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1964 Criminal Appeal No. 209 of 1960, decided on 30th May 1864.
Ss. 476 & 476‑B Appeal under S. 476‑B filed before but admitted for hearing after lodging of complaint by Court ‑ Appeal, having been admitted, deemed filed after lodging of complaint.
A I R 1946 All. 156 ref.
S. 476‑Expression "it is expedient in the interests of justice"‑Prosecution not to be ordered in interest of individuals‑Proceeding pending for number of years‑Interests of justice require that prosecution should not be ordered‑Court to hold preliminary inquiry before ordering prosecution.
S. 43‑Criminal trial‑Finding in civil proceedings‑Not binding on criminal Courts.
S. 476‑Person proceeded against‑An "accused"‑Prosecution not to be ordered unless conviction of accused virtually certain.
A I R 1935 Mad. 1044; Ganwar son of Bangui v. Emperor A I R 1944 Sind 155 and Lala Nand Lal v. Emperor A I R 1937 Lah. 867 ref.
Ss. 476 & 476‑B Appeal under S. 476‑B‑To be numbered and treated as civil appeal.
A. S. Pirzada for Appellant.
S. Murtaza Hussain for the State.
Ahmad Saeed and Muhammad Ali for Respondent.
Dates of hearing : 30th April, 1st, 4th, 5th and 7th May 1964.
There was a partnership between the appellant Abdul Wahid and Syed Abdul Haque Shah for carrying on business. Suit No. 24/52 was filed by Abdul Wahid against the appellant and Abdul Haque on 20‑7‑1952 for dissolution of the partnership and accounts. On 4‑10‑1952 the appellant filed his written statement. Along with this written statement he filed Exh. 188 a photostat copy of a resolution said to have been passed at a meeting held on 8‑8‑51 by the partners dissolving the partnership. The original of the photostat copy was later on produced in the Court by the appellant and is Exh. 109 in the case. Exh. 188 (109) consists of two columns after some matter written in the main body. Portion marked A' was found by Sub‑Judge and Ist Class Magistrate Mr. Akhund to be a forgery. The signatures of Abdul Wahid and Abdul Haque were admitted by them respectively although in case of Abdul Haque not without hesitation. There was an Appeal (No. 41 /56) filed by Fakir Muhammad in the High Court which was decided by the High Court against him on 1‑10‑59. The High Court also held the portion marked A' of Exh. 188 (109) to be a forgery.
While the case was still proceeding before the 1st Class Sub Judge, Mirpurkhas, Abdul Wahid filed Application No. 9/56 on 3‑5‑56 (before the decision of the suit) for prosecution of the appellant for forgery alleged to have been committed by him in respect of the portion marked A' on Exh. 188. On 27‑3‑1957 the 1st Class Sub‑Judge (Mr. Akhund) passed an order staying the consideration of the application till after the decision of the High Court in Civil Appeal filed by Fakir Muhammad mentioned above against the decree of the Court. On 15‑11‑1959 (after decision of the High Court) Abdul Wahid made a fresh application for orders on Application No. 9/56 mentioned above. On 8‑3‑1960 the 1st Class Sub‑Judge (Mr. Abdul Wali Makhdum) passed an order that a complaint under sections 467, 471, P. P. C. be filed under his signature. The complaint was filed on 5‑5‑60. The present appeal was filed on 5‑4‑60 and was admitted on 13‑6‑60. No objection, however, was taken before me of the, appeal having been filed earlier than the date of the lodging of the complaint. The appeal having been admitted on 13‑6‑60 in law it shall be deemed to have been filed after the complaint on 5‑5‑60.
I have heard at great length the learned Advocates for the parties and the learned counsel for the State. I allow the appeal and direct the withdrawal of the complaint on the following facts and grounds:
It is not expedient in the interest of justice that the prosecu tion be filed against the appellant. It has taken now more than 4 years that the appellant has been under the anxiety of the proceedings pending against him. Mr. Pirzada relied on A I R 1946 All. 156 in support of his contention. It was argued by the learned Advocates for respondents Abdul Wahid and Abdul Haque Shah that the delay was not occasioned on account of any fault of the respondents and that delay was no ground for not allowing the prosecution. The fact, however, remains that the prosecution is ordered in the interest of justice and not in the interest of B individuals. Interest of justice required that a person be not prosecuted if the proceedings have been pending against him without proceeding for a long number of years.
