1. Two criminal appeals--one filed by Ibne Masood (Criminal Appeal No.11 of 1984) and another filed by Nooruddin Memon (Criminal Appeal No.13 of 19841--were heard together and disposed by short order dated 10-4-1986 for reasons to be recorded separately. Following are reasons in support of the said short order.
2. Both the appeals arose from one and the same case, the brief facts of which are narrated as follows. In May, 1979 accused Noruddin was working as Sub-Registrar, Karachi and accused Ibne Masood was working as clerk under him. On 13-5-1979, Sanchey Khan (hereinafter referred to as aggrieved person) accompanied by Sawoor Khan, clerk of K. M. C. Went to the accused 's office for registration of the rectification of the lease-deed. Accused Ibne Masood charged the aggrieved person Rs.226.50 as registration fee for two copies of the deed and gave him two receipts for Rs.103.25 each--one for the aggrieved person himself and another for the K.M.C. He was told by the accused to collect the registered documents on 4-6-19797 'which he did accordingly. On examining the documents he found that instead of Rs.113.25 charged from him for each copy of the lease deed, only Rs.13.25 was mentioned in the said document. He thus realized that Rs.200 were recovered from him in excess. He, therefore, made an application to the Anti-Corruption Police and also approached accused Masood for return of the excess amount. The said clerk returned him the excess amount in instalments. However, the Anti-Corruption Police registered a case on the basis of the aggrieved person's application and after due investigation both the accused were placed on trial. Although charge was framed against them under sections 409, 468, 477-A/34, P.P.C. Read with section 5 (2), Act 11 of 1947, the learned Special Judge Anti-Corruption by his judgment dated 30-1- 1984 convicted the accused only under section 468134, P. P. C. Read with section 5 (2), Prevention of Corruption Act, 1947 and sentenced them to undergo R.I. For six months and pay fine of Rs.200 each or in default R.I. For one month. They were acquitted of other charges. Both the accused have questioned the correctness of the said judgment by separate appeals as mentioned above.
3. Five witnesses have been examined in support of the prosecution case. Sanche Khan (P.W.3) is the Star witness of the prosecution. It was obviously on his motion that, the case was initiated. He has stated in his evidence that on 13-5-1979 he went to the Sub-Registrar's Office for registration of the lease-deed and paid Rs.226.50 to accused Masood, clerk as registration fee as per the latter's demand. His statement further goes to show that the said clerk prepared two receipts--One for him and another for the K.M.C.'s representative Sawoor Khan, and took him to the Sub-Registrar who after verification from him about the payment also signed the receipts. According to him on 4-6-1979, as desired by the accused, he went to the above office again for collecting the registered documents which were handed over to him. On return to his house he examined the documents minutely when it was revealed to him that Rs.200 were overcharged from him, as instead of Rs.113.25 charged from him, for each receipt amount of Rs.13.25 only was shown in the deed as paid by him. On this discovery, he made application to the Anti-Corruption Police and also approached Masood clerk for return of the excess money. He has stated that the excess amount was ultimately returned to him by the said clerk.
4. The conviction of both the accused under section 468/34, P.P.C. Clearly shows that they have been found guilty for making forgeries. It seems the receipt that was given to the aggrieved person at the time of his payment of registration fee and the counterfoil of the said receipt retained in the Sub-Registrar's office were allegedly forged. I have examined both these documents. It appears that figure Rs.103.25 has been converted into figure Rs.13.25 by overwriting. On careful perusal of the initial application made by the aggrieved person to the Anti-Corruption Police and his statement recorded in the Court, it would appear that it is not his case that the aforesaid two documents were tampered with by the accused. His allegations are that on comparing the receipt which was given to him on payment of registration fee with the registered lease deed, he noticed that the actual fee for registration as mentioned in the deed was Rs.13.25, though as per receipt he was charged Rs.113.25. That is to say that excess amount of Rs.100 was recovered from him for each of the two receipts. However, the receipt given to him carries the original figure of Rs.103.25 and not Rs.113.25 allegedly recovered from him. Even if it is assumed that he has mentioned Rs.113.25 as the amount recovered from him through oversight though actual amount recovered from him was Rs.103.25 as was originally mentioned in the receipt, still it is nobody's case that the original amount, whatever it may be, as given in the receipt was tampered with and was changed into Rs.13.25 by over writings.
