Appellant Syed Hasan Hyder has been convicted by Mr. Mirza Arshad Beg, Additional Sessions Judge, Karachi for offences under sections 420, 467, 468 and 471, P. P. C. And sentenced to suffer R. I.
For to years and to pay a fine of Rs. 500.00 or in default to suffer R. I. For to months on each count, all the sentences to run concurrently.
2. The prosecution case in brief was that the appellant was at all material times working as Secretary of U. P. Mohajrin Association (hereinafter referred to as the Association). He met complainant Shabir Ahmed P. W. 1 in the year 1960 and asked him to get a plot in the Hassan Colony (hereinafter referred to as the Colony), of which the appellant was the Secretary. The appellant promised that he would get a plot to the complainant for R. 1,050.00 and showed him plot No. 24 on the basis of which the complainant gave him Rs. 750.00 by cheque (Exh. 8) on 2-5-1963 and later Rs. 300.00 by another cheque (Exh. 10) on 8-5-1963, The appellant thereafter gave him the agreement for sale, Exh. 9, executed in his favour by one Saeed Hassan allottee of plot No. 24. This was attested by the appellant before an Oath Commissioner. The complainant was, thereafter given the allotment order, issued originally in the name of Sayed Hassan but plot No. 23 was shown therein instead of plot No. 24. The appellant explained this as being due to change in the K. D. A.
Plans. In May 1964 the appellant was suspended from his post and P. W. Syed Taqi Hassan Naqvi brother of the complainant took over in his place. The fraud was discovered only in Decem--ber 1963 when the real allottee of the plot, namely, Sayeed Hassan P. W, 5 saw P. W. Taqi Hassan and informed him that neither he nor his brother had ever transferred either of the to plots to any one.
Sayeed Hassan also denied his signature on Exh. 9 and showed the real allotment orders to the witness. It was in these circumstances that the complainant realized that he had been defrauded and as his efforts to persuade the appellant to set things right failed he ultimately filed a criminal case against him on 14-3-19 4.
3. The defence of the appellant was one of denial and false implication on account of enmity with Mehdi Hassan. President of the Association and complainant's brother P. W. Taqi Hassan.
The appellant admitted that he was Secretary of the Colony and in that position he had accepted and cashed the to cheques, Exhs. 8 and 10 for Rs. 750 and Rs. 300 respectively from the com--plaint in return for Exh. 9, namely, the agreement for sale of plot No. 24 in the Colony which bore his identification of Sayeed Hassan's signature. His explanation before the committing Magistrate was as follows :- "The complainant and. His brother-in-law Ali Amam have been residing in Hassan Colony since long. They talked to Saeed Hassan, the allottee of plot No. 24 and settled the matter. In connection with "the completion of papers the said amount should remain with me until it is finalised. They gave me cheque, which I took when the papers were completed and that amount was handed over to Saeed Hassan, out of which Rs. 300 which was later on given by the complainant were included and given to Saeed Hassan, who handed over his papers to the complainant and he also gave a receipt regarding the receipt of the amount and he gave allotment of plot No. 24. The allot- -ment produced by the complainant before the Court is not the same, but the allotment is for plot No. 24 which has not been produced before the, Court."
At the trial the appellant stuck to his statement. He examined to witnesses in defence, these are Syed Zahirul Hassan Rizvi D. W. 1 and Sarkar Hassan, D. W.
2. The former was an honorary member of the Association and stated that in that position he had obtained some registers and documents from the accused. The other witness was Treasurer in the Society and stated that there was litigation between the to parties in the society and appellant Hassan Haider and the President of the Society, namely P. W. Syed Mehdi Hassan were fighting suits and cases in Courts against each other. The witness stated in cross-examination, that he was a defendant with the appellant in the suit for accounts as well as in proceedings under section 107/117. Cr. P. C. Pending against both, of them.
4. The most important point for determination in this appeal is whether Exh. 9 is a forgery. On this issue the, prosecution has led the evidence of Muhammad Saeed Hassan P: W.
