1. The appellants along with to other persons Ali Mohammed and Roshanali were tried by the learned Sessions Judge, Dadu for the offences under sections 420, 465, 468, 471 and 170, P. P. C. Read with sections 34,114 and 109, P. P. C. Ali Mohd. And Roshan Ali were acquitted while the appellants were convicted under the various sections and sentenced to undergo R. I. For 1 year and pay a fine of Rs.
2. 100 or in default to undergo R. I. For 1 month under each count, ordering the sentences to run concurrently.
3. The prosecution story is that on 16-10-62 the appellants went to Sevo Jamali village Taluka Johi District badu and, personated as officers of the. Settlement Department. Mohibali appellant pretended that he was the Settlement Officer, Dilshad, Mohd. Nawaz and Mohd. Khan Khuhawar pretended that they were clerks, Mohd. Khan Mugheri pretended that he was peon in the.
4. Settlement Office at Dada. They told the villagers that they had come there to auction the various evacuee shops and preference would be given to local occupants, on the recovery of half of the amount at the spot while the balance would be paid after 8 months. Appellant Amariullah was known to the villagers while the remaining appellants were not known.
5. Thereafter the appellants held the auction. Ghulam Hussain complainant, and witnesses, Ghulam Rasul; Mohd. Khan, Haji Khair Mohd., Haji Jharido, Haji Ghulam Mohd. And Mohd. Moosa gave the bids and purchased the respective shops. They also paid their respective shares of the half of the auction price and thereby they paid Rs. 3,880 to the appellants. The auction sheets were prepared and the same were either signed or thumb marked by the auction-purchasers. Thereafter the appellants left in the jeep in which they had come.
6. Later, somehow or the other they thought that they had been cheated. Consequently on the second or third day of the auction they approached the Headmunshi and 3rd Class Magistrate, Johi as well as the Settlement authorities and they were informed that those were forged documents. Consequently, on 19th. October 1962 an application Exh. 59 was made to D. S. P., Dadu.
7. He called for the report from the S. 1. P. On inquiry it was found that cognizable offence was committed. The S. I. P. Made the report dated 20th October 1962., Subsequently on 30th October 1962 the first report was lodged.
8. The police resumed the investigation. Amanullah was arrested on 6-11-62, Mohd. Nawaz, Dilshad and Mohd. Khan Khuhawar were arrested on 7-11-62, Mohib Ali appellant was arrested on 8-11-62, Mohd. Khan Mugheri appellant was arrested on 15-11-62. Thereafter the various tests were held. On 9-11-62 appellants Mohibali, Mohd. Nawaz, Dilshad and Mohd. Khan Khuhawar were put to identification test through Mohd. Khan, Haji Jhando, Haji Khair Mohd., Allahwarayo, Dittal, Mohd.
9. Anwar, Haji Ghulam Mohd., Ghulam Rasul, Dilawar Khan, Mohd. Mooso Muhammad, Haji Hashim and Miandao, who succeeded in picking out the appellants who were put to test. Mashirnama Exh.
10. 65 was prepared. On 20th December 1962 Mohd. Khan Mugheri appellant was put to identification test through Mohd. .Khan, Haji Khair Mohd., Ghulam Hussain and Muhammad and he was picked out. Mashirnama Exh. 66 was prepared: On 28-11-62 appellants Mohib, Mohd. Nawaz, Dilshad and Mohd.. Khan Khuhawar were put to identification test through Ghulam Hussain, Bilawal and Mohabat and they were picked out. Mashirnama Exh. 66 was prepared. On the same day Mohd.
11. Khan Mugheri was also put to the identification test through Bilawal, Mohbat, Ghulam Rasul, Moosa, Shah Mohd., Haji Ahmed Dittal, Dilawar Khan, Miandad, Haji Ghulam Mohd., Allahwarayo, Haji Jhando and Anwar and he was picked out. Mashirnama Exh. 68 was prepared. All these tests were held in the presence of Mr. Mohd. Umer Baloch, 3rd Class Magistrate, Johi. The to acquitted persons Roshan Ali and Ali Mohd. Were also put to identification test: Roshan Ali was not picked out but the witnesses succeeded in picking out Ali Mohd.
