' MUHAMMAD MUNIR KHAN, J.---Ghulam Samdani, Inspector (Police), Khalid Taqi, A.S.I. (Police), Khadim Hussain, A.S.I. (Police) and Tehsin (respondents Nos. 1 to 4) were tried by the learned Special Judge, Anti-Corruption (Provincial), Karachi:-
(i) Under section 218, P.P.C. For preparing false. Mashirnama of the recovery of one bottle of wine from Khurshid Ali Khan, Manager of the General Store owned by Dilawar Ali Khan, situate at Nursery Super Market, Karachi, in case F.I.R. No, 275/79 under Art. 3/4 of Prohibition (Enforcement of Hadd)
Order, 1979, Police Station Ferozeabad, Karachi; ' under section 342, P.P.C. For wrongfully confining Dilawar Ali Khan and Khurshid Ali Khan P.Ws. In false case F.I.R. No, 275/79, Police Station Ferozeabad, Karachi; and
(iii) under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 for accepting Rs,5,000 as illegal gratification from Nisar Mehdi Ali Khan (P.W.8) for providing facilities of food and bed to Dilawar Ali Khan in the Police lock-Up, who, vide judgment dated 21-12-1986 while acquitting them of the charges under section 342, P.P.C. And 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, convicted Ghulam Samdani, Khalid Taqi and Khadim Hussain (respondents Nos. 1 to 3) under section 218, P.P.C. And Tehsin (respondent No, 4) under section 218/109, P.P.C. And sentenced them to four months' R.I. And a fine of Rs,5,000 each or in defualt of payment of fine two months' R.I. Each.
2. On appeal, the learned High Court of Sindh, Karachi, acquitted them of the charge under section 218, P.P.C, on 27-3-1994. Hence this petition for leave to appeal by Mst. Tahira Dilawar and six others, the legal heirs of Dilawar Ali Khan P.W.
3. To prove its case prosecution produced as many as ten witnesses. Ahmad Shah (P.W.1) was the witness of the "Mashirnama" the subject-matter of charge under section 218, P.P.C. According to his statement, bottle of wine was not recovered in his presence from anyone. He only saw one bottle lying on the table of Ghulam Samdani, Inspector (respondent No, 1). He further stated that he was asked by Khadim Hussain A.S.I. (respondent No, 3) to sign one piece of paper, so he signed the written paper contents whereof were not read over to him. Khurshid Ali (P.W.2) while giving the background of the enmity of the accused/police officials stated that on the night between 17th and 18th August, 1979, he and Dilawar Ali Khan were arrested by Khalid Taqi (respondent No, 2) on the false charge of keeping a bottle of wine and were taken to Ferozeabad Police Station and confined there. He further stated that Nisar Mehdi Ali Khan (P.W.8) had told them that he had paid Rs,5,000 to Khadim Hussain accused for giving the same to Ghulam Samdani Inspector for providing facilities to him (Khurshid All Khan) in the police lock-up. Muhammad Aslam (P.W.3) has deposed about the motive of Ghulam Samdani to involve Dilawar Ali Khan and Khurshid Ali Khan falsely in the case.
Dilawar Ali Khan (P.W.4) while giving background of his strained relations with Ghulam Samdani Inspector stated that he and Khurshid All Khan both were arrested and confined in the police station in false case by the respondents and that Ghulam Samdani had received Rs,5,000 as illegal gratification through Khadim Hussain for providing them facilities in the lock-up. Syed Abdul Rauf (P.W.5) stated that on the orders of the Director Anti-Corruption he initiated open inquiry into complaint made by Dilawar Ali Khan against Ghulam Samdani and others and he found that Ghulam Samdani was really annoyed with Dilawar All Khan and got Khurshid All Khan and Dilawar Ali Khan arrested in a false case F.I.R. No, 275/79 and it also transpired during the course of inquiry that Khalid Taqi, A.S.I. Had prepared a false Mashirnama in respect of the recovery of foreign liquor from the shop of Dilawar All Khan and that Tehsin had signed that Mashirnama. Furthermore, Ghulam Samdani had received Rs,5,000 from Nisar Mehdi Ali Khan (P.W.8) as illegal gratification through Khadim Hussain A.S.I. Abdul Latif (P.W.6), Muhammad Amin (P.W.7) and Farman Ali (P.W.9) stated that after having arrested Dilawar Ali Khan and Khurshid All Khan from their shop, Khalid Taqi and other police officials had took them to the Police Station Ferozeabad and confined them in the police lock-up. Nisar Mehdi Ali Khan (P.W.8) has deposed about the payment of Rs,5,000 as illegal gratification made by him to Ghulam Samdani Inspector through Khadim Hussain, A.S.I. For providing Khurshid Ali Khan and Dilawar Ali Khan facilities in the police lock-up. Masood Ahmad Khan, S.I. (P.W.10) stated that Tehseen respondent was cited as a prosecution witness in as many as twenty cases of Police Station Ferozeabad, Karachi.
