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Criminal Revision No. 210 of 1962, decided on 21 s) November 1962.
, S. 468‑Thumb‑impression, on document alleged to be forged, found by finger‑print expert to be not decipherable ‑ Conviction based on mere surmises and conjectures, held, not proper‑Evidence Act (1 of 1872), S. 45.
‑Cannot be based on mere presumptions and surmises‑Conjecture suspicion, however grave, cannot take place of legal proof.
Mian Muhammad Yunas for Petitioner.
Abdul Rauf Khan on behalf of A. A. G. for Respondent.
Date of hearing: 21st November 1962.
Shaista Khan, son of Gulo Khan, aged 45 years, his brother Asat Malook, aged 55 years, his wife Mst. Mehr Jana, residents of village Landiwah, and Ghulam Daud son of Sherbaz, aged 35 years of Sarkati Michan Khel, were tried under section 468/ 34 P. P. C. Mst. Mehr Jana was further tried under section 419/511 P. P. C. Khan Zaman Khan, Magistrate, 1st Class, exercising enhanced powers under section 30, Cr. P. C., found all the four accused guilty under section 468/34, P. P. C. and sentenced them as under :‑
(1) Shaista Khan to R. I. for two years, and a fine of Rs. 200 or in default further R. I. for two months.
(2) Asat Malook to one year's R. I., and a fine of Rs. 100 or in default further R. I. for two months.
(3) Mst. Mehr Jana to imprisonment till the rising of the Court and a fine of Rs. 200 or in default six months' R. I. She was also convicted under section 419/511, P. P. C. and sentenced to a fine of Rs. 100 or two months' R. I. in default.
(4) Ghulam Daud to two years' R. I. and a fine of Rs. 200 or two months' further R. I., under section 468, P. P. C.
All the four convicted accused went up in appeal against their conviction and sentences, and the learned Sessions Judge acquitted Asat Malook and Ghulam Daud, by giving them the benefit of doubt, but maintained the conviction of Mst. Mehr Jana and Shaista Khan. Shaista Khan has come up on revision against his iconviction and sentence.
2. The prosecution case briefly is that Mst. Rambel Bibi, P. W. 6 (hereinafter to be referred to as complainant), sister of one Amin Khan, was owner of about 150 kanals of agricultural land, situated in village Nar Raza Khan. She allegedly married Sher Ghulam against the wishes of her brother and other relations. Sher along with the complainant went to Mianwali in search of livelihood, when they were informed by Abdul Muhammad (P. W. 4) that Shaista Khan had forged a general power‑of‑attorney purported to have been executed by the complainant in his favour under which he was given wide powers, including powers of making a gift and sale. On 14‑11‑60 a report, Exh. P. 4, was lodged by the complainant at Police Station Lakki, and Muhammad Azam Khan, A. S. I. during the investigation under section 156, Cr. P. C. took into possession the registered power‑of‑attorney dated 3‑11‑60 Exh. P. I, under which the complainant appointed Shaista Khan petitioner as Mukhtar‑i‑am. The power‑of‑attorney was produced on 3‑11‑60 for registration before Sayed Qasim Jan, Sub‑Treasury Officer, Lakki, by one Shaista Khan son of Gulo Khan, and Ghulam Daud, Lambardar purported to be one of the witnesses identifying the parties before the Sub‑Registrar, Asat Malook brother of Shaista Khan, purported to be one of the marginal witnesses of the power‑of -attorney. The power‑of‑attorney along with the thumb‑impressions of the petitioner, the complainant and Asat Malook was sent to the Finger‑Print Bureau, Lahore. The report dated 15‑4‑61 Exh. P. E/1 in regard to Asat Malook and Shaista Khan was as follows
"The impression marked as C/1 on the power‑of‑attorney (Exh. P. P) is identical with the left thumb‑impressions of Asat Maluk marked as I on his sample paper as per characteristic points of identity dotted in one of the left thumb‑specimen prints.
The impression marked as B/ I on the same power‑of‑attorney is not clear enough to permit of a comparison in its minor details. No opinion can be given on it."
The report dated 25‑2‑61 Exh. PE, in respect of Mst. Mehr Jana and Mst. Rambel Bibi is to the following effect:‑
"The impressions marked as A, B, C, D and E on the power- of‑attorney of 3‑11‑60 are identical with the right thumb impressions of Mst. Mehr Jana marked as I on her sample paper.
Points of identify have been indicated by means of red dots in the right thumb specimen prints.
3. Muhammad Yaqub Khan, Finger‑print Expert Bureau, Lahore, (P. W. 1) Sayed Qasim Jan, Naib‑Tehsildar, the then Sub- Treasury Officer, Lakki, (P. W. 2), Abdul Muhammad (P. W. 4), Haji Amir Muhammad petition‑writer, scribe of the power‑of- attorney Exh. P. 1, the complainant and Muhammad Azam Khan, A. S. I. were examined on behalf of the prosecution.
