' HABIB-UR-REHMAN SHAIKH, J.---The appellant calls in question, the Judgment dated 1-3-2011 passed by the learned Ist Additional Sessions Judge Hyderabad in Sessions Case No,307 of 2008, whereby appellant Sabir Ali was convicted under section 465, P.P.C. To suffer R.I. For 2 years, and under section 467, P.P.C. To suffer R.I. For 10 years. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was extended to the appellant. He was taken into custody to serve out the sentence.
2. The facts of the prosecution case in brief are that, on 31-5-2008 complainant ASI Muhammad Hashim lodged report alleging therein that accused' Sabir Ali came to him and produced Order No,1908-14 dated 8-5-2008, whereby he was shown transferred from District Jacobabad to District Matiari. On verification, Office Superintendent Abdul Aziz Memon and Sheet Clerk Ali Dost Zardari disclosed that such order was received through post, however, same is suspicious, as such they want its verification. After verification, it transpired that Sabir Ali was not police constable and his order was false/b.Ogus. On inquiry, accused Sabir Ali disclosed that Roshan Kato after taking money handed him said order. Accused Sabir Ali along with accused Roshan Kato prepared false/bogus orders with fake stamps, in order to get salaries by fraud and misrepresentation.
3. After completing the formalities during investigation, the police submitted the challan, before trial Court and formal charge was framed and the prosecution to prove its case, examined six witnesses Thereafter statement of accused under section 342, Cr.P.C. Was recorded, in which he denied the charge and pleaded innocence, however, neither he examined himself on oath nor led any evidence in his defence.
4. The learned trial Court after 'hearing the parties and appraising the evidence, convicted the appellant as mentioned above.
5. Learned counsel for the appellant contended that conviction awarded to the appellant is opposed to law, facts and equity. He further submitted that alleged original fake order was not produced in evidence and its Photostat copy was produced, the same cannot be considered as evidence; complainant alleged in the F.I.R. As well as evidence that appellant/accused produced the copy of order while mashir of recovery does not support him and stated that nothing was recovered from the possession of appellant in his presence. Learned counsel further argued that allegedly order was also received by the complainant party through post but neither postman had been examined nor envelope had been produced in evidence. According to learned counsel, there are major contradictions in between the evidence of the prosecution witnesses. Learned counsel further argued that statement of accused under section 342, Cr.P.C. Does not bear the signature of the appellant, therefore same creates doubt. Learned counsel argued that in view of the above mentioned contradictions and discrepancies case of prosecution is doubtful and the appellant is entitled for acquittal. In support of his arguments, learned counsel relied upon case of The State v.
Nisar Ahmed Khoro and others (PLD 1998 Karachi 86), Muhammad Achar Machi v. The State (2001 PCr.LJ 1762), Nazir Ahmed and others v. The State and others (PLD 2005 Karachi 18).
6. On the other hand, learned Assistant Prosecutor-General has supported the impugned judgment and argued that the prosecution has proved its case beyond shadow of doubt, therefore, same requires no interference by this court.
7. I have heard the learned counsel for the appellant as well as learned Assistant Prosecutor- General Sindh and have gone through the case file in hand.
8. The appellant was arrested on 31-5-2008 when the F.I.R. Had been lodged, which reveals that the incident had taken place on the same day at about 1730 hours and the time of F.I.R. Is 1800 hours, within 1/2 hour the complainant inquired about the transfer order which was said to be produced by the appellant to the complainant. The F.I.R. Reveals that fraud had been committed by the appellant. F.I.R. Further reveals that accused admitted his guilt before the complainant and disclosed that his cousin Bashir son of Daim Banglani and his friend Roshan Kato gave him the said order after receiving the amount. The record further reveals that the charge was framed on 24-2- 2009, which reads as under:-- "CHARGE ' I, Saleem Raza Baloch VIIth Additional Sessions Judge, Hyderabad do hereby charge you:- ' Sabir Ali son of Ghulam Rasool As follows:- ' That, you above named accused along with absconding accused Roshan son of unknown prepared a forged order bearing No,1908-14/8-5-2008 with fake stamps like police order. ' showing yourself as police constable with intention to get salaries by fraud, therefore, you above named accused along with absconding accused Roshan son of unknown, committed forgery, offences punishable under sections 465 and 467, P.P.C. Within the cognizance of this court".
