' SHAHID ANWAR BAJWA, J.---By this order we proposed to decide M. A. No,10215 of 2011 (in Cr. Acctt.
Appeal No,12 of 2011) and M. A. No,10218 of 2011 (in Cr Acctt. Appeal No 13 of 2011) both applications being under section 426, Criminal Procedure Code.
2. Reference No,13 of 2011 was filed before the Accountability Court. It was stated in the reference that in 1975 Board of Revenue, Government of Sindh exchanged Nakabuli (Government) land with Kabuli (Private) land at KDA Scheme-33. Total area of exchanged land was 82-26 acres and out of which 16-02 acres was included in Survey Nos.63 and 64, Deh Gujro, Tapo Gadap District Karachi East. Muhammad Nawaz son of Amir Bux and his siblings had a total combined land share of 8-00 acres. They sold their share in 1979. In 2003 accused No,1 Muhammad Nawaz gave application to District Officer, Revenue claiming that possession of land was not given to him. Accused tapedar (accused No,2) certified that physical possession was not given to Muhammad Nawaz. His report was endorsed by accused supervising tapedar (accused No,3) and accused Mukhtiarkar (accused No,4). On the basis of this report recommended re-allotment of land though he was custodian of the entire record. Accused No,5 Abdul Latif Brohi Mukhtiarkar attested entries made in Form VII.
Accused No,6 signed power of attorney in his name and sold the land to his brother accused No,7.
Accused persons were tried by the Accountability Court and vide judgment dated 19-11-2011 the convicted Muhammad Nawaz and Abdul Latif Brohi while acquitted others.
3. Mrs. Ismat Mehdi learned counsel for Abdul Latif Brohi in Criminal Accountability Appeal No, 12 of 2011 made the following submissions:--
(i) Learned counsel referred to Page 44 of the judgment and submitted that the allegation against appellant is that he signed Entries Nos.54 and 55 (Exb.11/14 and 11/15). She submitted that appellant categorically denied that he ever signed these entries or these entries were in his handwriting and learned Court below without going to ascertain and reach a definite conclusion that entries were signed by/or were in handwriting of the present appellant ordered conviction. Learned counsel next submitted that these entries were not put to the appellant while his statement under section 342, Cr.P.C. Was recorded. Learned counsel relied upon Muhammad Anwar v. Hafizuddin (1984 CLC 2871), Abdul Ghaffar v. The State (2011 M LD 239 and Muhammad Shah v. The State (2010 SCM R 1009).
4. Learned Special Prosecutor NAB opposed these applications and submitted that under Article 84 of the Qanun-e-Shahadat, a Court has requisite power to itself compare handwriting or signatures and then to arrive at conclusion and this was exactly what the Court below has done. He relied upon Gulzar Nathani v. Naeem Ahmed (2010 YLR 358). Learned Special Prosecutor read Question 2 recorded during statement under section 342, Cr.P.C. And submitted that entries Nos.54 and 55 have been put, in a way, to the appellant.
5. In Criminal Accountability Appeal No,13 of 2011 Khawaja Naveed Ahmed learned advocate read statement under section 342, Cr.P.C.. Of the present appellant and submitted that present appellant had never had any connection whatever with land in question and had never given any power of attorney and these allegations/facts he had specifically denied.
6. Learned Spl. Prosecutor NAB submitted that Cr. Acctt. Appeal No,13 of 2011 is time barred. He referred to memo. Of plaint of Suit No,820 of 2004 pending before this Court.
7. We have considered the submissions made by the learned counsel for parties and have also gone through the record.
8. M.A. No,10215 of 2011 in Cr. Acctt. Appeal No,12 of 2011. The question before learned Court below was whether Entries Nos.54 and 55 have been written or signed by the present appellant or not. In this regard learned Court below recorded its findings as under:-- #TBS PCr.LJ #TBE "Perusal of entry No,54 dated 8-5-2004 (Exh.11/14) also shows that on its bottom it bears the signature of Tapedar Deh Bitti Amri as well as signature of Muhtiarkar Scheme No,33, City District Government Karachi. Further glance over entry No,54 (Exh.11/14) shows that it bears the signature of Abdul Latif Brohi, Mukhtiarkar. The signature on entry Nos.54 and 55 (Exh.11/14 and Exh.11/15) have not been disputed or denied by him. I have compared the admitted signature of accused Abdul Latif Brohi on his plea (Exh.9), his signature on his statement under section 342(1), Cr.P.C. Recorded before this Court as well as his signature on the Vakalatnama of his counsel so also his signature on certain adjournment applications filed by him with his signature on the entry Nos.54 and 55 (Exh.11/14 and Exh.11/15) and with naked eyes it transpires that his signature on the entry Nos.54 and 55 (Exh.11/14 and Exh.11/15) are resembling with each other and seems to have been signed by one and same person. Learned counsel for accused Abdul Latif Brohi as stated above, has vehemently contended that his signature and handwriting have not been sent to handwriting expert but it is not obligatory on the part of the Court to send handwriting and signature of accused to any handwriting expert as Court is competent and possess ample powers to tally handwriting and signature of accused with his admitted handwriting and signature and the Court could form opinion on the basis of tallying of admitted handwriting and signature of the accused with the disputed handwriting and signature and the opinion of the Court is final, if any authority is needed, the reference may be had to the, case reported in PLD 1983 AJK 20. In such state of affair, in case, if evidence of issuance of "NOC annexed with, sale, deed (Exh.13/1) as deposed by P. W.4 Muhammad Zafar, Sub-Registrar and objected and contended by Mr. Aamir Raza Naqvi, advocate for accused, is excluded from consideration then too there is sufficient evidence available on record to show that accused Abdul Latif Brohi being Mukhtiarkar had issued voucher letter (Exh.13/8) and entries Nos.54 and 55 (Exh.11/14 and Exh.11/15) also bears his signature and such incriminating piece of evidence has not been disproved by the defence side by leading cogent and convincing evidence, as such the same could not be ignored or brushed aside for any reason.
