' MAZHAR ALAM KHAN MIANKHEL, J.---This judgment will dispose of Criminal Appeal No,99 of 2011, filed by Nazir Ahmad and Miraj Ahmad against the judgment dated 5-10-2011 of learned Special Judge, Anti-Corruption (Provincial) Khyber Pakhtunkhwa, in case F.I.R. No,2 dated 21-3-2007, Police Station, Anti-Corruption Establishment, District Chitral, registered under section 409/465/470, P.P.C.
Read with section 5(2), P.C. Act, whereby appellant Nazir Ahmad was convicted under section 465, P.P.C. And sentenced to five years rigorous imprisonment with a fine of Rs,1,00,000 or in default thereof to further undergo one year simple imprisonment; further convicted under section 470, P.P.C. And sentenced to five years rigorous imprisonment with a fine of Rs,1,00,000 or in default thereof to further undergo one year's simple imprisonment. Section 409, P.P.C. And 5(2) P.C. Act were redundant. Similarly, appellant Miraj Ahmad was convicted under section 409, P.P.C. And sentenced to five years' rigorous imprisonment with a fine of Rs,1,00,000 or in default thereof to further undergo one year simple imprisonment; further convicted under section 465, P.P.C. And sentenced to two years rigorous imprisonment with a fine of Rs,50,000 or in default thereof to further undergo six months simple imprisonment; further convicted under section 470, P.P.C. And sentenced to two years rigorous imprisonment with a fine of Rs,50,000 or in default thereof to further undergo six months simple imprisonment; further convicted under section 5(2), P.C. Act and sentenced to three years rigorous imprisonment with a fine of Rs,1,00,000 or in default thereof to further undergo six months simple imprisonment. Benefit of section 382-B, Cr.P.C. Was extended to both the appellants. All the sentences were ordered to run concurrently.
2. The brief facts of the case are that Shaukat Zaman and Muhammad Nazir Khan, moved a complaint, Exh.P.W.1/1, to the Circle Officer, Anti-Corruption, Chitral, for inquiry regarding forgery in revenue record pertaining to file No,163 page No,36 and, file No,151 page No,12 thereby depriving them of their valuable property. On the said application, inquiry was conducted which finally culminated into F.I.R. Mentioned above, as appellants were held responsible for the same.
3. After completion of investigation, complete challan was submitted to Special Judge, Anti- Corruption, Khyber Pakhtunkhwa, Peshawar.
4. The prosecution to prove its case, produced eleven witnesses..
' P.W.1 and P.W.2 were the complainants and signatories of their application, Exh. P. W.1 /1 . Both the complainants supported their versions given in the application and alleged that both the appellants with their connivance and manipulation replaced the original documents with the forged one on page No,36 of file No, 163 and page 12 of file No,151 and thereby committed the offence of forgery.
' P.W.3 was Aziz-ur-Rehman, Naib Qasid D.D.O.R, Chitral. His statement was that accused Nazir used to visit his co-accused Miraj Ahmad in his office in Record Room and used to sit together.
' P.W.4 was Siraj Ahmad, Chowkidar of Judicial Council, Chitral, who deposed that he had seen accused Miraj Ahmad and Nazir Ahmad while sitting together in the office of Miraj Ahmad, Record Keeper, after office timings.
' P.W.5 was Jalal-ud-Din, an employee of N. G.O, who deposed that accused Miraj Ahmad occasionally used to visit Judicial Council and sit with accused Nazir Ahmad.
' P.W.6 was Abdul Wakeel Khan, Ex-Record Keeper, who deposed that he, from 1979 to 1986, was posted as Record Keeper. The benefit, the prosecution is deriving from his statement is that except the disputed document, copy of which is Exh.P.W.6/1, no such .Writing like {{URDU TEXT}}was made by the Ex-ruler.
' P.W.7 - was Muhammad Haider Ali Khan, retired Settlement Officer, who conducted inquiry vide his report, copy Exh.P.W.7/1 at the direction of DOR and submitted his detailed report to D.O.R, Chitral, vide No,121 dated 30-3-2006.
' P.W.8 was Ali Rehman Khan, Circle Officer Dir Lower, who submitted complete challan Exh.P.W.8/1.
' P.W.9 was Noor Rehman F.C. Police Station Anti-Corruption Establishment. He vide Exh.P.W.9/1, took into possession the files of the documents in question. Both the files were produced to him by Miraj Ahmad and he signed the memo.
