SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Rasheed Akbar Khan son of Ghulam Akbar Khan, caste Balouch, resident of village Niwani, Tehsil and District Bhakkar, appellant along with Dr. Ayyaz Ahmed Gulzar (since acquitted) was involved in case FIR No,190/2002, dated 26.10.2002, offence under sections 468, 471,, 474, 476, P.P.C., read with section 82 of the Representation of the People Act, 1976, registered at Police Station City Bhakkar. He was tried by learned Sessions Judge Bhakkar under the afore-mentioned offences. The learned trial court seized with the matter in terms of judgment dated 21.01.2014 convicted and sentenced the appellant as under:- Under section 468, P.P.C., sentenced to undergo R.I. for five years with fine of Rs,5,00,000/- and in case of default in payment of fine, to further undergo S.I. for six months.
Under section 471 read with section 465, sentenced to undergo R.I. for two years with fine of Rs, 1,00,000/- and in case of default in payment thereof, to further undergo S.I. for two months.
Under section 82 read with section 78 of the Representation of the People Act, 1976, sentenced to undergo R.I. for three years with fine of Rs,5,000/- and in case of default in payment thereof to undergo S.I. for fifteen days.
All the sentences inflicted upon the appellant were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended in his favour.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence through filing the instant appeal.
3. Prosecution story as portrayed in the FIR (Exh. PB) lodged on the complaint of Ghazanfar Abbas Chheena (PW-7) is that the appellant had filed his nomination papers as a Candidate for PP-49, Bhakkar to contest the General Elections 2002. Along with the nomination papers filed before the Returning Officer, a fake B.A. degree issued under Roll No,34291 pertaining to the year 1977 with registration No,77-z-293 was also enclosed. The complainant, however, averred that the total strength of students appearing in the B.A. Examination in 1977 was 30184 while registration No,77-z- 293 was allotted to one Muhammad Aftab Farrukh son of Ghulam Nabi. It was alleged in the complaint that Rasheed Akbar Khan accused was not having qualification of F.A. while he had attached copy of fake/fictitious degree of B.A, which was attested by Dr. -Ayyaz Ahmed Gulzar, District Officer (Livestock), Bhakkar with his connivance. It was further alleged that accused Malik Javed Akbar had proposed the candidature of the appellant while Zahid Abbas had seconded him.
On 26.08.2002, the complainant moved an application before the Returning Officer; however, the accused withdrew his nomination papers on 28.08.2002. Subsequently learned Additional Sessions Judge passed direction for registration of the case against the accused.
4. The complainant along with his complaint and original letters Nos,413 and 414 dated 21.10.2002 of learned Additional Sessions Judge, appeared before Makhdoom Altaf Hussain, Inspector/SHO (PW- 2), who was present in the premises of District Courts, who after endorsing police karvai on the complaint transmitted it to Police Station for registration of formal FIR. On its presentation before Sail Ullah, ASI (PW-1), he chalked out formal FIR and the investigation was entrusted to Aftab Ullah Khan, DSP (PW-4). The Investigating Officer on 19.04.2003 wrote a letter (Exh.PE) to the Controller of Examination, University of the Punjab, for verification of B.A. Degree of the appellant, however, vide letter No,685/C, dated 31.05.2003 (Exh. PF), it was replied that the degree was fake/bogus.
5. It is pertinent to mention here that during the course of investigation the Investigating Officer prepared cancellation report, which was presented before learned Magistrate Section-30, Bhakkar.
However, the learned, Magistrate vide order dated 14.07.2008 disagreed with the same. The order of learned Magistrate was assailed through filing Writ Petition No,9606/2008; which was allowed vide order dated 09.07.2009 and the matter was remanded back to the learned Magistrate with the direction to pass a fresh order. During the proceedings before learned Magistrate on 17.03.2010, both the parties were afforded hearing, however, the learned court below disagreed with the cancellation report and directed the local police to submit report in terms of section 173, Cr.P.C., which was submitted before the court of competent jurisdiction. The learned trial court formally charge sheeted the accused vide order dated 31.05.2013 to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as eight (8) prosecution witnesses.
