Nasim Hussain VS Ghulam Murtaza

Crl. Appeal No. 807/2007

Nasim Khan. Ghulam Murtaza etc.

10.01.7.2014. Mr. Ijaz Feroze, Advocate for the appellant. Mr. Ghulam Sabir Khan Kaifi, Advocate for the appellant (in Crl. Appeal No.831/2007). Mr. Iftikhar ul Haq Chaudhry, A.P.G. Mr. Abdul Sattar Khan Rajput, Advocate for respondent No.4.

Mr. Shahid Shaukat, Advocate for respondents No.1 to 3 and 5.

Through this single order, I propose to dispose of Criminal Appeal No.807 of 2007 filed by Nasim Khan titled “Nasim Khan v. Ghulam Murtaza etc” and Criminal Appeal No.831 of 2007 filed by Zahid Hussain titled “Zahid Hussain v. Ghulam Murtaz etc” as both the matters are arising out of one and the same F.I.R. and impugned judgment dated 12.4.2007 passed by Ch. Imtiaz Nadeem, Magistrate Section 30, Faisalabad whereby respondents No.1 to 5 have been acquitted of the charges levelled against them under sections 420, 467, 468, 471 P.P.C. vide F.I.R. No.273 dated 05.10.2005 registered at Police Station Kotwali, District Faisalabad.

2.Briefly, the proceedings against respondents No.1 to 5 commenced on the basis of a complaint submitted by Muhammad Saleem, Advocate, District Courts, Faisalabad on 04.10.2005 addressed to Sub Registrar City,

Faisalabad, alleging therein that Muhammad Khan, Deed Writer falsely got identified Nasim Khan son of Abdul Jabbar and got registered a fake and bogus power of attorney in favour of one Basharat Rasool. On which Peerzada Muhammad Khalid (PW-4)/complainant scrutinized the record of the power of attorney No.361/2004 dated 19.4.2005 and found that the power of attorney got prepared by Muhammad Khan, Deed Writer of Nasim Khan in favour of Basharat Rasool wherein identity card of Nasim Khan was found forged one and the person who was posing himself as Nasim Khan while appearing before the complainant (PW-4) was not real Nasim Khan and owner of the land. Said Muhammad Khan, Deed Writer with connivance and in furtherance of common intention of witnesses Ghulam Murtaza, Maqsood Ahmed by producing some other person as Nasim Khan instead of real Nasim Khan, by preparing forged National Identity Card duly identified by Muhammad Saleem, Advocate had committed the alleged fraud. On verification of Malik Muhammad Saleem, Advocate and witnesses, the power of attorney was verified by the complainant. Apprehending forgery, the complainant (PW-4) reported the matter through application (Exh.PC) on 04.10.2005 and on the basis of the complaint (Exh.PC), formal F.I.R. (Exh.PA) was chalked out and after registration of case, the Investigation was entrusted to Sajjad

Hussain, SI (PW-8) who arrested accused persons i.e. Basharat Rasool, Maqsood Khan and Ghulam Murtaza on 03.4.2006 and during investigation, copy of National Identity Card (Exh.PB) was recovered from possession of accused Basharat Rasool on 16.4.2006 which was taken into possession by the Investigating Officer through recovery memo Exh.PB. On 08.5.2006 the Investigating Officer also arrested accused Muhammad Ramzan. Having found the accused persons (respondents No.1 to 3 and 5) guilty, the Investigating Officer prepared report under section 173 Cr.P.C. and sent the same to the court of competent jurisdiction whereas Investigating Officer found Abdul Qayyum and Muhammad Khan accused innocent during the course of investigation. The learned trial court formally charge sheeted the accused persons (respondents No.1 to 3 and 5) to which they pleaded not guilty and claimed trial. The prosecution in support of the version produced as many as nine (9) witnesses.

