This judgment will dispose of Criminal Appeal No,1217 of 2000 filed by Sana Ullah, appellant who was convicted and sentenced by learned Special Judge Anti Corruption, Lahore vide judgment dated 15-7-2000 as under:-- Six months' R.I. With a fine of Rs,1,000 and in default S.I. For 30 days under section 419, P.P.C. Six months' R.I. And to pay a fine of Rs,1,000, in default 30 days' S.I. Under section 420, P.P.C. Six months' R.I. And to pay a fine of Rs,1,000, in default 30 days' S.I. Under section 468, P.P.C. Six months' R.I. With a fine of Rs,1,000, in default 30 days' S.I. Under section 471, P.P.C. And Six months' R.I. And to pay a fine of Rs,1,000 and in default 30 days' S.I. Under section 165-A read with section 161, P.P.C. All the sentences except the sentences for non-payment of fine, were ordered to run concurrently.
The amount of fine if recovered was ordered to be deposited in the Government Treasury. Shabbir ul Hassan, co-accused of Sana Ullah was acquitted by the learned trial Court. His acquittal has been challenged by the State through Criminal Appeal No,1249 of 2000 which too was admitted to regular hearing. This appeal against acquittal alongwith Criminal Revision No,576 of 2000 filed by the State against Sana Ullah convict for enhancement of sentence shall also be disposed of through this single judgment.
2. Brief facts of the case are that Lahore High Court invited applications from the members of the Bar to fulfil the seats of Additional District and Sessions Judges in the Punjab. For that purpose, an application was received from Shabbir ul Hassan (since acquitted) an Advocate from Sialkot but the said application was not supported by the required documents including National Identity Card and the card issued by the Punjab Bar Council. Shabbir ul Hassan (since acquitted) was allowed to provisionally appear in the examination subject to furnishing his testimonials before 12- 3-1999. Shabbir ul Hassan did not provide the required documents. On 14-3-1999 the examination started at 9 a.m. And the candidate of Roll No,377 namely Shabbir ul Hassan was asked to provide the required testimonials and also show his identification but he could not provide the same and told that said documents were in his car, parked in the premises of the High Court. Shabbir ul Hassan was asked to bring the said certificates. The candidate Shabbir ul Hassan was accompanied by Farrukh Amin a Naib Qasid of the High Court but after a shortwhile the candidate namely Shabbir ul Hassan and the Naib-Qasid Farrukh Amin returned with the reply that the car was locked and the driver was not available. The candidate requested for allowing him to complete the paper and production of the documents after a shodwhile but the candidate was again, alongwith Farrukh Amin Naib Qasid, sent to bring the certificates but as disclosed by Farrukh Amin, the candidate could not find the certificates in the car and the driver told that the documents were with Shabbir ul Hassan who had gone for shopping towards Anarkali. Upon this, the candidate took Farrukh 1 min, Naib Qasid to the gate of High Court .Bar towards the Mall Road.
In front of the General Post Office (GPO) antoher person was standing with whom the candidate discussed for a while and then both of them offered Rs,2,000 to Farrukh Amin Naib Qasid and sought his help in the matter. The candidate whose actual name was Sana Ullah told that he was not Shabbir ul Hassan and in fact he was appearing in the examination in place of Shabbir ul Hassan, his senior Advocate. The candidate Sana Ullah tried to escape but the Naib Qasid caught him and produced him before Mr. Manzoor Hussain, Additional Registrar of the High Court. The matter was then reported to the Chairman of the Examination Committee and on the direction of the Chairman, the case was got dregistered.
3. After registration of the formal F.I.R. Exh.PA/1 on the written complaint of Manzoor Hussain, Exh.PA, the investigation of the case was taken over by Munir Ahmad, S.I. He prepared the site plan Exh.PB and took into possession currency notes P.1 and P.2 vide memo. Exh.PC. On the same day he also secured documents P.3 to P.7 vide memo. Exh.PD. The investigation was then taken over by Muhammad Naseeb, Inspector/S.H.O. (P.W.5) who on the basis of previous collected evidence, challaned the accused to face the trial.
4. At the trial, prosecution in order to prove its case, produced 6 witnesses in all. Then the learned S.P.P. Closed the prosecution case. Thereafter, statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded innocence. However, after conclusion of the trial, Shabbir ul Hassan was acquitted while Sana Ullah was convicted and sentenced as stated above.