6. Ghulam Abbas Chheena (PW-7) is the complainant of the case. Rana Zahoor Ahmed, Additional Sessions Judge (PW-8) was the Returning Officer at the relevant time. Saif Ullah, ASI (PW-1) had chalked out formal FIR while investigation in this case was conducted by Makhdoom Altaf Hussain, Inspector (PW-2) and Aftab Ullah Khan, DSP (PW-4). Rana Fazal Ahmed (PW-5) was a retired Assistant Controller Examinations, Punjab University while Zubair Ahmed, Assistant Controller Examinations (PW-6) had produced record before the learned trial court.
7. The appellant was also examined under section 342, Cr.P.C., wherein he refuted the allegations levelled against him in the prosecution evidence.
8. Learned trial court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellant resulting into his conviction in the afore-stated terms.
9. At the very outset learned counsel for the appellant submitted that the impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to real facts of the case and material brought forth on record. Main crux of arguments of learned counsel for the appellant is that the alleged photo copy of degree of B.A. appended with the nomination papers was not scrutinized by the competent authority rather the nomination papers were withdrawn before its scrutiny. Learned counsel further emphasized that the alleged photocopy of degree appended with the nomination papers was neither attested by the concerned authority nor verified and even no effort whatsoever was made during the course of investigation to procure the original degree. It was argued that it has come on record in the statement of the Returning Officer that neither the degree was signed by the appellant nor it was annexed with the nomination papers as Annexure. Learned counsel vigorously argued that Rana Fazal Ahmed, who appeared during the course of trial as PW-5 was not serving the Punjab University at the time of making his statement before the learned trial court, therefore, he being a retired official was not custodian of the record, therefore, his statement is devoid of legal sanctity. Next submitted that PW-5 while making his statement as a PW also admitted that report (Exh.PF) issued in respect of B.A. degree did not contain the official seal of Assistant Controller of Examination, which further shatters its credence.
Learned counsel submitted that during the course of investigation vires of the crime report were found false, hence cancellation report was prepared by the Investigating Officer. It was further argued that on the same set of evidence, Dr. Ayyaz Ahmed Gulzar, co-accused was acquitted of the charge by the learned trial court while disbelieving the prosecution evidence to his extent and no appeal against his acquittal was filed meaning thereby that the prosecution was satisfied qua the conclusion drawn by the learned trial court to his extent. It was finally argued that there is not an iota of evidence to establish that the appellant was instrumental in committing fraud/forgery; hence keeping in view deficit material available on record, the learned trial court was not justified in recording conviction against him and prayed for his clean acquittal from the charges.
10. On the other hand, learned Deputy Attorney General assisted by learned counsel for the complainant vehemently opposed the contentions raised by learned counsel for the appellant.
Learned counsel for the complainant contended tint at the time of filing nomination papers although the appellant was not having the qualification of B.A, however, he by way of managing photocopy of a fictitious/fake degree of B.A. attached it with his nomination papers and submitted it before the Returning Officer. Next submitted that during the course of investigation the Investigating Officer transmitted photocopy of the degree to the University of the Punjab from where it was reported that the same did not exist in their record. Learned counsel argued that there is tangible evidence available on record to establish that the appellant was involved in fraud and forgery. It was finally argued that the prosecution proved its case through leading cogent and confidence inspiring evidence; therefore, the learned trial court was rightly justified in recording conviction against him under the relevant provisions of law.
11. We have considered the arguments advanced by learned counsel for the parties and gone through the record available on file with their able assistance.
12. As per prosecution accusations contained in the complaint, which culminated into the instant FIR, the appellant in order to contest the General Elections 2002 filed his nomination papers before the Returning Officer as a Candidate from PP-49, Bhakkar. It is alleged in. the crime report that at the time of filing nomination papers, the appellant was not having the qualification of B.A. However, along with his nomination papers, he submitted photocopy of a fake/fictitious degree of B.A. allegedly issued by the University of the Punjab. Said Returning Officer (Rana Zahoor Ahmed, Additional Sessions Judge) appeared during the course of trial as PW-8, who during the course of cross-examination frankly conceded that the appellant withdrew the nomination papers prior to the day of scrutiny. Moreover, PW-8 admitted that neither the alleged fake degree was signed by the appellant nor it was annexed with the nomination papers as an Annexure. Relevant extract out of statement of PW-8 is reproduced as under:- "It is correct that photocopy of alleged fake degree Mark A neither bears signature of accused Rasheed Akbar Khan nor the same has been marked as annexure with the nomination papers."
Perusal of record available on file also reflects that the Returning Officer had not passed any order for initiation of proceedings against the appellant on account of producing copy of a forged/fictitious degree of B.A.