5. Who stated that he was allottee of plot No. 23 in the Colony while his brother Mohammad Zahir Hassan P. W. 3 was allotted plot No. 24 there--of. The witness stated that he had never talked to the appellant for sale, transfer, or disposal of his plot and that the alleged sale deed Exh. 9 was not signed by him. The fraud was detected when complainant Shabir Ahmed met the brother of the witness and showed him Exh.
9. Thereafter the appellant offered Rs. 2,000.00 to the complainant for the sale of the plot but the latter refused. This witness .Has been fully corroborated by his brother Mohammad Zahir Hassan P. W. 3, who is an allottee of the other plot namely, plot No. 24. He produced receipts Exh. 17- 27 regarding payment made by his father Mahmood Ali Anwari for various instalments etc. Paid to the Association. Similarly Exhs. 28 to 39 are receipts regarding payments of similar instalments by his brother Mohammad Saeed Hassan in respect of, plot No. 23.
5. The case of the appellant however, was, and this has been vehemently contended by Mr. Zahoorul Haq, the learned counsel appearing on his behalf, that this Mohammad Saeed Hassan is a set up witness and has been made to implicate the appellant in a false case on account of enmity of P. Ws. Mehdi Hassan and Taqi Hassan with the appellant. While there is no doubt that some litigation is going on between the parties, I find nothing on record to substantiate the claim of the appellant in this respect Exh. 9 which admittedly bears the endorsement of the appellant in the following words :--- clearly shows that this document related to transfer of plot No. 23 which was originally allotted to Saeed Hassan s/o Mahmood Ali Anwari. Taqi Hassan P. W. 4, who succeeded the appellant as Secretary of the society produced the photostat copy, Exh. 43 from the Register of the Association and Hassan Colony showing the list of the members. He pointed out with clarity that although to persons of similar names, namely Saeed Hassan and Saeedul Hassan are mentioned but their parentage was different. This can be seen very easily from Exh. 43 itself. Another person master Saeed Hassan is "Abidi" by caste. In the list of members (Exh. 44) also there is only one Mohammad Saeed Hassan at Serial No. 49. It is significant that at Serial No. 48, the name of Mahmood Ali Anwari is mentioned. He was father of P. W. Zahir Hassan and after his death his plot reverted to his son.
There is no doubt that Syed Saeedul Hassan at Serial No. 165 and master Saeed Hassan at Serial No. 6 are different persons as Exh. 43 would show. Similarly P. W. Syed Mehdi Hassan, President of the Association stated that he knew P. W. Saeed Hassan personal--ly and that "of this name he is the only person as a member of our society . . . . . . There is no man of the name of S. Saeed Hassan in our Society except Mohammad Saeed Hassan." P. W. 8 Riazul Hassan stated the same in the following words :- "I see register Exh. 53 personal ledger. Personal ledger it is and one Mohd. Saeed Hassan s/o Mahmood Ali Anwari is the only person of this name on page 123."
6. The case of the appellant, however, is that Exh. 9 was executed by different Saeed Hassan who died on 31-5-1965. In support of this he produced a death certificate Exh. 4, issued by the Hyderabad Municipal Committee showing that one Saeed Hassan son of Mahmood Ali Noori died at Hyderabad on 31-5-1965. C. W. 1 Mohammad Shahan clerk in Hyderabad Municipal Committee, however, stated that this document was forged as word "Noori" was not in his handwriting; nor did such a word appear in the death register. The correct entry was as mentioned in Exh. 5 which was prepared on the basis of Exh.