5. Learned counsel for Sana Ullah appellant after having read the entire prosecution evidence and the statements of the convict recorded under section 342, Cr.P.C. Submits that the appellant having been charged with scheduled offences, case should have been registered and investigated by the Anti-Corruption Establishment and not the ordinary local Police. He submits that when the law provides a particular method to be followed, then that should be followed. To supplement his submission, learned counsel has placed reliance on PLD 1997 Lahore 692, 1996 MLD 1874 and 1999 PCr.LJ 1843. Elaborating his arguments, learned counsel submits that investigation of this case was conducted by P.W.1 who is an A.S.-I. And he while being cross-examined has admitted that he did not get any permission from the Court to conduct the investigation.
6. Learned counsel further submits that charge was defective. According to learned counsel, particular time and date and place of occurrence should have been mentioned in the charge as is required by section 222, Cr.P.C. Which facts were not mentioned in the instant case, hence the trial Court committed a material irregularity which is not curable. Adds that admittedly the appellant was not known to the P.Ws prior to the occurrence, therefore, identification parade was necessary but in the instant case, no identification parade was held. Learned counsel has relied upon PLD 1965 Karachi 131. Further adds that the documentary evidence which is primary evidence have not been properly produced by the prosecution inasmuch as signature of the appellant should have been taken and sent to Handwriting Expert for comparison in order to bring home the guilt but the prosecution has failed to follow the procedure on the subject provided by Articles 59, 60, 61 and 102 of the Qanun-e-Shandat Order, 1984. According to the learned counsel, photo copy should not have been taken into consideration after comparison. Learned counsel relies on 1982 PCr.LJ 658, 1990 MLD 46 and 1995 SCMR 246.
7. Learned counsel for the appellant next submits that both P.Ws. 3 and 4 namely Manzoor Hussain and Farrukh Amin have made material improvements in their statements before the trial Court, hence the improvements should not be given any weight and could not have been considered by the trial Court. Reliance has been placed on 1993 SCMR 550.
8. Further submits that the prosecution was unable to prove the charge against the appellant under section 165-A read with section 161, P.P.C.; so far as conviction under section 419, P.P.C. Is concerned, there is no specific evidence on record that the appellant was impersonating Shabbir Hussain and the witness produced in this regard namely Manzoor Hussain (P.W.2) is an officer of the High Court while Farrukh Amin (P.W.3) is subordinate of P.W.2 and that too without any identification parade; section 420, P.P.C. Was not applicable; there is no document on record to show as to which document was forged so section 468, P.P.C. Was not applicable and similarly the provisions of section 471, P.P.C. Were not attracted in the facts and circumstances of the case.
Learned counsel lastly submits that no incriminating evidence was put to the convict in his statement under section 342, Cr.P.C., therefore, this statement cannot be relied upon for awarding or maintaining the conviction. Concluding his submissions, learned counsel for the appellant submits that the prosecution having failed to prove its case against the convict, the appellant is entitled to clean acquittal.
9. On behalf of the State, which has filed Criminal Appeal No, 1249 of 2000 against the acquittal of Shabbir ul Hassan co-accused of the convict Sana Ullah and Criminal Revision No,576 of 2000 for enhancement of sentence of Sana Ullah, the convict, Mr. Muhammad Hanif Khatana, learned Additional Advocate-General submits that so far as objection of learned counsel for- the convict with regard to registration of the case and investigation thereof by the ordinary Police instead of Anti-Corruption Establishment is concerned, the law has been set at rest by a DB judgment reported as 2000 PCr.LJ 1995. Elaborating his arguments, learned Additional Advocate-General submits that the rulings cited by learned counsel for the convict are Single Bench judgments while report cited by him as stated above is a DB judgment and if there was any defect with regard to registration of the case and investigation thereof, after submission of the challan before the Special Judge Anti-Corruption, that was cured. Further submits that objection of learned counsel for the convict that the charge was defective is without any basis because whole case was put to the accused in the charge and omission of time and date has not materially prejudiced the case of Sana Ullah convict and Shabbir ul Hassan acquitted accused. The objection with regard to holding of the identification parade too is without any substance because Sana Ullah the convict appellant while solving his papers remained with the P.Ws. For more than three hours, so there was no need of any identification parade. According to the learned Additional A.-G. Identification parade is required where the accused slips away just after committing an offence.