' P.W.10 was Javed Khan, Circle Officer, Anti-Corruption Establishment, who deposed that an application Exh.P.W.'10/1, for reopening of inquiry was submitted by Muhammad Nazir and Shaukat Zaman to Director A.C.E. Which was marked to. Him. Another letter Exh.P.W.10/2, was addressed to him by Special Judge, Anti-Corruption. During the inquiry, he suggested that an inquiry may be reopened by the Circle Officer. He verified the signature on his report.
' P.W.11 was Muhammad Sabir, retired D.S.P., who deposed that after approval and sanction from the concerned authority, he conducted second inquiry regarding tampering in the record of Judicial Council. Vide memo Exh.P.W.9/1 and Exh.P.W.9/2, he took into possession the documents of file Nos.163 and 151 and sent the copies of forged documents for expert opinion, vide Exh.P.W.11/3. The report/opinion of expert was Exh.P.W.11/4. Then he requested for legal opinion consisting of three sheets vide Exh.P.W.11/5. Vide Exh.P.W.11/6, the Assistant Director (Legal) filed the inquiry. The complainant moved another application, Exh.P.W.10/1, to Director A.C.E. The Special Judge, Anti- Corruption, vide Exh.P.W.10/2, addressed to Director A.C.E, who directed Javed Khan, Circle Officer, A.C.E., Peshawar, for fair and thorough probe into the matter. The Circle Officer, A.C.E, conducted inquiry, vide Exh.P.W.10/3, and on the same report, Assistant Director (Legal-1) directed this witness to submit reply and prepare final report. He opined for registration of criminal case against appellants vide his report Exh.P.W.11/7, which was approved by the Director A.C.E. Vide Exh.P.W.11/8.
The permission for registration of case was accorded by the Director A.C.E. Vide Exh.P.W.11/9, on the basis of which F.I.R. Exh.P.Wl1/10 was registered and the same correctly bears his signature. He investigated the case, prepared the brief Exh.P.W.l1/11, and submitted the same to ADC. He. Also served questionnaire, Exh.P.W.11/12, upon Miraj Ahmad. Reply to the same was Exh.P.W.l1/13. His request for arrest of the accused was "Exh.P.W.11/14. The permission for the same was Exh.P.W.11/15.
Vide application Exh.P.W.11/16, he applied for police custody. On 21-5-2007 the Judicial Magistrate, vide Exh.P.W.11/17, sent the accused to judicial lockup. He recorded statements under sections 161 and 164, Cr.P.C. Of P.Ws. As well as accused. He recorded statement, Exh.P.W.11/18, of Aziz-ur- Rehman under section 164, Cr.P.C. The original record of file Nos.163 and 151 are Ex.P-1 and Exh.P-2.
After completion of investigation, he submitted the case file to. Ali Rehman. Accused also recorded their statements under section 342, Cr.P.C.
5. The learned trial Court, after hearing counsel for the parties, vide impugned judgment dated 5- 10-2011, convicted the appellants, as stated above. Hence, the present appeal.
6. Learned counsel for appellants submitted that the appellants are innocent and have falsely been implicated in the case; that the prosecution has totally failed to prove its case against the appellants but the trial court by misappreciating the evidence on the record has wrongly convicted and sentenced the appellants. They next contended that no case of forgery was ever proved against the appellants and the findings of the trial Court are on mere presumption as no direct or circumstantial evidence was led to prove the case against the appellants. They requested for acceptance of their appeal by acquitting the appellants.
' As against that the learned A.A.-G. Assisted by learned counsel for the complainant submitted that the case against the appellants has fully been established through a cogent and reliable evidence which is in the shape documentary evidence and the trial court after properly appreciating the evidence on record has rightly convicted and sentenced the appellants and requested for dismissal of their appeal.
7. Learned counsel for the parties and learned A.A.-G. For the State were heard and record of the case was perused.
8. Perusal of the record would reveal that the complainants of the case i,e,, P.W.1 and P.W.2 alleged through their application, initially addressed to District Officer, Revenue and Estate Collector, Chitral; that the appellant Nazir Ahmad with the connivance and collaboration of appellant Miraj Ahmad managed to replace the two original documents from files Nos.151 and 163 by placing two forged documents at pages 12 and 36 of the above two files respectively.
' The material evidence brought on record is in the shape of P.W.1 and P.W.2, the complainants of the case, P.W.6 Abdul Wakeel and Muhammad Haidar Ali Khan, the Settlement Officer, P.W.7, who conducted inquiry on the application of complainants at the direction of District Officer Revenue.