4. When examined under section 342, Cr.P.C., the respondents denied the charge. In defence, they produced as many as 25 witnesses.
5. Learned counsel for the petitioners vehemently contended that the judgment of the trial Court which had the advantage and opportunity to examine the demeanour of the witnesses has been upset without due appreciation of the evidence; that the High Court could not have rejected the evidence of Abdul Rauf (P.W.5) as he was not an interested witness; that the impugned judgment of the High Court is based entirely on the erroneous assumption of facts; that well-reasoned judgment of the trial Court has been set aside by the High Court without legal and factual justification and that from the statements of the prosecution witnesses it is established beyond reasonable doubt that Dilawar Ali Khan and Khurshid Ali Khan were arrested and confined in a false case and false Mashirnama was prepared by Khalid Taqi A.S.I. With the connivance/abetment of other respondents.
6. Having carefully attended to the arguments addressed by the learned counsel for the petitioners, we do not feel pursuaded to interfere with the judgment of the acquittal passed by the learned High Court. Since the trial Court had convicted the respondents under sections 218, P.P.C.
And 218/109, P.P.C. And they were acquitted of the other charges and no appeal or revision was filed against the acquittal of the respondents of the charges under section, 342, P.P.C. And section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, in the High Court, so we would confine ourselves only to the charge under section 218, P.P.C.
7. We would decline to interfere with the impugned judgment for the main reason that the Mashirnama, the subject-matter of the charge under section 218, P.P.C., has not been brought on the file of this case by the prosecution. This Court is not in a position to examine the Mashirnama.
Section 218, P.P.C. May be reproduced advantageously hereunder:-- "218. Public servant framing with intent to save person from punishment or property from forfeiture.--Whoever, being a public servant, and being as such public servant, charged with the preparation of any record or other writing, frames that record or writing in manner which he knows to be incorrect, with intent to cause, or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person, or with intent thereby to save, or knowing it to be likely that he will thereby save, any person from legal punishment, or with intent to save, or knowing that he is likely thereby to save, any property from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both."
8. The plain reading of the provisions reproduced above would show that in order to prove that the respondents had prepared incorrect record or writing the prosecution was obliged to bring on record of this case the Mashirnama allegedly prepared by Khalid Taqi A.S.I., because, unless the Mashirnama itself is brought on the file of the case and proved to have been prepared by Khalid Taqi respondent in accordance with the relevant provisions of Qanun-eShahadat, 1984, it is not possible to hold the respondents guilty of framing incorrect record or writing within the meaning of section 218, P.P.C. A writing may be proved in any of the following ways:--
(i) By calling and examining the writer himself,
(ii) by the evidence of a person who saw the document being written;
(iii) by the evidence of a person acquainted with the handwriting of the writer;
(iv) by comparison of the disputed writing with the admitted writing of the writer; and
(v) by expert evidence.
' The Mashirnama has not been proved to be in the handwriting of Khalid Taqi A.S.I., in any manner.
It may be mentioned that the word "handwriting" presumably includes both handwriting in general and signatures. The statement of Ahmad Shah (P.W.1) that on the asking of Khadim Hussain he had signed a written paper would not serve the purpose. Unless the Mashirnama itself was on the record and shown to the witness, it cannot be said with certainty that the written paper which Ahmad Shah had singed was the Mashirnama, subject-matter of the charge, and no other document. The Mashirnma was not written/prepared within the view of Ahmad Shah. No,doubt, Syed Abdur Rauf, D.S.P. (P.W.5) has stated that "it also transpired during the course of inquiry that accused Khalid Taqi prepared a false Mashirnama in respect of the recovery of foreign liquor from the shop of Dilawar Ali Khan" but this is only an opinion expressed by the Police Officer conducting the inquiry and is not a substantive piece of evidence.
9. Under Article 102 of Qanun-e-Shahadat, 1984, in all cases in which any matter is required by the law to be reduced to the form of a document, no evidence shall be given in proof of such matter, except the document itself or secondary evidence of its contents in which secondary evidence is admissible under the provisions of Qanun-e-Shahadat, 1984. In this case, neither original Mashirnama nor copy thereof has been produced in the Court nor circumstances justifying secondary evidence of the same as required under Article 76 of the Qanun-e-Shahadat, 1984 are available. The petition is liable to be dismissed on this score alone.
10. Even otherwise, no case for interference with the judgment is made out, in that the High Court has applied its conscious mind to the relevant evidence and has given cogent reasons for not relying on the prosecution evidence. It may be noted that the considerations for interference in judgment of acquittal are different from the considerations for interference in judgment of conviction. The Supreme Court will not interfere with the judgment of acquittal unless the same is perverse and [he reasons therefor are artificial and ridiculous. The impugned judgment does not suffer from these infirmities.
11. With the acquittal the presumption of innocence of the accused becomes double. We do not see any compelling reason to deprive the respondents of the benefit of double presumption of innocence which they have earned through their acquittal by Court of competent jurisdiction.
12. Accordingly, leave to appeal is refused.