' The learned counsel for accused Abdul Latif Brohi, in case, if he disputes his signature on entry No,54 (Exh.11/14) and signature/ initial on voucher letter (Exh.13/8) was under obligation to move to the Court for sending of his admitted and disputed signature and initial to expert by filing of application before this Court but no such application was also filed during the pendency of the case."
9. Contention of the learned Senior Special Prosecutor NAB was that under Article 84 of the Qanun- e-Shahadat a Court has requisite power to compare signatures on or writing of documents and to arrive at conclusion and that is exactly the Court below has done. Learned counsel relied upon Gulzar Nathani's case (supra). Facts, in the reported case were that plaintiff had filed suit for Possession, Cancellation, Recovery of Articles, Damages and Permanent Injunction against defendant, whereas defendant filed suit for Specific Performance of Contract. Both suits were tagged together. In respect of power of Court to compare signatures it was observed as under:- "As far as issue of comparing of signatures by this Court is concerned, this Court has ample powers to undertake such an exercise. There is no bar either in the Qanun-e-Shahadat or in any other law which could restrict such comparison. However, the application on this issue would be heard and decided on the next date of hearing. In the intervening period, the office shall ensure that R&P of Suit No,978 of 2006 be tagged with these proceedings for hearing on the next date."
10. There is no cavil with the above proposition. A Court has discretionary power to refer a disputed signature or disputed handwriting for seeking opinion from a Handwriting Expert. Other party or challenging party will have right to cross-examine such handwriting expert to establish veracity or soundness of his opinion. However, opinion of handwriting expert is only what it states it is an opinion. Notwithstanding its such discretion, a Court has all the requisite powers of undertaking exercise of comparing handwriting or signatures on its own and thereafter arriving at conclusion as to the genuineness or otherwise of the handwriting or signatures, as the case may be. Therefore, there is no cavil with the proposition advanced by the learned Senior Special Prosecutor NAB.
However, what has to be seen is whether Court below in the present case has reached at such a conclusion. We have quoted above relevant para and it appears that Court has compared signature but then after having compared signatures it did not reach at a definite conclusion because it stated that they "seem" to be. Word "seem" is not defined in Black's Law Dictionary or in Ayar's Judicial Dictionary. In Concise Oxford Dictionary 11th Edition word "seem" is given meaning as "give impression of being". In Chamber Dictionary, 99th Edition word "seem" is given the following manner:- "To appear; to appear to one; to appear to be; semblance; apparent appears; apparently; in appearance only."
11. Therefore, it appears that learned Judge Accountability Court had not reached at a definite certain conclusion.
12. Second aspect of the arguments of Mrs. Mehdi was that Entries Nos.54 and 55 (Exh.l1/14 and Exh.11/15) were never put to the appellant while statement under section 342, Cr .P.0 . Was recorded.
Learned Special Prosecutor submitted that applicant was so put when question No, 2 was recorded. Question No,2 was in the following words:-- Q-2. It has also come on record that during the course of your posting as Mukhtiarkar, you vide your letter dated 30-4-2004 (Exh.11/13) directed the supervising Tapedar, KDA Scheme No,33, Karachi, stating therein that the land bearing Survey Nos.63-64 situated in Deh Gujro which was allotted to co-accused Muhammad Nawaz and his family members and possession of the said land was not handed over to them and on his application, the land bearing Survey Nos.39-40, Deh Bitti Amri admeasuring 16 acres has been allotted to co-accused Muhammad Nawaz and others vide letter of Land Utilization, Board of Revenue dated 8-3-1997 as such the said entries may be made in the name of Muhammad Nawaz and others in Deh Form VII. What have you to say?
Ans:- It is incorrect to say. In fact, the letter (Exh.11/13) has been prepared and forged by Allah Obhayo, the Tapedar who has also made the entries in the revenue record vide Deh Form VII in the name of co-accused Muhammad Nawaz and others. The letter (Exh.11/13) neither bear my handwriting nor bear my signature nor it has been issued from my office.
