SARDAR MUHAMMAD SARFRAZ DOGAR, J.--Qari Muhammad Sadiq Jameel (appellant) was tried by the learned Special Judge Anti-Corruption, Lahore in case FIR No,24/ 1998 dated 19.03.1998 for offences under sections 409, 420, 467, 468, 471, 218/109, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, registered at Police Station DACE, Punjab, District Lahore. At the conclusion of the trial, vide impugned judgment dated 30.03.2012, the learned trial court held the appellant guilty , convicted and sentenced him as under:-- i. Under Section 409, P.P.C. Life Imprisonment and to pay fine to the tune of Rs, 14,00,192.36/- and in default whereof to further undergo simple imprisonment for three years, ii. Under Sections 468/471, P.P.C. Four Years' rigorous imprisonment in each offence and to pay fine to the tune of Rs,25,000/- in each offence and in default whereof to further undergo simple imprisonment for one year . iii. Under Section 5(2) 47 of PCA. Seven Years rigorous imprisonment and to pay fine to the tune of Rs,1,00,000/- and in default whereof to further undergo simple imprisonment for one year .
The aforesaid convictions and sentences were ordered to run concurrently with benefit of Section 382-B, Cr .P.C.
2. Brief facts of the case, as narrated in the FIR are that officials of. Education Department exercising powers as Drawing and Disbursing Officers have taken away the relevant record with them and the same was not shown to the inquiry committees constituted for detection of fraudulent drawls by the DDOs (ten in number mentioned in FIR) including the appellant being DDP/ Headmaster Govt. Messrs Bheeni Park, District Sheikhupura. It is further alleged in the FIR that the officials had connived with the appointing authorities i,e, the DEOs, Dy.DEOs and A/G Office and drawn huge amounts fraudule ntly. The main allegation against the appellant is that he misappropriated the amount of Rs,14,00,192.36/- in the year 1994 by preparing forged record in respect of salaries of bogus teachers,
3. After usual investigation, challan against the appellant was submitted. The learned trial Court framed charge against him to which he pleaded not guilty and claimed trial. Hence the prosecution evidence was invited.
4. At trial, the prosecution produced as many as nine witnesses. Whereas, Learned DPP after giving up PWs namely Muhammad Ashraf and Zahoor ud Din closed the prosecution evidence.
5. The statement of the appellant, under Section 342 of the Code of Criminal Procedure, 1898 was recorded. He refuted the allegations levelled against him and pleaded false implication. The appellant did not appear as his own witnesses under section 340(2), Cr.P.C., however , firstly wished to produce defence evidence but later one closed the same without production of any evidence.
6.The learned trial court after evaluating the evidence and considering the merits of the case held the appellant guilty , convicted and sentenced him as detailed above.
7. Learned counsel for the appellant contends that the prosecution failed to prove its case against the appellant beyond reasonable doubt; that conclusions drawn by the learned trial court were result of misreading and non- reading of evidence; that neither the charges were proved nor the offences were made out; that the learned trial court failed to evaluate the evidence produced by the defence at trial; that the prosecution evidence was full of discrepancies; that it was, in fact, case of no evidence and that the appellant is entitled to acquittal.
8. Learned Deputy Prosecutor General supported the judgment rendered by the learned trial court.
9. Arguments heard. Record perused.
10. The main allegation against the appellant is that he misappropriated the amount of Rs, 14,00,192.36/- in the year 1994, by preparing forged record in respect of salaries of bogus teachers, After scanning the whole record, it divulged that the appellant was held guilty of misappropriation of certain amount but the fact remains that nowhere in the record, any individual liability has been shifted upon the appellant. Moreover , no regular departmental inquiry was initiated into the matter with respect to ascertain the alleged fraud by the appellant. Only joint role has been assigned to the present appellant along with others and no specific allegation was put in the FIR against the appellant. Moreover , the Investigating Agency did not join the high-ups, who are alleged to have connived with the appellant and others while committing such fraud and by way of preparing forged documents.
