whether the said receipts were issued by appellant or by the then DFO and who out of the two is responsible for issuing the impugned receipts, hence, it has created serious doubt regarding the involvement of the appellant. Learned counsel while concluding his arguments submitted that appellant is entitled to be acquitted by extending benefit of doubt, as a single doubt, in the case would be sufficient for the purpose of acquittal.
6. On the contrary, learned State counsel opposed the arguments .Advanced by learned counsel for appellant and contended that appellant being below the rank of Forester was not competent to compound forest offences pertaining to the illegally cut wood. The prosecution versi is supported by the P.Ws. He concluded that accused has committed heinous crime of moral turpitude and thereby has obtained illegal gratification. It was prayed that sentence awarded by the trial Court meets the ends of justice, which may be confirmed.
7. Arguments of learned counsel for the parties heard and record perused.
8. Admittedly the receipts allegedly used for compounding the forest offences pertaining to the illegally cut wood are photo copies and not the original. However, the prosecution has not been able to place on file the original receipts thereof. The prosecution has not bothered to send the receipts to hand writing expert for comparison and in order to ascertain who has scribed and signed the same. Appellant being Forest Guard was not competent to compound such an offence.
Tariq Javed A Forester at the relevant time was incharge of the block and receipt book was allegedly in his custody. It was for this reason that P.W.2 Muhammad Tariq, Divisional Forest Officer, Kohistan during the course of cross-examination stated that "both Mr. Tariq Javed and the present accused were responsible for the irreparable loss to the government". There appears no justification as to why the prosecution has left Tariq Javed and involved the appellant for the crime.
9. The prosecution has been failed to connect the appellant with the commission of offence and also failed to explain the following important legal and factual lacunas in the present case:--
(i) In the F.I.R. Nowhere is mentioned that occurrence had taken place on 17-12-2007;
(ii) P. W.5 Tariq Javed stated that the receipt books were stolen from his custody, but when the same were stolen, prosecution failed to brought on record any thing regarding stealing or misplacing of impugned receipt books. Moreover, no report before any forum has been lodged in this respect.
(iii) Appellant is serving as Forester in Nursery Forest nor in the Forest Galli Division and how he allegedly taken the receipts.
(iv) P. W.2 Muhammad Tariq has stated that Tariq Javed is also responsible for the offence, then why Tariq Javed has not booked as an accused when the receipt books were in his custody.
(v) The prosecution failed to explain the inordinate delay in lodging of F.I.R. For about six months and 19 days of the occurrence.
(vi) Tariq Javed had taken charge on 17-12-2007 on the very day of occurrence, then how P. W.5 came to know that receipt books were stolen from the office.
(vii) The alleged timber merchants D. W.1 and D.W.2 have not been made accused in the present case, who are culprits and beneficiaries of the alleged forged documents/receipts.
10. In the light of above stated glaring illegality and unfair investigation has created serious doubts in the present case, hence, the defence plea that appellant has been made escape goat to save the real culprit(s) cannot be ruled out. Appellant has also produced Muhammad Naved and Muhammad Miskeen as D.Ws. 1 and 2, who clearly stated that they were transporting illegal timber and one of the forest officials had produced the impugned receipts. Said D.Ws. Did not produce the original receipts, but on the basis of forged receipts, they succeeded for taking away the impound illicit timber in collusion with some forests official(s) but the real culprit(s) and illegal beneficiary(ies) has been escaped from the clutches of law. D.Ws. Naved and Muhammad Miskeen have clearly confessed their guilt before the trial Court, but trial Court has ignored to book into the clutches of law the said real culprits and beneficiaries of illicit act. During the course of arguments, it was vehemently brought into the notice of this Court, hence, court has taken the judicial notice of this unique case, which has caused loss to the Government exchequer, and cannot be escaped from the process of due course of law. Now it is high time to bring all such like culprits to face the trial before the court of law. This Court cannot skip from the confession of the guilt of said D.Ws.
During trial, who are the beneficiaries of illegal receipts. Courts cannot shut their eyes from offence, which has been confessed in the open court during the trial. Law finds its own way to catch-hold of timber mafia and their colleagues.
11. In this context, it would be advantageous to reproduce section 194, Cr.P.C. Which is as under:-- "
194. Cognizance of offences by High Court. The High Court may take cognizance of any offence.
12. The apex Court in case reported as "Dr. Muhammad Afzal and others v. The State (2001 SCM R 1615) has held as under:-- "Fabricating false evidence and issuing or signing false certificate---Jurisdiction of High Court to take cognizance directly of an offence falling under Pakistan Penal Code---Scope and extent--- Judicial proceedings pending before High Court---High Court on the basis of documentary evidence had gained sufficient knowledge to prima facie conclude that a cognizable offence had been committed during pendency of judicial proceedings before it---Where in special circumstances, an offence falling with the scope of Pakistan Penal Code was committed during the judicial proceedings pending before the High Court, there would be no bar on the High Court to take cognizance wider S.194, Cr. P. C. Directly and proceed to try accused under Chap. XXII-A, Cr.
P.C. High Court, at the same time, instead of trying the accused for commission Of the offence committed during pendency of judicial proceedings, itself may send the case to the concerned investigating agency having jurisdiction for further action according to law---Where documentary evidence in such like situation was available on record the High Court rightly decided to proceed with the matter under S.194, Cr. P. C., by directing taking cognizance of the offence"
13. In the facts and 'circumstances of the case the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. The appellant is behind the bars since the date of D announcement of impugned conviction order dated 19-5-2011.
14. It has been found that investigation officer has not conducted fair investigation and real culprit(s), the timber traffickers/the real beneficiaries played the game by producing fictitious receipts have directed to send a copy of this judgment to Inspector-General of Police illegally been escaped from the clutches of law. Therefore, office is and Director Anti-Corruption of Khyber Pakhtunkhwa for enquiry against the I.O. Of the present case, who did not book the real culprit and beneficiary of the whole game and caused loss to Government exchequer. Appellant has been held responsible on the basis of departmental inquiry, which has not been subjected in the present case, therefore, finding of this judgment has no bearing on the said departmental inquiry.
15. Consequently, this appeal is allowed. Impugned conviction and sentence of appellant recorded by the trial court is set aside and he is acquitted of the charges. He shall be set free forthwith if not required in any other case.