12. The auction sheets alongwith the signatures and handwriting were sent to Mr. Hafizullah Butt, Handwriting Expert. It was found by him that the forms had been signed by Mohib appellant while the same were filled by Dilshad appellant and the acquitted accused Roshan. These forms are Exhs. 11 to 26.
13. After usual investigation the appellants were challaned. They proclaimed their innocence and denied the allegations made against them.
14. The prosecution examined Mr. Hafizullah Butt, Handwriting expert, Haji Mohd. Saleh clerk in the office of Deputy Collector, badu, Ghulam Hussain complainant, Ghulam Rasul, Mohd. Khan, Mr. Mohd. Umer Headmunshi and 3rd Class Magistrate, Johi, Haji Khair Mohd., Haji Jhando, Haji Ghulam Mohd., Mohd. Moosa, Mr. Ghumman Singh P. S. I. And Mr. Mohd. Ibrahim, S. H. O.
15. From the evidence it is clear that Ghulam Hussain, Ghulam Rasul, Mohd. Khan, Haji Khair Mohd., Haji Jhando, Haji Ghulam Mohd. And Mohd. Moosa were the persons who had purchased the shops at the auction and had been cheated. All of them stated that the appellants came to the village and pretended that they held various posts in the Settlement Department and had come there to auction the evacuee shops, giving preference to the local occupants, and further, that they would charge half of the price at the spot while the remaining half would' be paid later. The shops were auctioned and the same were purchased by them and they paid the half of the amount. Thereafter they left. They further stated that Amanullah appellant was already known to them while they did not know the remaining appellants. Subsequently the identification tests were held and the witnesses succeeded in picking out the appellants. These tests were held in the presence of Mr. Mohd. Umer Headmunshi and 3rd Class Magistrate who has fully supported the witnesses. Various mashirnamas were prepared to that effect. There is nothing on record to- discredit the testimony of the various witnesses. The identification tests which were held have not been assailed. It is established by the evidence of the Magistrate that all precautions were taken and the witnesses had no opportunity to see the appellants before the tests were held.
16. The learned counsel for the appellants criticised the evidence of some of the witnesses and, therefore, I would like to deal with these grounds in respect of the witnesses separately.
(1) Mr. Hafizullah Butt.-He is the Handwriting Expert. The auction sheets and the handwriting and the signatures of the appellants were sent to him. He had found that the forms bore the signature of Mohib while the same were filled by Dilshad appellant and the acquitted accused Roshanali. In connection with his evidence it was urged by the learned counsel for the appellants that his evidence was not believed by the learned Sessions Judge in respect of Roshanali vide para. 27 of the judgment and therefore, it could not be relied upon against` the to appellants. I find no force in this contention. Para. 29 of the judgment reads as under "I shall first take up the case of accused Ali Muhammad and Roshan, because, the evidence against them is not sufficient for holding them guilty. None of the seventeen witnesses had picked out the accused Roshan in the identification tests held in presence of 3rd Class Magistrate.
17. Therefore, accused Roshan cannot be held guilty although the Handwriting Expert's opinion is that, the specimen writings taken from accused Roshan were similar to the writings on the auction sheets. But this evidence of Expert alone would not be sufficient for the purpose of conviction of the accused Roshan as there is no corroboration to the evidence of Mr. Hafizullah Expert. I, therefore, hold accused Roshan not guilty and acquit him."
18. Thus it is not that the evidence was not accepted on the ground that it was incredible but since Roshanali was not picked out by any of the witnesses in the identification test the opinion of the Handwriting Expert alone was not found to be sufficient to record conviction. No fault can be found with this view taken by the learned Sessions Judge.
(2) Haji Mohd. Saleh.-He was ii clerk in. The office of the Deputy Collector, Dadu. He stated that Amanullah appellant came to him and got the auction notice of the Settlement Department typed from him. His evidence is also supported by the Handwriting Expert. In connection with his evidence it was urged that he was an accomplice. This objection is not acceptable. Appellant Amanullah was known to the witness who could not suspect that the appellant was getting those forms typed in order to personate as officer of the department or cheat some persons.