11. There are material contradictions in the statements of the PWs. PW-2 Rana Muhammad Iqbal SST was declared hostile by the prosecution as he while appearing in the witness box categorically stated that "I know nothing about the occurrence of this case". PW-2 in his cross-examination by the learned DPP admitted that the original documents P1 to P9 mentioned in Ex.PA have been placed in challan No,1, meaning thereby , the photocopies of the said documents have been produced in this case by the learned trial Court, which even otherwise have no value in the eye of law. Despite the fact that the prosecution had not got any permission from the said Court with regard to production of photocopies of those documents. PW-3 Ch. Manzoor Ahmed/ complainant has admitted in his cross-examination that "The Scrutiny committees had sent the reports to the Government and the copies of said reports were sent to my office. I do not remember if, after receipt of reports from Scrutiny committees, any regular departmental inquiry was held or not. I do not remember the names who were the members of such scrutiny committees. I was verbally directed by the higher authority to get lodge the case ". It was crystal clear that no formal order or sanction was obtained by the complainant for registration of criminal case against the appellant and others, Muhammad Aslam Niazi DSP, investigated this case and found that the appellant has embezzled an amount of Rs,14,00,192.36/- but the fact remains that the findings of the Investigating Officer was not based on any documentary material. Moreover , none of the PWs have stated about the involvement of the appellant by way of preparing forged documents and as such this Court has constrained to hold that ingredients of section 420, P.P.C. has not been made out against the appellant. However , it is appropriate to consider section 420, P .P.C. which read as under:- Section 420: Cheating and dishonestly inducing delivery of property . "Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security , or anything which is signed or sealed, and which is capable of being converted into a valuable security , shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Ingredients of section 420, P .P.C. are as under:--
(1) Accused cheated the complainant.
(2) Accused did so dishonestly .
(3) There by induced the complainant:-
(i) To deliver some property to the accused or to some other person.
(ii) To make, alter or destroy the whole or any part of the valuable security or anything which was signed, sealed and which was capable of being converted into valuable security .
12. While considering the contents of the FIR and evidence of PWs, it appears that no allegation has been levelled against the appellant in this regard.
Whereas the offence falling under section 468 P.P.C. is concerned, it is to see that whether the appellant forged the alleged documents. Now , it is appropriate to incorporate the ingredients of section 468 P .P.C., which is as follows:--
(1) Document in question is forged.
(2) Accused forged it.
(3) In forging he intended that it shall be used for cheating.
Admittedly , the complainant (PW-3) has failed to state even a single word regarding involvement of the appellant in preparing of, forged documents or he was witness of the said alleged document. Hence, I am of the view that the ingredients of section 468, P.P.C. has not attracted against the appellant. There was no iota of evidence against the appellant that lie cheated dishonestly to the complainant and used forged document as genuine. So, I am of the view that the ingredients of sections 420 and 471, P.P.C. are not made out. In such circumstances, the appellant is not guilty for the offences under section 471 read with section 468, P.P.C. Moreover , it is settled law that intention of cheating to be discovered from the evidence and not from the recital or complaint. In the present case, the prosecution has badly failed to prove the cheating on the part of the appellant and the only complaint of the complainant could not be considered as gospel truth.
13. It is settled law that a person relying on a document is under obligation to prove the same. Article 72 of The Qanun-e-Shahadat Order , 1984 lays down that contents of documents may be proved either by primary or secondary evidence whereas, Article 73 of The Qanun-e-Shahadat Order , 1984 provides that primary evidence means the document itself produced for inspection of the Court and it is the requir ement of Article 75 of the Order ibid that the document must be proved except in the cases in which secondary evidence may be given. Though the said documents can be looked into for elucidation of certain facts but the same by no stretch of imagination can be regarded as evidence unless proved under the law at trial. Truth of contents of documents cannot be proved by merely producing the same for inspection of the Court within the purview of Article 2(c) (ii) of The Qanun-e- Shahadat Order , 1984, therefore, the documents upon which a party relies, at first, be placed before the Court and then to prove the document by calling witness(es). In this view, I am fortified by the law laid down by their lordships in "Abdul Qayyum v. Muhammad Rafique " (2001 SCMR 1651 ) "Zia-ul-Hassan v. The State " (PLD 1984 SC 192) and " Fazal Muhammad v . Mst. Chohara and others " (1992 SCMR 2182 ).
14. By now it is settled law that benefit of even a single doubt must be resolved in favour of the accused and his conviction cannot be sustained on such doubtful evidence adduced by the prosecution. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Akram v. The State " (2009 SCMR 230), at page 236, observed as under:-- "13....It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating. doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
15. In view of above discussion, I am of the considered opinion that charge against the appellant was not proved beyond reasonable doubt. Finding of convictions recorded by the learned trial court is not sustainable. Therefore, instant Criminal Appeal is allowed and convictions and sentences recorded by the learned trial court against the appellant through impugned judgment dated 30.03.2012 is set-aside. Resultantly , appellant Qari Muhammad Sadiq Jameel is acquitted of the charge . He is on bail, his sureties be discharged from their liabilities.
The record of the learned trial court be sent down, immediately .