' By his judgment and order, dated 11-7-1991, Special Judge (Central), N.-W.F.P. Peshawar convicted and sentenced Rehmatullah appellant to six months' R.I. and a fine of Rs.6,000 or in default S.I. for three months under section 468, P.P.C., six months' R.I. and a fine of Rs.4,000 or in default two months' S.I. under section 471, P.P.C. and six months' R.I. and a Fine of Rs.1,000 or in default S.I. for one month under section 5(2) of the Prevention of Corruption Act, whereagainst the convict filed Criminal Appeal No. 92 of 1991.
2. After going through the record the prosecution case was found mainly hinging upon the testimonies of Nazir Ahmad, Senior Clerk (P.W.4) and Gul Daraz Khan, Head Clerk (P.W.7). Nazir Ahmad (P.W.4) deposed that Amanullah father of the appellant submitted an application, photostat copy Exh.P.W.4/1 for the employment of his son, the appellant as Assistant Lineman in which he allegedly incorporated the qualification of his son Rehmatullah appellant up to Middle.
The witness stated that in pursuance to the said application, Superintending Engineer WAPDA addressed letter per Exh.P.W.4/2 to the XEN and the latter issued an appointment letter per Exh.P.W.4/3. He claimed that the appellant himself had produced before him his Middle pass education certificate per Exh.P.W.2/3 and that only after that his appointment letter per Exh.P.W.4/3 was issued. In cross the witness stated that he could not say if application per Exh.P.W.4/1 was or was not submitted by Amanullah, father of the appellant. He also did not know if the application submitted by Amanullah per Exh.P.W.4/1 was bogus or genuine. He firstly denied availability of documents pertaining to the explanation of Amanullah father of the appellant called for and explanation submitted by him from his record but later on he tendered his apology to the Court and copies of the explanation called for and the explanation submitted were placed on file, marked Exh.PX-1 which pertains to charge against Amanullah, father of the appellant that the appellant was appointed as Assistant Lineman in the employees sons quota as per his (Amanullah's) written application along which he has produced the Middle Certificate of his son which were matters of gross negligence and fraud on his part and he was called upon to show cause as why he should not be proceeded against under the Efficiency and Discipline Rules and another document per Exh.D.W.1/1 which pertained to Amanullah's explanation that in fact he has made an application, photostat copy marked 'A' and has mentioned therein that his son was Middle fail and that his said application was forwarded to Superintending Engineer for further action. On examination the document ExhA was found to contain the said facts with endorsements.
His father was not afterwards proceeded against and it appears that departmental proceedings against him were dropped. In his explanation his father had also stated that his son could otherwise get employment as Assistant Lineman in the quota reserved for the sons of the Linemen, Assistant Linemen etc. on the strength of Middle fail education and in support reference was made to a letter addressed by WAPDA Power Wing, Lahore to all Chief Engineers on 18-5-1973, stating that in respect of recruitment of Assistant Linemen the application of no less than Middle pass and not more than matric education requirement may be relaxed by the Superintending Engineers in exceptional cases of the sons of Linemen Grade 1, Grade 2 and Assistant Linemen. Letter per Exh.D.W.1/2 also stated that the condition of educational qualification in respect of recruitment of Assistant Linemen in not less than Middle pass may be relaxed by S.Es. in exceptional cases of the sons of Linemen-I and Linemen-II and Assistant Linemen. It thus stands to reason that appellant's father had in fact made an application for the recruitment of his son as Assistant Lineman in the quota of employees sons and he mentioned the qualification of his son, the appellant as Middle fail. There is a certificate per Exh.P.W.3/1 which reports the appellant to have studied up to 6th class and as such it stands established that the appellant was under Middle.
3. Further prosecution presented case at the trial that the appellant had represented to be Middle pass through his father per Exh.P.W.4/1. This would definitely not incur a criminal liability to appellant because then, assuming that Exh.P.W.4/1 was correct although not proved its execution on file, it was the appellant's father who had represented that his son was educated up to Middle, again not .Middle pass, and not the appellant himself. As such prosecution cannot be said to have brought home the charge of a criminal liability to the appellant.
4. Again P.W.4 may have stated that Exh.P.W.2/3 was presented to him by the appellant, but P.W.4 was the person who was not found a man of above board character. He has given false evidence at the trial, concealing some record from the Court for which he later on tendered his apology in the Court.
5. P.W.2 S.E.T. of Government Middle School Hassa did not state that Exh.P.W.2/3 was issued by him to the appellant. He stated that Exh.P.W.2/3 was not issued during his tenure or the tenure of his predecessor and that he did not know if Exh.P.W.2/3 was ever issued by any of his predecessors.
Thus Exh.P.W.2/3 does not appear to have been proved by the prosecution as to have been issued to the appellant or that he forged the document and that he had later on produced it before P.W.4.
During his examination P.W.4 was suggested that on the issue of appointment letter the employee submits his arrival report alongwith the relevant documents in the office of a Sub-Divisional Officer for record which he admitted as correct but then he denied the following suggestion that the appellant had not produced the original school leaving certificate before him, as being a clerk in the Office of XEN.
6. P.W.7 produced the original application per Exh.P.W.7/X-I allegedly submitted by Amanullah father of the appellant but the said application was not formally proved if it was in fact written and submitted by Amanullah, father of the appellant. Further the said application was found endorsed with a note underneath the seal of S.D.O. with no signature thereon. This Court would once again remark that even if there has been committed any crime per Exh.P.W.7/X-I, it was Amanullah, the father of the appellant and not the appellant himself who faced the trial on the charges.
7. In short this Court has found that the prosecution could not succeed by the evidence on record to bring home charges of fraud, forgery and using forged documents as genuine as against the appellant beyond all reasonable doubt. Rather this Court has found that the appellant has been subjected to the ordeal and hardship of malicious prosecution at the behest of some other adversely interested quarters, having entailed into the termination of his services and also the instant unwarranted conviction and sentences. The prosecution could at the most have some case against the appellant's father but it was found that even the departmental proceedings initiated against him have been later on dropped after the receipt of his reply to the allegations, may be, for want of substance in the case.
8. Resultantly this Court would accept the appeal, set aside the conviction and sentences and order acquittal of the accused of the charges. He is on bail and his bail bonds are, therefore, discharged.