10. So far as Shabbir ul Hassan acquitted accused is concerned, learned Additional Advocate- General submits that there is evidence on record that Farrukh Amin, Naib Qasid (P.W.3) remained with Shabbir ul Hassan for couple of minutes at the gate of High Court towards G.P.O. Where said Shabbir ul Hassan made a bargain with Farrukh Amin. In these circumstances,according to the learned Additional Advocate-General, identification before the trial Court was sufficient to connect the accused with the commission of offence. As to objection of learned counsel for the convict appellant with regard to documentary evidence, learned law officer submits that the documentary evidence, is only a corroborative piece of evidence and the same is being misinterpreted because firstly the same is not a photocopy; the photocopy is only, the admission form but the entries made therein are handwritten with signature; sometime due to shortage of the admission forms, photocopies of the same are being used; apart from the evidence of the Handwriting Expert, there is sufficient evidence to connect the accused with the commission of the offence, therefore, the provisions of Qanun-e- Shahadat Order, 1984 are not relevant to the facts and circumstances of the case. Further submits that without confrontation with the statements under section 161, Cr.P.C.
The improvements allegedly made cannot be taken into consideration; since there was no confrontation, so there were no improvements. Learned Additional Advocate-General adds that it is a case of its own nature; Judiciary is an important limb of the State and Bar is a part thereof, hence the accused have tried to dishonour the integrity of the Judiciary and act of such nature should be judicially noticed; the most important fact of the case is that in the natural process and routine the incidents occurred, that is, the admission form was received in its routine, now it cannot be said that the said application was not submitted by Shabbir ul Hassan or that was manoeuvred or forged because there was no bias or enmity of office of the High Court with Shabbir ul Hassan or for that matter with Sana Ullah; the form was received in routine in the office and was dealt with by Confidential Office, the application was not 'supported by the relevant documents, the Confidential Branch of the High Court issued two letters P.3 and P.4 through registered A.D., so it cannot be said that these letters were not received by Shabbir ul Hassan; in one of the letter P.3 roll number of the candidate was also conveyed; during the course of examination, there is evidence of Manzoor Hussain P.W.2 that the candidate was asked to produce documents for verification of his identity and it is also in evidence that the candidate along with Farrukh Amin (P.W.3) went to the car of the candidate, there was no driver in the car and he could not bring the required documents; again on the request of the candidate, he was allowed to complete his paper and then was again asked to provide the required documents; again P.W.2 Manzoor Hussain sent Farrukh Amin (P.W.3) and then it is also in the evidence of P.W.3 that driver was available in the car and he told that the documents were with Shabbir ul Hassan who had gone for shopping to Anarkali; the candidate took Farrukh Amin towards the gate of High Court Bar on the Mall Road side and found in front of the gate of G.P.O. That another person was standing with whom the candidate discussed for a while and then both the candidates as also the other person offered Rs,2,000 to Farrukh Amin, Naib Qasid and sought help in the matter; it is also in evidence that Shabbir ul Hassan gave two currency notes of one thousand each to Sana Ullah, the convict and those were then given to Farrukh Amin, Naib Qasid; the Naib Qasid Farrukh Amin thereafter took Sana Ullah to Manzoor Hussain, P.W.3 and it is also in evidence that Sana Ullah told that as a matter of fact he was junior to Shabbir ul Hassan and he has asked him to appear on his behalf, these P. Ws. 2 and 3 have got no enmity or prejudice against the accused; they are natural and independent witnesses; their testimony is credible and can be relied upon; according to the learned Additional Advocate- General even in a case of capital punishment, trustworthy evidence of a single witness can be relied upon and in such a case conviction was maintained by the Hon'ble Supreme Court. Learned Additional A.-G. Has relied upon PLD 1985 SC 144, 1991 PCr.LJ 826, 1977 PCr.LJ 870 and PLD 1980 SC
225. Mr. Muhammad Hanif Khatana learned Additional A.-G. Submits that it is settled law that Court has to see the quality of evidence and not the quantity of evidence. In support of his submissions he has relied upon Article 17.2(b) of the Qanun-e-Shahadat, 1984. Learned Additional Advocate-General further submits that motive in this case is important and it laid with Shabbir ul Hassan because if Sana Ullah had been able to clear the examination by impersonation, Shabbir Ul Hassan would have been the beneficiary and Sana Ullah being the junior of Shabbir ul Hassan has been made a scapegoat. Even at this stage, learned Additional A.-G.