The prosecution has to be ordered in the interest of justice and not in the interest of the plaintiff or a party. In the present case the original application Exh. 9/56 was made by Abdul Wahid for prosecution of the appellant on 3‑5‑56, and no orders were passed on it. A fresh application for reviving the late application was made on 15‑11‑1959, after the appellate decision of the High Court. The order for prosecution of the appellant was passed on 8‑3‑60, i.e. more than 4 years after the application Exh. 9/56 and a little less than 4 years after the decision of the suit by the Civil Judge on 24‑8‑56 and about 5 months after the decision of the appeal by the High Court on 1‑10‑59. The important point to be considered is that Mr. Akhund had not considered it necessary to order prosecu tion at the time of the decision of the suit on 24‑8‑56 although an application for the purpose was pending before him. Similarly the High Court when it dismissed the appeal of the appellant on 1‑10‑59, did not make any order about his prosecution. It was rightly urged by Mr. Pirzada for the appellant that both the Civil Judge and the High Court did not think it expedient in the interest of justice to order or file prosecution against the appellant which they could have done in view of the terms of section 476 or 476‑A, Cr. P. C. had the Courts chosen to do so. The point emphasised was that the present prosecution was ordered and the consequent complaint filed by a succeeding Civil Judge (Mr. Abdul Wali) on the request of a private party, namely, Abdul Wahid (plaintiff) who had made this application to satisfy his private grudge and perhaps to gain initial advantage by attempting to involve the appellant by making Application No. 9/56 against him before the Civil Suit. had been actually decided, and before any finding had been given by the Court on Exh. 188 (109) in the Suit, Mr. Pirzada also brought to my notice the fact that in the present, appeal both Abdul Wahid and Abdul Haque Shah had not been made parties by the appellant since it was the Court which had ordered prosecution of the appellant and so State was made a party. Both Abdul Wahid and Abdul Haque Shah were added as parties in the appeal pro ceedings at their own request. This was a further indication that Abdul Wahid and at his instigation Abdul Haque Shah were seeking to avenge a private wrong as contestants in the civil proceedings.
In view of the circumstances mentioned hereafter it was, in my opinion, necessary for the Civil Judge (Mr. Abdul Wali) to have held a preliminary inquiry before he ordered prosecution of the appellant. He was not the Sub‑Judge who had decided the suit He had not heard the parties nor their witnesses. The allegation of forgery of Exh. 188 (109) crept into the case through Abdul Wahid and Abdul Haque Shah slowly and bit by bit according to the exigencies of the occasion. Conduct of both of them during the proceedings has to be carefully noted. Photostat copy Exh. 188 was produced with a written statement on 4‑10‑52. Nothing was said about it by the respondents. On 7‑8‑53 Abdul Wahid, when confronted with this document, in his cross examination, did not deny its execution. He made an evasive reply that he could not say without looking at the original document if it was genuine or not. He said that the meeting had taken place and the resolution was passed on 10‑8‑51 and not on 8‑8‑51 (as in the document). He did not say whether one part of Exh. 188 was true and the other part (marked A') was false. The above evidence was revised and modified by him when he was cross‑examined again on 17‑11‑1955 when he said that the resolution was passed on 8‑8‑1951 and that the signature on that document was his signature. He did not allege in his cross‑examination that the document was a forgery. After his cross‑examination was over Abdul Wahid's Advocate Mr. Moolraj suggested to the Court and the Court put questions to Abdul Wahid on this suggestion. This is what the record shows:
"The portion marked in blue in Exh. 188 was not written when I signed it or any of parties signed it. This space was blank. There was no talk with regard to the contents of portion marked in blue."