13. While going through the record available on file we have observed that mainstay of the prosecution version in this case is that during the course of investigation, Investigating Officer had transmitted copy of the B.A. degree to the University of the Punjab for its verification, however, the concerned officials of University of the Punjab vide its report (Exh.PF) reported that the same was bogus. In order to establish this fact the prosecution produced Rana Fazal Ahmad, a retired Assistant Controller of Examination, who appeared during the course of trial as PW-5. There is no cavil to this proposition that at the time of making his statement during the course of trial, PW-5 was no more at the strength of University of the Punjab as such in no way he was not custodian of record. Although said PW had stated that he had submitted his report (Exh.PF) qua authenticity of the B.A. degree, however, during the course of cross-examination, he frankly conceded that Exh.PF did not bear seal of the Assistant Controller concerned. Relevant extract out of his statement is reproduced as under: - "It is correct that Ex.P.F does not bear seal of the .Assistant Controller concerned."
Needless to mention that without official seal the said report is devoid of legal importance and no sanctity whatsoever can be attached to it qua its genuineness. Fact also remains that said PW neither produced original record qua the B.A. degree nor provided any attested/certified copy of the said degree.
14. Next piece of evidence available with the prosecution is statement of Zubair Ahmed, Assistant Controller (Certificates) of University of the Punjab, who appeared during the course of trial as PW-
6. During the course of trial he brought the result gazette of University of the Punjab pertaining to Roll No,4567, however, fact remains that roll number mentioned in the FIR is 34291. Hence, statement of PW-6 to the extent of the present appellant is of least importance.
15. Admittedly the original degree, photocopy of which was allegedly annexed by the appellant with his nomination papers was neither brought on record during the course of investigation nor was exhibited during the course of trial proceedings. While going through the record available on file we have observed that said document was brought on record as Mark-A in the shape of a photocopy, however, the same being secondary evidence is inadmissible and that was not proved in accordance with law. It is settled law that a person relying on a document is under obligation to prove the same, hence, the same could not be read in evidence to record conviction against the appellant keeping in view the pronouncements of the superior courts of the country. The august Supreme Court of Pakistan in the case of State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal (2011 SCM R 1013), laid down the following principle:- "---O.XIII, Rr. 3 & 4---Document not produced and proved in evidence but only marked could not be considered by courts as a legal evidence of a fact."
Similar view was held in the cases of Zia Ul Hasan v. The State (PLD 1984 SC 192), Abdul Qayyum v.
Muhammad Rafique (2003 SCM R 104), Fazal Muhammad v. Mst. Chohara and others (1992 SCM R 2182), Muhammad Arshad Naseem v. The State (2004 PCr.LJ 371) and Asif Ali Hashmi through 4 Legal Heirs v. Muhammad Arif Mian and 4 others (PLD 2015 Islamabad 191).
16. There is no denial to this fact that complainant of this case, who appeared during the course of trial as P W-7 belongs to rival party of the appellant. While making his statement before the learned trial court during cross-examination the complainant admitted that he, as well as, his two uncles contested elections held in the years 1988, 1993, 1997 and 2002 against real brother of the appellant, as well as, his brother-in-law, however, in all these elections, none from the complainant side was declared a returned candidate. He further admitted that in all General Elections from 2002 to 2008, the objections with regard to educational qualification of accused Saeed Akbar Khan were not sustained by any forum and in all those objections, educational qualification of accused Rasheed Akbar Khan for General Election, 2002 was made basis. The complainant also conceded that he filed CPLAs No,103, 104 LR-2003 and CPLA No,95-96 of 2006 in the august Supreme Court of Pakistan regarding educational qualification of the appellant for General Election, 2002, however, both the said petitions were dismissed. So much so the complainant acknowledged that facts of present criminal case were also discussed in the orders of the apex Court. He further conceded that despite the failure in earlier round of aforementioned petitions, he filed Writ Petition No,12230 of 2007 and Writ Petition No,12231 of 2007 in the Lahore High Court, Lahore against the appellant and his brother Saeed Akbar Khan regarding their qualification and both were dismissed by the full Bench comprising upon three Hon'ble Judges of Lahore High Court Lahore. During the course of cross-examination, he could not deny the registration of FIR No,2 dated 06.01.1995 under sections 468, 471, 409, 420, and 409, P.P.C. registered against him at Police Station City Bhakkar; wherein it was alleged that he was in the habit of stealing documents from different government departments and to prepare bogus documents on the basis thereof in order to get the benefit therefrom. The complainant also could not deny that he had prepared a false RL-II in order to get the land transferred in the name of his brothers, namely, Rafaqat and Liaqat by converting its area from 1:600 Kanal to 4500 Kanals.