4. All the accused pleaded not guilty to the charge. Shaista Khan denied having presented the power‑of‑attorney Exh. P. I before the Sub‑Registrar, and he also denied having thumb‑impressed the power‑of‑attorney.
5. The learned trial Court convicted and sentenced the accused as already indicated. On appeal the learned Sessions Judge gave the benefit of doubt to Ghulam Daud and Asat Malook and acquitted them. He maintained the conviction and sentence of Mst. Mehr Jana and Shaista Khan petitioner. The learned Sessions Judge maintained the conviction of Mst. Mehr Jana on the basis of the evidence of Muhammad Yaqub (P. W. 1) Finger‑print Expert, who had stated that the impressions marked A, B, C, D, on the power‑of‑attorney dated 3‑11‑60 are identical with the right thumb‑impression of Mst. Mehr Jana marked as I' on the sample paper.
6. As regards Shaista Khan, the learned Sessions Judge maintained his conviction as he thought that since his wife Mst. Mehr Jana was proved to have falsely personated the complainant, it was presumed that she had done so at the bidding and connivance of Shaista Khan, her husband, and notwith standing the opinion of the Finger‑print Expert that the thumb impression, purporting to be that of Shaista Khan, was not decipherable, the learned Sessions Judge took it as proved that the thumb‑impression was that of Shaista Khan. In para. 12 of the judgment the learned Sessions Judge, while discussing the case of Shaista Khan petitioner observed :‑
"Having found that Mst. Mehr Jana had thumb‑impressed the power‑of‑attorney, showing herself as Mst. Rambel Bibi, the question of the determination of the case against Shaista Khan accused, who is the husband of Mst. Mehr Jana becomes rather easy. I agree that the opinion of the Expert about his thumb‑impression on the disputed deed is not helpful to the prosecution ; but neither it is helpful to the accused. The reason is that the Expert stated that he was not able to give any definite opinion one way or the other about it. However, in view of the fact that the executrix of the deed is Mst. Mehr Jana wife of Shaista Khan accused, that the deed is in his favour and for his benefit, that the Sub‑Treasury Officer, who registered the deed, wrote the name of Shaista Khan accused on top of his thumb‑impression, excludes all possible doubts about his guilt. It will be rather stretching an argument too far to say that some other unknown person joined hands with Mst. Mehr Jana, planned a conspiracy against Shaista Khan in which Mst. Mehr Jana accused was to suffer to the same extent and thumb‑impressed the deed under the name of Shaista Khan. In the first place, Mst. Mehr Jana would never have agreed even if her disagreement was the result of consideration for her self."
7. Mian Mohammad Yunas, the learned counsel for the petitioner complained that the prosecution has failed to bring home charge to the petitioner, and that, at any rate, the case against Shaista Khan was not free from reasonable doubt, and that the learned Sessions Judge had allowed mere suspicion to take the place of proof.
8. Mr. Abdur Rauf Khan, Advocate, on behalf of the State, on the other hand argued that the case against the petitioner was brought home to him, and the mere fact that the thumb‑impression of Shaista Khan was not decipherable, was not in the least availing to him when it was proved that his wife Mst. Mehr Jana had falsely personated the complainant, and her thumb‑impression on the power‑of‑attorney tallied with her right thumb‑impression. It was argued that the irresistible conclusion which followed from this was that Shaista Khan had actually presented the power‑of‑attorney for presentation and the case was, therefore, proved against him.
9. After giving the arguments addressed at the Barmy careful consideration, I have formed the opinion that the prosecution has not been able to bring home the charge to the petitioner, in that there is no legal evidence on the basis of which it could be held that the petitioner either presented the power‑of- attorney before the Sub‑Registrar or that the thumb‑impression on the power‑of‑attorney purporting to be that of one Shaista Khan was actually that of the petitioner. In the absence of any evidence to show that the petitioner actually presented the power -of‑attorney before the Sub‑Registrar and the evidence of the Finger‑print Expert that the thumb‑impression purporting to be that of the petitioner was not (sic) decipherable, there was no legal evidence to sustain the conviction of the petitioner, and the learned Sessions Judge has allowed mere suspicion to take the place of proof. It is well settled proposition of law that no man can be convicted on circumstantial evidence where the theory of his innocence is as likely as that of his guilt, and, therefore, if, on the facts proved, any other reasonable theory than that of his guilt can be built he must be given the benefit of doubt and acquitted. It is equally well established principle of law that, however morally convicted a Judge may feel as to the truth of a particular fact, unless there is legal proof of its existence, he cannot take it as proved, and conjectures and suspicion, however grave, cannot take the place of proof, and the Court's decision must rest not upon suspicion, however grave, but upon legal grounds established by legal testimony. In the instant case, the circumstantial evidence against the petitioner is not incompatible with the innocence of the petitioner.
10. For all the foregoing reasons, I accept the revision petition, set aside the conviction and sentence and acquit the petitioner. He is on bail. His bail bond is cancelled.
K. B. A./A. H. Petition accepted.
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