5. If Sanchey Khan's case as unfolded in his initial application made to the Anti-Corruption Police as well as in his statement subsequently recorded in the Court were held as proved, the accused would be guilty of the cheating punishable under section 420, P. P. C. Because by the alleged misrepresentations of the accused, Sanchey Khan was made to believe that the registration fee payable by him was Rs.103.25 and not Rs.13.2b and, therefore, he parted with the amount of Rs.103.25 and paid the same to the accused clerk. In that case the question of tampering of the receipt and its counterfoil would not arise. It would look quite natural that if Sanchey Khan was really overcharged, the receipt given to him would show the inclusion of the excess amount whereas the counterfoil retained in the Sub-Registrar's Office, would show the actual amount due to be paid. In other words the receipt delivered to the aggrieved person would carry the amount he had paid to the clerk (i.e. Rs.103.25 or 113.25) and the counterfoil would show the amount actually due (i.e. Rs.13.25). In such a case how the question of changing of the figure in either of the above documents would arise?
6. But somehow neither the charge of cheating under section 420, P.P.C. Was framed against the accused nor were they convicted for the said offence. Instead they were convicted under section 468/34, P.P. C. For the tampering of the above two documents.
7. First of all it may be repeated that the prosecution case as initiated on the motion of Sanchey Khan was not of tampering of the aforesaid documents but was of overcharging (i.e. Cheating) of the aggrieved person. How and at what stage the tampering of the documents was detected so that the accused were made to face that charge has remained unexplained. After delivery of that original receipt to Sanchey Khan it obviously remained in his possession until he produced the same before police during investigation of the case. Since the figure given in the receipt included the excess amount, at least Sanchey Khan was not expected to change it to the figure of actual amount (Rs.13.25) due from. Therefore, the question would arise how then the figure shown in the receipt which was in his possession was changed by making over writings therein. In any case it is difficult to believe that the figure in the document which remained in possession of the aggrieved person could be changed by the accused who had no access to the same. Even Sanchey Khan has not said so in his statement in Court.
8. Another important witness produced by the prosecution is Ghulam Abbas (P .W.4), the Handwriting Expert. He too does not say that overwriting made in the receipt is in handwriting of any of the accused. Although accused Masood has admitted that the original writing of the receipt in question is in his hand, he has denied having made the overwriting therein. The interesting part of the case is Sanchey Khan's admission in his cross-examination that when the receipt was given to him for the first time he had checked it up and had found it to be for Rs.13.25. How then did he discover the inconsistency in-between the figure mentioned in the receipt and that given in the lease deed? Thus there is absolutely no evidence to prove the tampering of the receipt f given to Sanchey Khan, much-less the alleged tampering having been made by any of the accused.
9. As for counterfoil of the receipt, it does not appeal to reason that false figure of Rs.103.25 was first mentioned in it as also shown in the receipt delivered to Sanche Khan. Even if the accused had dishonest intention of cheating Sanchey Khan, they would take care to keep their record straight. It was more probable to show the wrong figure tallying with the amount exacted from the aggrieved person in the receipt given to him rather than the counterfoil which was the permanent record to remain with the accused. On the contrary the accused would enter correct figure in the counter- foil to make it appear that the amount actually due from the aggrieved person was recovered from him. In any case there is no proof that the figure shown in the counterfoil was subsequently changed by the accused. No witness claims to have seen any of the accused tampering with the figure given in the counterfoil. Even Handwriting Expert referred to above has not F given his opinion about the overwriting on the counterfoil. Merely because the counterfoil was in custody of the accused Masood would not automatically prove that the tampering with the figure given therein was made by him.
10. For above reasons I am convinced that the prosecution have failed to prove that the alleged forgeries in the receipt delivered to Sanchey Khan and its counterfoil retained in the Sub-Registrar's Office were made by any of the accused. Accordingly the appeals filed by both the accused were accepted and the accused were acquitted.