The perusal of the above said evidence would confirm the fact that not a single witness of the prosecution has stated that they were the appellants, who managed to replace the original disputed documents from the files by placing thereon the two forged documents. The stance, of P.W.6 is that the Ex-Ruler of Chitral never used to write "Lf{{URDU TEXT}}' ' as appearing on Exh.P.W.6/1. These are the words which have been alleged by the prosecution and the complainants that this was a forged document which has been prepared by the appellants and replaced with the original at page 36 on file No,163. Perusal of this document itself reveals that this was not the original document and appears to be a Photostat copy of the hand written copy prepared by any official, so, the above referred words were written as the signatures could not be copied. The witness also admitted that he has not noticed that the original of the said document was removed by the appellants by placing on file, Exh.P.W.6/1. The other important witness is Muhammad Haidar Ali Khan, the Settlement Officer, who recorded the statement as P.W.7, conducted inquiry as DDOR and his report in this regard is Exh.P.W.7/1. The witness in clear and unequivocal terms has admitted that he in his report has not indicated as to who was the person responsible for making the forgery and replacing the original with that of the disputed documents.
He also admitted that his findings were based on presumption and yet another opinion with regard to his findings can be made.
9. It is strange enough to observe that initially application was made to District Collector, who directed for an inquiry which was conducted on his direction by P.W.7, who also submitted his report to the Collector but the Collector never gave his findings about the authenticity or otherwise regarding the documents as well as the validity of the report of the Enquiry Officer. The complainants then instead of waiting for the final verdict of the Collector approached the Anti- Corruption Establishment by forwarding the same application and the Establishment further inquired into the matter by holding the appellants responsible for making forgery and replacing the original documents with that of the disputed one. The entire evidence produced by the Anti- Corruption Establishment is deficient to establish the involvement of appellants for the offence of forgery.
10. It has further been alleged by the complainants that the above said forged documents were used by the appellants in Civil Suit by attempting to deprive them from their rights in the property but there is nothing on the record whether such documents were produced in evidence in civil suit and they suffered on account of these documents. The record of the case is also silent that by whom and by which authority the said documents were declared to have been tampered or forged one. The original or photo copies of the original were never brought on the record to establish that the alleged documents were forged one. Had there been any opinion by the District Collector on the basis of the inquiry report that the documents were forged then according to law it way his duty and responsibility to have lodged the complaint against the responsible person under section 195(1)(c) of Criminal Procedure. Code but there is nothing on the record to establish the compliance of law. Similarly, had there been the verdict of competent civil court with regard to the forgery or using the forged documents to get unlawful benefit from them then once again it was the responsibility and duty of the Presiding Officer of the Civil Court to have filed a complaint under the above said provision of Criminal Procedure Code. The Anti-Corruption Establishment, in absence of any original document, cannot declare the copy of any document to be a forged one.
11. It was also argued that The trial of the appellant No,2 was against the law as he being a Government Servant, no sanction for prosecution was obtained as required under section 197, Cr.P.C. Or section 6(2) of Pakistan Criminal Law Amendment Act (XL of 1958). The learned A.A.-G. On first date of hearing on 20-2-2012 sought some time to lay hand an such sanction. Today, he produced a fresh sanction in this regard dated 6-3-2012. The law on the subject by now is settled that once the above provisions of law were challenged before the Federal Shariat Court being against injunction of Islam through two separate petitions which were allowed and the above sections of law were declared against mandates of Quran and Sunnah. Appeal there against of the Federation was dismissed by extending time for bringing changes in the law till 30-6-1992 failing which these provisions of law will cease to have effect. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, PLD 1992 SC
72. Then review petitions were filed by the Federation against the above said judgment but were dismissed on 11-10-2004 by further extending the time for bringing changes in the law upto 31-3- 2005 failing which these provisions of law will cease to have effect. Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad v.
Zafar Awan, PLD 2005 SC 19. Both the parties failed to refer to any changes made in the law within the given time by the Government, which means that the above said sections of law has ceased to have effect and are no more in the field. So, the question of sanction of Government in the circumstances is immaterial.
The findings of conviction of sentence recorded by the trial Court, in view of the above discussion, cannot be held to have been made on the basis of correct appreciation of evidence and as such the same cannot be maintained and upheld. So, in this view of the matter, by allowing this appeal, the conviction and sentence recorded by the trial Court is hereby set aside and the appellants are hereby acquitted of the charge. The accused/appellants are in custody and they be set free at once if they are not required in any other case. These were the reasons of short order of the even date.