3.First part of the occurrence in this case has come out from the statements of Peerzada Muhammad Khalid D.D.O. (R), complainant (PW-4), Abdul Kamal (PW-6), special attorney of Nasim Khan and Sajjad Hussain, SI (PW-8) is the Investigating Officer whereas Muhammad Rafique (PW-3) and Muhammad Khan the Deed Writer (PW-7) were witnesses of alleged extra-

judicial confession. The statements of rest of the prosecution witnesses are formal in nature. Whereas PWs, Khalid Pervaiz, (constable) and Muhammad Saleem Khan (constable) being unnecessary were given up by the learned Public Prosecutor on 10.02.2007. The learned Public Prosecutor vide his separate statement dated 07.3.2007 closed the prosecution evidence after tendering certified copy of power of attorney (Exh.PE).

4.The accused persons (respondents No.1 to 3 and 5 were also examined in terms of section 342 Cr.P.C. wherein all of them opted not to appear as their own witnesses in disproof of the allegations levelled against them rather Basharat Rasool (respondent No.3) opted to lead evidence in his defence. The accused persons denied the allegation and stated that they had been falsely involved in this case, whereas Basharat Rasool (respondent No.3) denied all the allegations and stated that he purchased the disputed plot from Nasim Khan and Nasim Khan got registered general power of attorney No.361/04 in his favour. Said Nasim Khan appeared before Peerzada Muhammad Khalid, Sub Registrar and Muhammad Saleem, Advocate identified him and thereafter Basharat Rasool sold the disputed plot to Babar Ali Sakindar through Zahid Hussain for a consideration of Rs.15,00,000/- and sale deed was registered in favour of Babar Ali Sakindar.

Later on, Nasim Khan got revoked general power of attorney. In defence, Basharat Rasool accused had produced certified copy of register stamp as (Exh.D2), certified copy of general power of attorney No.361/04 as (Exh.D3), certified copy of registered sale deed as (Exh.D4) and certified copy of stamp vendor regarding issuance of stamp paper for Abtalnama as (Exh.D5), photo copy of application to DCO as (Mark-A), photo copy of written reply to Sub-Registrar as (Mark- B), photo copy of Wakalatnama dated 22.3.2006 as (Mark-D), photo copy of Wakalatnama dated 30.5.2006 as (Mark-E) and power of attorney dated 17.10.2005 as (Mark-F) and closed defence evidence.

5.The learned trial court after evaluating the evidence available on record and in the light of arguments advanced from both sides, found that the prosecution has miserably failed to prove the allegations levelled against the accused persons (respondents No.1 to 3 and 5).

6.The learned counsel for the appellants have contended that the judgment of acquittal of respondents No.1 to 5 is fanciful, arbitrary and against the facts which cannot be maintained in accordance with the established principles of criminal juristic; that the preparation of cheating, forgery and impersonation committed by the accused-respondents have been proved through

unimpeachable evidence entailing the conviction and sentence; that both the appellants have been deprived of their considerations amounting to Rs.15,00,000/-; that the prosecution evidence is consistent on each and every material point and the prosecution has established guilt of the accused through confidence inspiring and highly credible evidence but the learned trial court had passed the judgment of acquittal without any lawful jurisdiction.

7.Learned counsel for the respondents- accused has strongly urged that both the appeals are not maintainable as the same have not been filed by the competent person as both the appellants are not “aggrieved persons” in terms of section 417 (2-A) of Cr.P.C. The learned counsel for the respondents-accused contended that Nasim Khan did not join the investigation nor appear as witness before the learned trial court rather Abdul Kamal (PW-6) being special attorney of Nasim Khan appeared in the witness box and said PW also failed to produce special power of attorney and his testimony is based on hearsay as well as Zahid Hussain-appellant is just an ordinary witness and his interest is not involved in the matter, so under section 417 (2-A) of the Cr.P.C. he cannot file appeal against acquittal.

8.Learned counsel for the respondents have contended that the documents which were produced before this Court, were not produced before the Investigating Officer or before the learned trial court and the same cannot be taken into consideration as the same were not cross- examined by the accused nor the same were put to them in their statements under section 342 Cr.P.C.; respondents No.4 was not charge sheeted by the learned trial court nor he was acquitted and as such to his extent, both the appeals are not maintainable. Lastly the learned counsel for respondents submitted that the judgment of acquittal passed by the learned trial court is based on proper appreciation of evidence and prayed for dismissal of appeals.