(3) Ghulam Hussain. -He was purchaser of one of the shops: The discrepancy appearing in his evidence is that according to his evidence he had picked out Mohib Dilshad, Mohd. Nawaz and Mohd. Khan khuhawar in the first test and Mohd. Khan Mugheri and Ali Mohd. In the second test while the mashirnama shows that in the first test Ali Mohd. And Mohd. Khan Mugheri were picked out while in the second test Mohib, Mohd. Nawaz, Dilshad and Mohd. Khan Khuhawar were picked out. I do not find this to be sufficient for rejecting his evidence. He has made the confusion on account of the lapse of the. The incident had taken place in October 1962 while he was examined in the Sessions Court in July 1967 i.e. Nearly after five years.
(4) Ghulam Rasul.-He was also one of the auction --purchasers who had named the parsons Whom he had picked out in the test. It was urged by the learned counsel for the appellants that he had stated that at the the of the first test be was shown four persons in a line. This statement cannot be read by itself but immediately in the succeeding line he stated that he was shown in all 35 persons out of them he picked out 4. Thus what he meant that he was shown four persons in a line was that he had picked out four persons and not that he was shown four persons in the parade.
(5) Mohd. Khan. He was also one of the auction-purchasers and related to Amanullah appellant.
19. His evidence shows that Amanullah is his sister's husband. This relationship has not been disputed.
20. No enmity has been alleged against him. It. Is inconceivable that he would falsely implicate his own brother---in-law. He had also correctly named the persons whom he, had picked out in the tests.
21. However, it was pointed out that he had implicated Roshan although he was not picked out by him in the identification test. This fact .Alone is not sufficient to exclude his evidence from consideration.
(6) Haji Khair Mohd. He was also one of the, auction --purchasers. He had correctly named the persons whom he had picked out in the respective identification tests. Nothing was pointed out against him.
(7) Haji Jhando.-He was also one of the auction-purchasers. He also correctly named the persons whom he had picked out in the respective tests. The discrepancy which was pointed out related to his evidence recorded in the committal proceedings. He stated that in the committal proceedings he had not seen the person who, was driving the jeep as he did not come to them. This is in respect of Ali Mohd. Who was said to be the driver and was acquitted. He further stated in the committal proceedings that one test was held and he was shown 40/50 persons in the parade and out of them he identified Mohib, Mohd. Khan, Ali Mohd., Mohd. Khan Khuhawar, Dilshad and Amanullah.
22. This discrepancy appears to be due to the lapse of the.
(8) Haji Ghulam Mohd.--He was also one of the, He correctly- named 'all the persons whom he had picked out in the respective tests. In connection with his evidence it was urged that he had, stated in the "committal proceedings that one test was held and he bad picked out 7 persons out of a line of 30 persons. My reply to this is the dame as in case of previous witnesses.
(9) Mohd Moosa.-He was also one of the auction---purchasers. He correctly named the persons whom he had picked out in the respective identification tests. However, in the committal proceedings he had stated that one test was held and he had picked out 6 persons. To this my reply is the same: Thus it is plain enough that there is no serious infirmity in the evidence of the various witnesses to discredit their testimony. They hail no reason to falsely implicate the appellants. No enmity has been alleged against them, nor there is any motive for false implication. Amanullah appellant was riot only known to the witnesses but he was brother-in-law of Mohd. Khan witness. The other appellants were not known and, therefore, the identification tests were held after their arrest in the presence of the Magistrate and they were picked out. It was found by the Handwriting Expert that the signature on the forms were of Mohib appellant while the writing thereon was of Dilshad. The witnesses also stated that Mohib had signed those forms. He had pretended himself, to be the Settlement Officer. I is further in evidence that the appellants were in the village holding, auctions for several hours and, therefore, "the witnesses had ample opportunity to see 'the appellants and retain the impressions .Gathered by them till the the of tests which were held without any the delay.
23. The offence was committed on l6-10-62 while the tests were held on 9-11-62, 28-11-62 and 20-12- 62.
24. In the circumstances, I have come to the conclusion that the appellants were rightly convicted. I, therefore, maintain the conviction and sentence passed against them and dismiss the appeal.
25. They should surrender to their bail to undergo the un-expired portion of the sentence.