Submits that he will have no objection if the signatures of the accused on the questioned documents are sent to Handwriting Expert but learned counsel for the convict Sana Ullah and Shabbir ul Hassan acquitted accused did not agree to it. Concluding his submissions, learned law officers submit that Shabbir ul Hassan should be convicted in accordance with law.
12. I have heard learned counsel for the parties and have gone through the precedents cited at the bar. First of all, I would deal with the basic objection of learned counsel for the convict Sana Ullah that the offences with which the accused stand charged being scheduled one, the case should have been registered and investigated by the Anti-Corruption Establishment and not the ordinary Police. I am already on record while sitting in the Division Bench comprising of myself and Mr. Justice Riaz Kiani (as his Lordship then was) in the case reported as Shafqat Hussain and another v.
Malik Sarfraz and another (2000 PCr.LJ 1995) wherein the view taken was that section 154, Cr.P.C.
Overrules the provisions of Anti-Corruption Establishment Rules, 1985 and .The ordinary police had got the powers to register the case and then investigate the same under the provisions of Cr.P.C.
The objection of the learned counsel for Sana Ullah convict is overruled.
13. As to objection of learned counsel, Sana Ullah convict with regard to framing of the charge or in other words the charge was defective, the provisions of sections 535 and 537, Cr.P.C. Provide a complete answer to that. The same for the facility of reference may be reproduced: "535. Effect of omission to prepare charge.---(1) No finding or sentence pronounced or passed shall 'be deemed invalid merely on the grounds that no charge was framed unless in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.
537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings.---Subject to the provisions hereinbefore contained, no finding, sentence order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account--
(a) of any error, omission or irregularity in the complaint, report by police officer under section 173, summons, warrant, charge, proclamations, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any misjoinder of charges, unless, such error, omission or irregularity has in fact occasioned a failure of justice."
In the instant case no injustice has taken place qua the convict and the acquitted accused because the case against them stands fully proved through the unbiased and natural statements of two P.Ws., manely, Manzoor A Hussain (P.W.2) and Farrukh Amin (P.W.3). In my view no prejudice whatsoever has been caused to the accused. The objection is therefore held to be without any force and the same is repelled. It was not a case of identification parade because such a parade is held where the incident occurs suddenly but in the instant case both the accused remained for quite some time with Farrukh Amin, P.W.3 and Sana Ullah specially remained in the office of P.W.2 Manzoor Hussain for more than 3 hours. Even the identification in the Court is sufficient to bring home guilt of an accused when the evidence is coming from an unimpeachable and unbiased source. In the case of Muhammad Yousaf Zai v. The State (PLD 1988 Karachi 539) it was held by their lordships of the Sindh High Court as under:-- "We may observe that there is no legal requirement to the effect that there should be an identity test of an accused person. If the eyewitnesses can identify the accused before the trial Court, that is enough."
The documentary evidence is only a corroborative piece of evidence and merely on the basis of any lacuna if any cannot be made a ground either not to record the conviction or set aside the same. Furthermore the application form for the post of Additional District and Sessions Judges, Exh.P.5 is the photo copy while Exhs.P.3 and P.4 are the original documents. The mere fact that the application form was the photocopy and not admissible in evidence cannot be pressed into service for setting aside the judgment of conviction. At this stage, I may advantageously reproduce Article 164 of the Qanun-e-Shahadat Order, 1984: .
"164. Production of evidence that has become available because of modern devices, etc.--In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques. I have no cavil with the law laid down on the subject in the precedents cited by learned counsel of the convict but this case has its own peculiar facts. The improvements allegedly made by P.Ws. 2 and 3 without confrontation cannot be taken into consideration. There is no contradiction with the usual statements."