It is fairly obvious to me that the learned Advocate for Abdul Wahid had already marked portion A' and by suggesting the reply he obtained it from Abdul Wahid. It was for the first time at this page and of his evidence that Abdul Wahid set up in re examination at the suggestion of his Advocate that the already marked portion was a forgery. No opportunity was afforded to the appellant to cross‑examine Abdul Wahid on this fresh evidence and fresh application of portion A' being a forgery. Abdul Wahid while admitting his signature on Exh. 188 added that he did not know how to read and write English. It will be difficult to believe this statement. The signature is in a firm and clear hand writing suggesting that the writer is well versed in writing English. It was rightly emphasised by Mr. Pirzada that P E by Mr. Abdul Wali the succeeding Civil Judge was necessary to enable the appellant to cross‑examine Abdul Wahid on his belated allegation of forgery of portion A'. He relied on A I R 1930 Cal. 282 and A I R 1917 All. 132, in support of his contention.
Similarly the conduct of Abdul Haque Shah is also worth noting. In his cross‑examination to the appellant's Advocate on 27‑11‑1953 Abdul Haque Shah could not say if Exh. 109 was in the handwriting of Fakir Muhammad nor could he say if it bore his signature. To a question at line 281 page 96 of the paper book (II part) when he was asked to produce Exh. 188 he admitted his signature thereon but was doubtful of the signature of Abdul Haque volunteered and said that the date of the resolu tion, 8‑8‑51 had been changed subsequently, i.e. from 10‑8‑51, date of the meeting. This was not the case of Abdul Wahid. He denied his signature on Exh. 188 in his re‑examination. The portion marked A' was introduced by Mr. Moolraj from this witness on 17‑11‑1955 when the witness stated that the portion marked A' was not there when the document was signed and that the space left there was blank. It was emphasized by Mr. Pirzada that it was Mr. Moolraj the Advocate for Abdul Wahid who set up and suggested for the first time the theory of forgery of only portion A' already marked by him in Exh. 188, to both Abdul Wahid and Abdul Haque Shah on 17‑11‑1955. There is much force in this argument.
The alleged forged portion on Exh. 188 marked A' consists of the following items:
(1) Six hundred bags of rice at Khokhropar have been pur chased by Abdul Wahid Khan for Rs. 300‑00 from the company and appropriated the amount himself after selling the same, and
(2) the amount of ten thousand rupees of Cotton of Subzali along with profit has been received by Abdul Wahid Khan.
(3) Four hundred bags at Karachi be sold by Fakir Muhammad and paid to the Bank towards loan."
Mr. Pirzada made the following submissions with regard to these three items of alleged forgery.
That there was the word of Abdul Wahid that this was a forgery against the word of Fakir Muhammad appellant that it was not a forgery. Originally 1,000 bags of rice were purchased from Civil Supplies Department at Karachi. 600 bags were sent to Khokhropar. The remaining 400 bags remained at Karachi. The plaintiff at page 75 of the paper book (No. 11) in his evidence speaks of appointing Sardar Khan munshi and sending him to Khokhropar to take delivery of 600 bags. He further stated that Fakir Muhammad did not sell these bags as had been promised by him and the bags remained in charge of plaintiff's munshi Sardar Khan. Abdul Wahid's evidence makes it clear that these goods were disposed of by his appointed clerk Sardar Khan and that Fakir Muhammad had refused to take the responsibility for the same. It is Abdul Wahid who had therefore prima facie received and appropriated the proceeds of 600 bags or was responsible for accounting for them. It was urged by Mr. Pirzada that since the dissolution had taken place by consent of the partners, it could be expected that Abdul Wahid would take the liability of accounting for these 600 bags.
Sabzali was examined by Abdul Wahid. He supported Fakir Muhammad and said that he had paid Rs. 10,000 to Abdul Wahid on account of these cotton pods.