9.I have carefully considered the submissions made on behalf of the learned counsel for the parties and have gone through the impugned judgment and record available.

10.First of all I would take up Criminal Appeals to the extent of Abdul Qayyum who is respondent No.4 in both the appeals. From the perusal of record it reveals that neither Abdul Qayyum, respondent No.4 was charge-sheeted nor he was acquitted from the charge by the learned trial court vide the impugned judgment dated 12.4.2007, so both the appeals to the extent of

Abdul Qayum, respondent No.4 are hereby dismissed being not maintainable.

11.From the contents of F.I.R. it reveals that Peerzada Muhammad Khalid D.D.O.(R)/PW(4) reported the matter to the police against the forgery and preparation of forged power of attorney after receiving an application from Muhammad Saleem, Advocate. According to the accusation levelled in the F.I.R., Muhammad Khan, Deed Writer got verified power of attorney on the basis of forged National Identity Card and impersonation of Nasim Khan. Neither Nasim Khan, appellant joined the investigation who was directly affected as per contents of F.I.R. nor he himself appeared in the witness box being affectee of forged power of attorney to support the case of the prosecution. It is also relevant to mention here that Nasim Khan-appellant is also not cited as a witness in the calendar of witnesses. As far as, the genuineness of the power of attorney or otherwise is concerned, no opinion of the Handwriting Expert has been obtained or record of National Identity Card was got verified from the concerned department/ NADRA by the prosecution to prove that said power of attorney was prepared on the basis of forged National Identity Card and that the offence was committed by the respondents. It is also notable that Nasim Khan-appellant himself had not reported the matter to the police. The

documents produced before this court cannot be taken into consideration as the same were neither produced nor exhibited in evidence, as such documents could not be made basis for conviction. The solitary witness appeared on behalf of appellant side is of Abdul Kamal (PW-6), who is stranger to the facts and his statement has no evidentiary value. The alleged special power of attorney was also not produced in evidence. The evidence of PW-6 is based on hearsay and on alleged disclosure of accused. He during cross- examination deposed as under:-

This witness further deposed as under:- Neither the appellant-Nasim Khan join the investigation nor enter in the witness box to lead the evidence but authorized the special power of attorney holder to appear before Investigating Officer and court on behalf of the appellant. The question as to the whether thumb mark and signatures on the said power of attorney are forged or genuine. The special power of attorney holder cannot depose for the principal in respect

of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. I am inclined to hold that the appellant-Nasim Khan is not “a person aggrieved” as contemplated in sub section (2-A) of Section 417 Cr.P.C. The legal provisions contained in the Code of Criminal Procedure regarding filing of appeal in cases of acquittal of accused persons is reproduced for reference:-

417 Cr.P.C. Appeal against acquittal.

(1)Subject to the provision of sub- section (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.

(2)If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court.

(2-A) A person aggrieved by the order of acquittal passed by any Court other than a High Court may, within thirty days, file an appeal against such order.”

12.As far as appeal filed by Zahid Hussain- appellant is concerned, the appellant Zahid

Hussain has not been deprived of any of his legal right and he only appears as ordinary witness, accordingly the appellant-Zahid Hussain does not come within the purview of an aggrieved person, hence he is not entitled to file the appeal against acquittal.

13.As far as merits of the case is concerned, there is nothing on the record to implicate respondents No.1 to 3 and 5 with the commission of alleged offence. The learned trial Magistrate has discussed the entire evidence but there is nothing in this case which could be deemed to be arbitrary, capricious, fanciful or against the record to warrant interference in the judgment of the acquittal.

14.For what has been discussed above, both these appeals having no merit, are hereby dismissed.

(AALIA NEELUM)

JUDGE

Approved for reporting.

Hamid/*