' And I hereby direct that you be tried by this court on the aforesaid charges. Sd/- VIIth Additional Sessions Judge, Hyderabad The above charge reveals that the present appellant is also involved in the preparation of the fake order along with co-accused Roshan Kato but contents of reveals that on 31-5-2008 he brought the fake transfer order before the complainant and admitted before him and the complainant efficiently inquired about the fake order as a fraudulent and the appellant without any coercion or arrest admitted his guilt before the complainant and he lodged the F.I.R. Within 30 minutes, which creates doubt. Further the deposition of the complainant reveals that he was Line Officer. On the day of lodging F.I.R. The appellant appeared before him and brought the transfer order and he took the copy of said order to office Superintendent DPO Matiari and sheet clerk Dost Muhammad Zardari and informed them regarding the order. In written they informed him that such order has been received by them but those are suspicious so let the said Sabir be kept waiting, in the meantime they will confirm the said order, hence the sheet clerk (P.W.4) inquired through telephone from DPO office Jacobabad sheet branch, wherefrom sheet clerk informed him that police constable bearing Buckle No,3915 has not been transferred from Jacobabad to Matiari. They further informed him that the constable bearing Buckle No,2915 is not Sabir Ali but it is someone else. Further he supported the version of the F.I.R. In the cross-examination he admitted that he spent about 20 minutes in making inquires regarding the geniuness of the order produced by the appellant. He denied about the arrest of the appellant/accused at Matiari while he was going to Moro and he also denied about the enmity with the appellant/accused. P.W.3 Abdul Aziz deposed that "prior to this incident on 19-5-2008 I received LPC along with relieving letter in the name of accused Sabir Ali by post, showed that PC Sabir Ali is relieved from the official duty from Jacobabad District to Police Line Matiari. In the relieving letter it was mentioned that service book of PC Sabir Ali is also being sent to your office. Service book was not available in envelope, wherein relieving letter and LPC was received by us, hence We became suspicious that document received by us might be fake". In the cross-examination he admitted that within 1/2 hour they completed inquiry regarding accused and authenticity of the transfer order.
9. P.W.4 Ali Dost deposed that on 30-5-2008 he was performing his duties as sheet clerk and he was called by the Superintendent and disclosed that he had received a letter by post from DPO office Jacobabad along with LPC of Sabir Ali Banglani. He further deposed that he made contact with sheet clerk of DPO office Jacobabad through telephone and inquired from him about the genuineness of the letter received by the office superintendent DPO office Matiari. The appellant Sabir Ali approached through Line Officer DPO office Matiari for further directions. They informed DPO Matiari regarding matter, who directed them to lodge the F.I.R. Against accused Sabir Ali. He admitted in cross-examination that on same date when letter received, he made telephonic contact with sheet clerk of DPO. Office Jacebabad. He further admitted in the cross-examination that when accused was brought to him by the Line officer at that time, he was not having his bag and baggage. He also admitted that he has not seen envelope in which the said letter was received by the office Superintendent DPO Matiari. He also admitted in cross-examination that on next date at about 5/6.00 p.m. Line officer lodged F.I.R. Against the present appellant. The deposition of the witness No,5 Punhal Khan reveals that "I cannot say that Exh.9/A i.e, fake order was produced and secured in my presence. Cash Rs,800 present in court is same which were recovered from front pocket of accused Sabir Ali". P.W.6 Muhammad Ashfaque deposed that on 31- 5-2008 he was posted as SIO at P.S. Matiari. He received the F.I.R., mashirnama, accused and case property, visited the place of incident. On 4-6-2008 DPO Matiari issued a letter for conducting the inquiry to SPO Uderolal in respect of fake order. In the cross-examination, he deposed that It is correct to suggest that during investigation I have not received any paper or document containing the signature of accused. It is correct to suggest that I have not recovered police uniform or bed sheets along with pillow from accused".
10. Thereafter the trial Court examined the accused under section 342, Cr.P.C. In his statement, the appellant denied all the allegations levelled by the prosecution, which reveals that the trial Court had not bothered to get the signature of appellant on his statement under section 342, Cr.P.C., which is mandatory requirement of said section and without considering the contradictions of the Prosecution witnesses and without examining the material witness/expert evidence from the I.G.P/PPO office or from the office of DPO Jacobabad nor mentioned during framing the charge regarding production of the alleged fake transfer order to the complainant neither put the said question while recording the statement of appellant/accused under section 342, Cr.P.C. It further reveals from the record that learned trial Court since framing of the charge upto statement of the accused made errors and mistakes which brought the case of the present appellant within the shadow of reasonable doubt and the apex courts always guided that even the slightest doubt if arisen will go in favour of the accused.