17. Another important aspect of the case that the nomination papers filed by the appellant roll number and year of passing the 13.A. degree were not mentioned. This fact was also admitted by the complainant at the time of recording his statement; wherein while replying to a question he conceded that Roll No,34291 and the year 1977 were not mentioned in the nomination papers filed by the appellant. However, there is nothing on record that from where the complainant obtained this information. This aspect alone creates flaw in the authenticity of the prosecution version.
18. Another important aspect of the case is that during the course of investigation the Investigating Officer after thoroughly investigating the case opined that there is deficit material to establish the contents of the crime report against the appellant. Therefore, while taking into consideration the whole material brought forth on record he prepared cancellation report. Fact also remains that at the time of adjudicating the case by the learned trial court, prosecution evidence to the extent of co-accused Dr. Ayyaz Ahmed Gulzar was disbelieved and he was acquitted of the charge on the same set of evidence. Admittedly the prosecution had not assailed acquittal recorded by the learned trial court in favour of said co-accused meaning thereby that it was satisfied to the conclusion drawn by the learned trial court to his extent.
19. While going through the record we have observed that the appellant along with his brother Rasheed Akbar Khan was being prosecuted by the complainant in case FIR No, 193/2002 for the similar offence and with the same allegation. The instant case as well as case pertaining to FIR No,193/2002 were tried by the same trial Court arid the evidence was also recorded almost on the same dates of hearing. It is very surprising to us that except few variations in the statements of PW.1 and PW.5, the evidence was not recorded independently in each case rather the learned trial court has brought on record the evidence recorded in other case to the file of this case, which definitely is against the spirit of law. While going through the record we feel no hesitation in observing that a stereotyped judgment based on stereotyped evidence has been delivered by the learned trial court in both the cases which vitiates the proceedings against the appellant. Such practice is not only against the very spirit of law but against the principles of natural justice. So in our humble view the conviction and sentence passed by the learned trial court is not proper and the same cannot be sustained.
20. As far as applicability of the provisions of section 82 of the Representation of the People Act, 1976 is concerned, it was incumbent upon the prosecution to prove the guilt of the appellant through independent, consistent, cogent, clear and convincing evidence, which may satisfy the judicial conscious. There should be no doubt that the complainant of this case made his statement because of political rivalry/animosity, hence independent corroboration of his statement is necessary, which is lacking in the case in hand. In this case, the complainant himself appeared as PW-7 and frankly conceded that he and his other family members have been contesting elections against the appellant side and in the general elections held in years 1988, 1993, 1997 and 2002, their side lost the elections. The complainant admitted the registration of the FIR against him for tampering with the public record and he also could not prove that the appellant was a valid nominated candidate. The basic allegation of forging a bogus degree has also not been proved. In such circumstances, it is observed that the prosecution failed to discharge its onus to prove the charge of corrupt practice against the appellant through independent and convincing evidence.
21. In sequel to what has been discussed above, we have been persuaded to hold that the prosecution has failed in establishing its case against the appellant beyond shadow of doubt while it is cardinal Principle of law that benefit of every doubt is to be extended in favour of the accused not as a matter of grace rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCM R 772); wherein it was held as under: "4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCM R 1345), Ghulam Qadir and 2 others v. The State (2008 SCM R 1221), Muhammad Akram v. The State (2009 SCM R 230) and Muhammad Zaman v. The State (2014 SCM R 749)"
22. Moreover, it is golden principle of law that the Court ought to let off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 21.01.2014, Crl. Appeal No,105/2014 filed by the appellant is accepted in toto as a consequence whereof he is ordered to be acquitted of the charge in case FIR No,190/2002, dated 26.10.2002, offence under sections 468, 471, 474, 476, P.P.C., read with Section 82 of the Representation of the People Act, 1976, registered at Police Station City Bhakkar. Sentence of the appellant stands suspended vide order dated 10.02.2014 passed in Crl. Misc. No, 1/2014 filed in Crl. Appeal No,105/2014. His surety stands discharged from the liability.