13. There is no mention of Exhs.11/14 and 11/15. Learned counsel relied upon and Muhammad Shah's case (supra) which case in turn was relied upon by this Court in Abdul Ghaffar's case (supra) and it was observed that if a piece of evidence is not put to the appellant it cannot be used as evidence against the appellant. The present is a bail application and at bail stage in appeal it has to be seen whether there is superficial and apparent mistake of fact or law in the judgment of a Court below.
On tentative assessm ent it appears that above two contentions of the learned counsel are not without force. Consequently, this application is allowed and appellant is ordered to be admitted to bail upon his furnishing solvent surety in the sum of Rs,500,000 with bail bond in the like amount to the satisfaction of Nazir of this Court.
14. M. A. No,10218 of 2011 in Cr. Acctt. Appeal No,13 of 2011. It may be recapitulated that allegation against the present appellant was that after having sold his share in the land-in-question he filed application to District Officer (Revenue) claiming therein that possession of land was never given to him. When statement under section 342, Cr.P.C. Was recorded he admitted in response to Question No,1 that the land-inquestion was allotted to his father and 42 other Khatedars in 1975. In response to question Nos.4 and 5 he stated as under:-- Q-4 It has also come on record that in the year 2003, you and your sisters and brothers had also filed an application before District Revenue Officer with the prayer that the possession of land in question, which was allotted to your deceased father, was not handed over to you and it may be allotted to you and your sister and brothers. What have you to say?
Ans: It is incorrect to say. Q-5 It has also come on record that you also filed an application on 31- 10-2003 addressing to Mukhtiarkar, Scheme No,33 with - the same grievance of non receipt of possession of land in question allotted to your deceased father and that extra government land in Deh Bitti Amri is lying vacant which may be allotted to you and your family members and possession of the same may be delivered to you. What have you to say?
Ans: It is incorrect to say that I ever filed any application before Mukhtiarkar, Scheme No,33 on, 31- 10-2003. I see application (Exh.11/15) and say that it does not bear my signature as I used to sign in English."
15. In response to Question No,3 he stated as under:-- Q-3 It has also come on record that after allotment of aforesaid land, your father as well as your uncle Mr. Jaffar sold out the shares of their land in Survey No,63-64, Deh Gujro, Tapo Gadap, District East, Karachi to one Mst. Asifa Begum and such sale deed was registered before the Sub- Registrar and such entry was also maintained in the revenue record vide entry Nos.l43 and 44 of 1979. What have you to say?
Ans: It is incorrect to say that my father Amir Bux had sold out his share of land in the afore-stated Survey No,63-64, Deh Gujro, Tapo Gadap, Karachi to Mst. Asifa Begum and such sale deed was registered. At that time, I was minor as well as my other sisters and brothers were also minors.
However, I do not know about disposal of land by deceased Jaffer as he was not my uncle.
However, Abdul Rahim, who was also one of the shareholder in the afore-stated land was my maternal grandfather who expired and after his death, the land in question was inherited by my mother and after the death of my mother, my father also sold out the land inherited by my mother and such entries in the revenue record were also maintained vide entry Nos.43 and 44.
After disposal of the afore-stated land 1 and sisters and brothers have no concern with the said land.
16. Contention of Khawaja Naveed Ahmed learned counsel for the appellant was that the appellant does not have any connection etc. With the said land. Contention is clearly belied by plaint of Suit No,820 of 2004 (available at Page 449 of paper book). Appellant was one of the plaintiffs and in opening part of the plaint he stated as under (plaint duly verified on oath by the appellant):-- "(1) That the plaintiffs are co-owners and shareholders in respect of agricultural land admeasuring 6-1/2 acres out of Sector 5-C and (11-A/Survey No,40), Deli Bitti Amri, KDA Scheme No,33, Karachi, 4 acres in Sector 5-C, KDA Scheme No,33, and remaining 4 acres in Sector 11-A, KDA Scheme No,33, Karachi, the total area of the said land is 8-00 acres.
(Photocopies of Deh Form VII are enclosed herewith and marked as annexures P/1 and P12).
(2) That the plaintiffs came to know on 22;7-2004 that the defendant No,1 with collusion of defendant No,4 has illegally, unauthorizedly registered a Lease Deed bearing registration No,143, dated 2-7-2004, Book No, 1, M.F. Roll No,U-42719/1905, dated 8-7-2004, Sub-Registrar Agricultural Land East Karachi, and on the basis of said bogus registered lease deed the defendant No,1 handed over vacant and peaceful possession of the portion of said agricultural land to the defendant No,2 without any knowledge and consent of the plaintiffs. The plaintiffs neither know the defendant No,1 nor they have executed any Power of Attorney in his favour in respect of the aforesaid agricultural land."
17. From the above, it is obvious stand taken by the present appellant in suit is totally contradictory to the stand taken by him while statement under section 342, Cr.P.C. Was recorded: On one hand appellant claimed to be owner of the land-in-question and on the other hand while his statement under section 342, Cr.P.C. Was recorded he stated that he had no connection with the land.
18. In view of the above situation the appellant is not entitled to concession of bail. Consequently, this application is dismissed.
19. Needless to observe that all the above observations are tentative in nature and shall in no way be taken into consideration while deciding the appeal.