There was a loan of Rs. 25,000 taken by the partners from the Sind Co‑operative Bank. Fakir Muhammad's case is that he had sold 400 bags to discharge that debt. Abdul Wahid has stated that the above was suggested to him but he did not agree. Thereafter Fakir Muhammad said that he would account for this sale price towards partnership account, he had agreed. Abdul Wahid also said that the debt was a personal debt of Fakir Muhammad and not the liability of the partnership. Abdul Wahid admitted that he did sign Exh. 108 dated 13‑6‑60 at page 88 of paper book (Part II) but he had signed it under mis representation and not as a resolution authorising taking of loan of Rs. 25,000 by the firm. He alleged that this exhibit was also a forgery. It is to avoid the effect of this exhibit and other communication in English that Abdul Wahid appears to have denied his knowing how to read and write English. Consider ing the evidence of Abdul Wahid in connection with this item of the forgery and Exh. 108 it creates a reasonable doubt in the allegation that this item or portion A Exh. 108 was a forgery.
It was urged by the learned Advocate for Abdul Wahid that all the 3 items under Exh. 188 were admissions by Abdul Wahid. This is not surprising since he was the financing partner and he was making admissions about his liability for accounting on these three items. It was also argued by the learned Advocate for Abdul Wahid that Exh. 188 was not produced in a case brought earlier under section 406, P. P. C. against Fakir Muhammad appellant (in which he was discharged). Fakir Muhammad has explained this by stating that he had supplied his Advocate with a copy of Exh. 188 in that criminal case but the Advocate had not produced it. Perhaps the latter did not think it necessary to do so. The order of discharge lends support to this explana tion, inasmuch as Fakir Muhammad was discharged without producing Exh. 188.
It was urged by the learned Advocate for Abdul Wahid that signature of Abdul Wahid is too close to the alleged forged writing from which he argued that the writing was inserted after the signature. The writing marked A' is on the line throughout and not in between the lines. The signature of Abdul Wahid is also on the line adjacent to where the writing ends. The closeness may be accidental since Abdul Wahid put his elongated signature on the next line as against Abdul Haque Shah and Fakir Muhammad who have signed much too below.
The finding of Mr. Ali Ahmad Akhund, or of the High Court or of Mr. Abdul Wali that Exh. 188 (109) was a forgery will no be binding on the criminal Court which has to come to an independent conclusion on the evidence recorded afresh by it during the course of the trial. It is, therefore, necessary to determine whether this is a fit case which should go for trial before a criminal Court. Mr. Abdul Wali, Civil Judge who sanctioned the prosecution and later filed a complaint appears not to have approached the case from a proper angle, as appears from his following remarks, in his order dated 8‑3‑1960:
"I am not to give benefit of doubt to any person as only an accused is entitled to such a right. Fakir Muhammad before me was not in the capacity of an accused but an opponent for proceedings under section 476, Cr. P. C."
Fakir Muhammad is an accused person without question for the purpose of application under section 476 since he is sought to be prosecuted for offences under sections 467 and 471, P. P, C. The Court has to consider before ordering prosecution whether, there is "any reasonable probability of prosecution ending in conviction". (A I R 1935 Mad. 1044). In Ganwar son of Bangui v. Emperor (A I R 1944 Sind 155) it was remarked that the Court will be very reluctant to cause a person to be placed upon his trial unless the inferences to be drawn against him are such as to amount to a virtual certainty of guilt. In Lala Nand Lal v. Emperor (A I R 1937 Lah. 867) where an inquiry before ordering prosecution had been held, the' High Court remarked that it was necessary for the Judge to find that the conviction of the accused was practically certain before he could direct his prosecution.
Mr. Muhammad Ali Saeed who appeared for Abdul Haque Shah had pressed the case on the same lines as were argued by Mr. Ahmad Said Khan. In what has been stated above, the grounds raised by Mr. Muhammad Ali Saeed have also been dealt with.
I am of the view that in the light of the above discussion it is not expedient nor in the interest of justice that the appellant be prosecuted for offences under sections 467 and 471, P. P. C. Under the circumstances of the case each party will bear its own costs. The appeal has been numbered and treated as having been filed on the criminal side, but as a matter of law it should have been treated as having been filed on the Civil side.
K. B. A.
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