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Case No. 148 of 1984, decided on 29th October, 1984.

‑‑‑S. 249‑A‑‑Penal Code (XLV of 1860), S. 471‑‑Tampering of Prize Bond‑‑Neither original letter from Security Printing Corporation of Pakistan, saying that digit in number of disputed prize bond had been tampered with, produced nor expert who had given the; opinion put in witness‑box to prove alleged tampering and no such witness cited in challan‑‑Allegation that digits in number of disputed prize bond were forged not proved‑‑No useful purpose likely to be served in carrying on with further trial of case as there existed no probability of accused being convicted of offence under S. 471, Penal Code‑‑On evidence on merits of case, whole of which had already been recorded, commission by accused of offence under S. 471, P.P.C. not proved either directly or indirectly‑‑Accused acquitted to extent of offence under S.471, Penal Code in circumstances.

‑‑‑S. 540‑‑Summoning of witness‑‑Power of Court‑‑Court can summon any witness or document under S. 540, Criminal Procedure Code, but it cannot in doing so act as prosecutor nor can it fill in lacuna left by prosecution.‑‑[Witness].

Ijaz Anwar for Petitioner.

Sardar Nazar Hussin Dogar, Special Prosecutor for the state.

Date of hearing: 29th October, 1984.

The charge against the accused is that alongwith a claim application, dated 3‑3‑1980, for awarding him a sum of Rs.25,000 as prize, he produced on 3‑3‑1980 before State Bank Authorities a prize bond of rupees ten denomination, with forged number, namely, NH097483, on which a prize of Rs.25,000 had been declared by the State Bank of Pakistan. Lahore.

2. This case was originally tried by a Magistrate First Class. He had recorded evidence of two witnesses. Today I have recorded statements of four more witnesses. Now only statements of police officials are left to be recorded. They are not likely to say anything in respect of the factual, position of the prosecution case and have to depose only in respect of the investigation made by them. Since the evidence of al' the witnesses who have deposed in respect of the merits of the cast had been concluded. I feel it necessary, at this stage, to scrutinize the record to find out whether any useful purpose would be served by summoning the said witnesses of the police department and whether ultimately the trial is likely to result in the conviction of the accused person or not.

3. P.W. 1 Muhammad lqbal. Deputy Chief Manager, has produced a letter written by him to the Deputy Director F.I.A. for the registration of the case against the accused. The said original letter was returned to him and the photo copy was placed on the record as Exh. P.A. He also stated that Abdus Sattar accused had produced prize bond in the State Bank of Pakistan, Lahore, which had been found to be forged, inasmuch as, the digits given in the number of the said prize bond had been found to be changed. He produced for the inspection of the Court original prize bond which was returned to him after inspection and its photostat copy was retained on record as Exh. P.C./1 Muhammad Akram appeared as P.W. 2. He produced the original claim application, filed by the accused in the State Bank of Pakistan, which, according to him, was taken into possession by the police. Muhammad Subtain Shah, P.W. 3. is a formal witness who recorded the formal F.I.R. on the basis of the inquiry report made by Mr. Asghar Cheema, Inspector F.I.A. Safdar Abbas appeared as P.W. 4 and deposed that the prize bond, photostat copy of which was on record as Exh. P.C./1, as well as the original claim petition Exh. P.D. were submitted before him by the accused on 3‑3‑1980. Mahboob Elahi appeared as P.W. 5 and Khalid Masood as P.W. 6 to prove the production of claim application Exh. P.D. by Muhammad Akram, P.W. 2 before the police. This is the entire evidence so far recorded in the case. The remaining witnesses, as already stated, are of formal nature and have only to depose in respect of the investigation and have not to give any evidence in relation to the facts of this case.

4. The charge framed against the accused by the learned Magistrate is one under section 420/471, Pakistan Penal Code. The offence under section 420, Pakistan Penal Code, is not triable by this Court. So far as offence under section 471, Pakistan Penal Code is concerned, the necessary ingredient of the section is the proof that the document which had been used by the accused, by its submission to the State Bank of Pakistan, was forged. No witness has appeared who could give direct evidence that the prize bond produced by the accused alongwith the claim application was forged. No such witness has even been cited in the calendar of witnesses. Mahboob Elahi P.W. 5, has no doubt, stated in his evidence that he had made an inquiry from the Karachi Office of the State Bank of Pakistan as to whether the said prize bond which he had sent alongwith his letter to the said Karachi Office was genuine or not and in response to the said letter, a letter from the Security Printing Corporation of Pakistan had been received in the State Bank of Pakistan, saying that the digits in number of the said prize bond, photo copy of which is Exh. P.C./1, had been tampered with and the said prize bond contained some other number, However, neither the said original letter from the Security Printing Corporation of Pakistan had been produced nor the expert who had given that: opinion in the said letter has been put in the witness‑box to prove that the digits in the number of the said prize bond had been tampered with. As already stated, no such witness has been cited in the challan. Furthermore, it is recorded in the F.I.R. that genuine prize bond o said number had already been produced at Karachi Office by one Zubeda Ghulam Ali and she had already been paid prize of Rs.25,000. The said genuine‑ prize bond 6f correct number alongwith application for claim of prize of Rs.25,000 on said bond could have been taken into possession by the police and Mst. Zubeda Ghulam Ali and others from Karachi could have been produced to establish that genuine prize bond was one submitted by her and to prove thereby by implication that number of the prize bond submitted by the accused was forged. But even that had not been done. In my opinion, therefore, on evidence so far brought on record, the allegation that the digits in the number of disputed prize bond were forged had not been proved, and in these circumstances, it is no use carrying on with the further trial of this case.

5. It is true that this Court can summon any witness or document under section 540 Cr.P.C. but it cannot, in doing so, act as prosecutor nor can it fill in the lacunas left by the prosecution. It is best known to the prosecution as to why they did not take the said letter into possession and put it on the record of the case and why they did not cite the expert, who had given opinion in respect of forgery of digits in number of prize bond to establish that the said figure in the prize bond was forged. They must have after full consideration of the entire matter decided not to produce the said letter and the relevant expert as a witness in this case. Similarly, they must have desisted from putting on record the genuine prize bond of the said number and claim application filed at Karachi for grant of prize declared thereon and refrained from citing Mst. Zubeda Ghulam' Ali as a witness in the said case due to some defect or lacuna in the matter. In these circumstances, I do not think that I should take that extraordinary step of summoning all the said evidence which the prosecution had deliberately refrained from producing in this case.

6. In my opinion, therefore, it is no use proceeding further with the trial as there is no probability of the accused being convicted of the offence under section 471, Pakistan Penal Code. Since on evidence on the merits of the case, whole of which has already been recorded, commission by accused of offence under section 471, P.P.C. has not been proved either directly or indirectly. I acquit the accused under section 249‑A, Code of Criminal Procedure. This acquittal would, however, operate only to the extent of the offence under section 471, P.P.C. for which I have the jurisdiction to try the accused. The prosecution, may if so advised, arrange to prosecute the accused for offence under section 420, Pakistan Penal Code, in a Competent Court of law.

M.Y.H. Accused acquitted.

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