6. All that Exh. 6 shows was that one Muhammad Hassan (particu-- lars not known) reported on 31-5-1965 that one Saeed Hassan son of Mahmood Ali resident of Liaquat Colony Hyderabad had died due to asthama without any treatment from any doctor or Hakim. It is conceded by Mr. Zahoorul Haq, the learned counsel for the appellant before me that such an information can be easily given by any person to the Municipal Committee who will proceed to enter the same in the register without bothering to, verify the same from authentic sources. I feel that this is precisely what has happened in this case. The complaint against the appellant was filed on 14-3-1964 but the name of his witness Saeed Hassan did not transpire till March 1965 when he gave an application for examining him. It Appears that before he could be examined or process issued against him the information was cleverly conveyed to the Municipal Committed informing them about the death of the person and the same name was mentioned in order to create a false but clever defence in an otherwise hopeless case based entirely on unimpeachable documentary evidence. It would indeed be a very strange coincidence that within a few weeks of the application the witness proposed to be examined therein should die, under such circumstances, of Asthama at the age of 40 years, without receiving any treatment from any doctor or Hakim. In this connection Mr. Zahoorul Haq, the learned counsel for the appellant also placed reliance on Exh. 65 which is an application given to the President purporting to be from one S. M. Aqil and requesting that the name of his relation Saeed Hassan son of Mahmood Ali be entered instead of him in the list of the members of the Association. The learned trial Judge very rightly examined Syed Mohammad Aqil Rizvi as Court witness No. 2. The witness completely disowned Exh. 65 and stated that it was a forged docu--ment. He further clarified that Saeed Hassan son of Mahmood Ali was not related or even known to him. This appears to be yet another device by the appellant to create a defence for himself.
7. In view of what has been stated above I have not the slightest hesitation, in holding that Exh. 9 is a forged document and that the entry in the death register was made on some false information which was given by the appellant; and that the trans--feree mentioned in Exh. 9 was none less than Mohammad Saeed Hassan son of Mohammad Ali Anwari P. W.
5. It is also estab--lished by documentary evidence that Saeed Hassan was the allottee of plot No. 23 and his brother Zahir Hassan was the allottee of plot No. 24. I have, accordingly, on hesitation in holding that the alleged sale deed Exh. 9 was a forgery.
8. In view of this finding that Exh. 9 is a forged document the rest of the case does not need much consideration. It is the admitted position that the attestation on this document was made by the appellant in the following words :- We have also on record the evidence of P. W. Syed Mehdi Hassan, President of the Association who was familiar with the handwrit--ing of the appellant as the latter had worked under him for a long the. This witness stated that the forged signature was also in the handwriting of the appellant. Mr. Zahoorul Haq, challenged this evidence on .The ground that P. W. Mehdi Hassan was trot well disposed towards the appellant, Although this may be correct, I think it is safe to accept the testi--mony of this witness as I have myself examined this signature with the admitted writings of the appellant with a magnifying glass.
After such examination under section 73 of the Evidence Act, I have not the slightest doubt that the words have been written in the same hand and by the same person who wrote the endorsement namely. The similarities in the words and are obvious. I have also compared the disputed writing with the admitted signatures of the appellant on the to cheques cashed by him, namely, Exhs. 8 and 10. On these to cheques the words are written exactly in the same manner as signature on Exh.
9 in view of this there is no doubt that it was the appellant who forged Exh.
9. In any view of the matter it is not necessary that the entire document should be proved to have been forged by a particular accused before he can be convicted for forgery. Sec--tion 463, P. P. C. Which defines forgery also contemplates making a part of a false document. Since I have come to the conclusion that the document Exh. 9 is forged and that the appellant put the endorsement thereon he is obviously guilty of forgery of a valu--able security for the purpose of cheating.
9. The evidence of P. W. 2 Mohammad Akram Khan, who was an officer in the United Bank shows that the to cheque were cashed by the appellant. It is not denied even by the appel--lant himself that he received a total amount of Rs. 1050 from the complainant in respect of the same plot which stands in the nom of Mohammad Seeed Hassan. It is, accordingly, obvious that the appellant received Rs. 1050 from the complainant on the basis of this false document which the complainant would not have done if he had not been so deceived. In this view of the matter the appellant also appears to have been rightly convicted for offences under sections 420 and 471, P.P. C.
10. The question of sentence, however, requires some con--sideration. It has been repeatedly laid down that where a subs--tantial sentence of imprisonment has been passed upon a convicted person it is not proper that in addition to such a term of imprisonment a sentence of fine should be imposed. I would accordingly set aside all the sentences of fine in this case. The substantive term of imprisonment also appears to be excessive as conceded by Mr. Murtaza Hussain, the learned counsel for the State. In view of this I would reduce this sentence on all the four counts from to years' R. I. To one of` R. I. For one year each. All the four sentences shall run concurrently.
11. With this modification in the sentences the appeal stands dismissed. The appellant is on bail; and must surrender to serve out the un-expired portion of his sentence.