It has come on record in evidence that when Farrukh Amin (P.W.3) went alongwith Shabbir ul Hassan to bring the documents from the car which was parked in the High Court premises, it came to light through the mouth of the driver that Shabbir ul Hassan having the documents had gone to Anarkali for shopping and it was only then that it came to light that the person who was appearing in the examination was not Shabbir ul Hassan and in fact was Sana Ullah and that Sana Ullah was junior of Shabbir ul Hassan. So, it is proved that in fact the whole game was being played by Shabbir ul Hassan acquitted accused and Sana Ullah was only a lever to take his evil design to its logical end. P.W.3 Farrukh Amin remained with Shabbir ul Hassan for a couple of minutes at the gate of High Court toward G.P.O. Where Shabbir ul Hassan made a bargain with Farrukh Amin.
Thereafter, Sana Ullah. Convict-appellant also admitted before the P.W.2 that he had come to appear in the examination in place of his senior Shabbir ul Hassan, Advocate Sialkot. In the instant case, Manzoor Hussain, Additional Registrar examined as P.W.2 and Farrukh Amin, Naib Qasid examined as P.W.3 are the natural, independent and impartial witnesses. There is not an iota of evidence on record to show any bias or partiality against these witnesses. Their credibility is beyond any doubt and no reason exists to disbelieve their testimony. In .The administration of criminal justice even a single witness whose credibility is beyond any doubt can be relied upon for recording conviction against an accused. Reliance can be placed on 1971. SCMR 530. The motive laid with Shabbir-ul-Hassan who if had been able to complete his game, would have been appointed for the post advertised. But he unfortunately has been acquitted by the learned trial Court. He being senior of Sana Ullah should have taught him in a better way instead of asking him to indulge in such type of heinous offence. The guilty conscience of the accused Sana Ullah and Shabbir ul Hassan is clear from the fact that their learned counsel did not accept the offer made by learned Additional Advocate-General even before this Court to send the signatures on the questioned documents to the Handwriting Expert for comparison. Taking into consideration the overall facts and circumstances of the case, I am fully convinced that the prosecution has been successful in proving its case against Sana Ullah and Shabbir ul Hassan, accused. Section 420, P.P.C. Is not attracted in the instant case, so the conviction and sentence recorded against Sana Ullah convict appellant under the said section is set aside and his conviction and sentence under the remaining section is maintained with the result that the appeal filed by Sana Ullah convict appellant challenging his conviction is dismissed. He be taken into custody to serve out his sentence as he was released on bail by the learned trial Court. The provisions of section 419/34, P.P.C. Are fully applicable to this case. Shabbir-ul-Hassan acquitted co-accused against whom Criminal Appeal No,1249 of 2000 filed by the State has been admitted to regular hearing is convicted under section 419/34, P.P.C. And sentenced to three (3) years' R.I. And a fine of Rs,20,000 in default 3 months' R.I. He is also convicted under section 468/34, P.P.C. And sentenced to three (3) years' R.I. With a fine of Rs,20,000 in default 3 months' R.I. Shabbir- ul-Hassan too is convicted under section 471/34, P.P.C. And sentenced to one year's R.I. With a fine of Rs,10,0(X) in default one month's R.I. The recovery of Rs,2,000 having been proved by 'the prosecution through the evidence of P.Ws 2 and 3 Shabbir-ul-Hassan is also convicted under section 161/34 read with section 165-A/34, P.P.C. And sentenced to three (3) years' R.I. With a fine of Rs,20,000 and in default 3 months' R.I. All the sentences would run concurrently but with the benefit of section 382-B, Cr.P.C. He shall be taken into custody to serve out his sentence. Since Criminal Revision No,576 of 2000 filed by the Sate for enhancement of sentence of convict Sana Ullah has not been admitted to regular hearing therefore, the conviction and sentence recorded against him by the learned trial Court is maintained and revision petition is dismissed. Before parting with this judgment I may observe that Sana Ullah, the convict has been made a scapegoat by his senior Shabbir ul Hassan to appear on his behalf in the examination for the appointment of Additional District and Sessions Judge who under the law enjoy the appellate jurisdiction as well as hold the original trial in a case of capital punishment. To allow such-like persons to, become the Judges through dubious devices would be an act to erode the majesty of justice and it would reflect the nature of justice which they would, part to the people.