11. The learned trial Court considered the Photostat copies of the transfer order, LPC and other documents without following the mandatory law. The case of The State v. Nisar Ahmed Khoro (supra) Articles 74 and 76---secondary evidence-admissibility---essentials construction of building in violation of approved plan-Building Control Authority restraining owners from constructing such building in violation of approved plan---Owners submitting_ two letters from concerned Ministers to officials of Authority asking them not to restrain owner in raising construction and that approval would be accorded thereafter-- Construction of building was, thus, completed in violation of approved plan-Owners along with two Ministers were challaned and their case sent to Ehtesab Bench---Original letters purported to be sent by Ministers were not traceable---Prosecution took no pains to fulfil requirements of Arts.74 and 76, Qanun-e-Shahadat Order, 1984 for producing secondary evidence-None of prosecution witnesses claimed to have seen original letters. Photostat copies of such letters would neither qualify as secondary evidence nor such letters fell within relevant categories specified in Art.74, Qanun-e-Shahadat Order, 1984-- Article 76, Qanun-e-Shahadat Order, 1984 has to be construed for purposes of admissibility of secondary evidence while, Art. 74, Qanun-e-Shahadat Order 1984 would determine whether particular piece of evidence would qualify as secondary evidence. Person purported to have - received such letters denied existence thereof---No evidence in rebuttal was produced by prosecution to prove that letters in tact were received by the concerned person---Unless loss of original was categorically proved, secondary evidence could not be led---entire evidence relating to such letters was based on hearsay which could not be relied upon---Accused Ministers to whom such letters were attributed, thus, could not be convicted when neither original letters were placed on record nor seeondary evidence relating thereto was led/produced, therefore, they were acquitted.
' In case of Muhammad Khan and others v. The State (Supra) it was held that no signature was found on the statement under section 342, Cr.P.C. Of the accused'on the first page of said statement, which was a flagrant violation of the mandatory provision of section 342(2), Cr.P.C.
Prosecution having miserably failed to make out the case against the accused, Judgment convicting and sentencing him passed by the trial court was set-aside and he was ordered to be released forthwith.
' In case of Nazir Ahmed and others (supra), it was held that section 342, Cr.P.C. Is divided into two parts; first part gives discretion to the court whereas its second part is mandatory. Examination of accused, after close of prosecution evidence, was obligatory and could not be dispensed with.
Section 342, Cr.P.C. Was based on principle involved in maxim "Audi alteram partem" namely, that no one should be condemned unheard. Where a person was to be charged with any penal liability, he should be made aware of all the facts and circumstances existing against him in order to enable him to give explanation in respect of those charges and evidence produced against him at the trial. Accused should be heard not merely on what was prima facie proved, but also on every circumstance appearing in evidence against him. Trial conducted without compliance of provisions of section 342, Cr.P.C., would be a mockery of law and would stand vitiated. Wisdom behind recording statement in question and answer form was to secure that the court by framing its question performed a double function; Firstly communication to the accused to the full extent that could be necessary in each particular case what was alleged against him in prosecution evidence, and secondary ascertainment from accused as to what explanation or defence he wished to put forward in respect thereof. Accused was asked questions under section 342, Cr.P.C.
For the purpose of enabling him to explain all circumstances having an incriminatory defect in relations to the offence charged or appearing in the evidence upon which prosecution relied to prove its case or which was likely to influence the mind of the court to draw adverse inference against him. This case-law further reveals that if such evidence was not put before accused in shape of questions while recording his. Such statement, then conviction on the basis of that evidence would be illegal.
12. In view of the above facts, circumstances and the case law, it reveals that in the alleged F.I.R.
Complainant narrated that the appellant/accused admitted his guilt before him but the charge framed by the trial Court as well as the statement of accused, recorded by the trial court do not mention the facts regarding the admission of guilt of the appellant before complainant and no any question was put by the trial Court about the same and every witness in his deposition deposed that they contacted to the office of. DPO Jacobabad for verification of the alleged fake order allegedly issued by the DPO Jacobabad.
13. The upshot of the above discussion is that the prosecution has miserably failed to establish its case against the appellant beyond any shadow of doubt. Accordingly appeal is allowed and the impugned Judgment dated 1-3-2011 is set aside, resultantly appellant is acquitted. He shall be released forthwith if not required in any other crime.