PLJ 2022 Cr.C. (Note) 10
Prevention of Corruption Act, 1997 (II of 1947)--
----S. 5(2)--Criminal Procedure Code, (V of 1898), S. 22-A--Conviction and sentence--Challenge to--Benefit of doubt--Appellant as senior medical officer--Allegation of illegal gratification--Complainant brother was died in a family trip in a result of electronic shock & shifted to hospital, no post-mortem was conducted--Complainant got registered case against WAPDA employees for their negligence--Instant case was registered on a complaint made by Complainant with Anti-Corruption--Allegation levelled against appellant was that of receiving Rs. 2,00,000/- by way of illegal gratification for extending favour to WAPDA employees and that he issued two different/contradictory Medical Certificates showing different causes of death of deceased--Complainant during cross-examination candidly conceded that he levelled no allegation of receiving illegal gratification against appellant--None of documents was sent to Punjab Forensic Science Agency or some handwriting expert to confirm that those documents were in hands of appellant--Mark-A, B and C were admittedly Photostat copies--Their originals were not produced during trial--In first certificate, cause of death was electric shock and in second certificate cause of death as electric shock/fall from roof of bus--All these documents produced before trial Court by complainant and relied upon by trial Court for rendering impugned judgment are Photostat copies, original of which were not placed on file nor produced in Court for inspection of Court--There is no doubt that forged/vague documents may be made by resorting to modern techniques but to prove a document as forged one, it becomes incumbent upon prosecution to produce original for inspection of Court, so that Court may come to a positive and definite conclusion that document was forged--Prosecution has not been able to prove/establish its case against appellant beyond reasonable doubt was accepted appeal was set aside conviction/sentence of appellant, by extending benefit of doubt acquit him. [Para 11 & 13] A, B, C & D
PLD 1988 Karachi 502.
M/s. Tahir Mehmood and Muhammad Ayub Buzdar Advocates alongwith Appellant in person.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Malik Muhammad Saeed Mumtaz, Advocate for Complainant.
Date of hearing: 4.5.2017.
PLJ 2022 Cr.C. (Note) 10
[Lahore High Court, Multan Bench]
Present: Sardar Ahmed Naeem, J.
Doctor JALAL KHAN etc.--Appellants
versus
STATE etc.--Respondents
Crl. A. No. 539 & Crl. Rev. No. 305 of 2011, heard on 4.5.2017.
Judgment
Doctor Jalal Khan, appellant/accused of F.I.R. No. 32 dated 01.10.2009 under Section 5(2), Prevention of Corruption Act, 1947 registered at Police Station Anti-Corruption Establishment, Dera Ghazi Khan, lodged by Karim-ud-Din complainant was tried by the learned Special Judge Anti-Corruption, Dera Ghazi Khan. At the conclusion of the trial, vide judgment dated 16.06.2011, the learned trial Court convicted the appellant and sentenced him as under:
“Under Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to six months R.I. with fine of Rs. 10,000/-, in default whereof, further undergo one month R.I. Benefit of Section 382-B, Cr.P.C. was also extended."
2. The convict lodged Criminal Appeal No. 539/2011 against his conviction and sentence, whereas Karim-ud-Din (complainant) has filed Criminal Revision No. 305 of 2011 seeking enhancement of sentence awarded to the accused.
3. Precise allegation as mentioned in the application Ex. PA moved by Karim-ud-Din to the Officer Incharge Anti-Corruption Establishment, D.G. Khan against the appellant, who was Senior Medical Officer, Civil Hospital, Fort Manro, that his brother namely Muhammad Arif had gone to Fort Manro for recreation and died touching the line of LTV MEPCO lying on the ground. The appellant issued a report dated 06.08.2008 that death occurred due to electric shock but on 23.04.2009 he again issued second report that Muhammad Arif died due to fall from roof of bus. It was alleged in the application that the appellant after having received bribe from WAPDA employees made second report.
4. After receiving application against the appellant, preliminary inquiry was conducted and FIR was lodged. The matter was investigated and it was recommended to take departmental action against the appellant. The departmental authority disagreed with the recommendation of the Anti-Corruption Establishment, hence report under Section 173, Cr.P.C. was submitted. Formal charge was framed against the appellant to which, he pleaded not guilty and claimed trial.
5. The prosecution in order to prove its case produced as many as eight witnesses in all. Kalim Ullah Mujahid Inspector Special Branch (PW-1) on the basis of complaint Ex.PA drafted FIR Ex.PA/1. Irfan Farooq C.O. (PW-2) arrested the accused on 16.09.2010 and submitted challan before the Court. Riaz Anwar CO. (PW-3) investigated the case and recommended for departmental action. Ghulam Rasool Dispenser (PW-4) produced copies of indoor and outdoor registers before the I.O. who took the same into possession vide recovery Memo Ex.PC. Karim-ud-Din complainant (PW-5) supported the contents of the FIR. Rafique Ahmad (PW-6) corroborated the statement of the complainant. Hassan Raza Khakhi C.O. partially investigated the case. Shahzada Khan Daffadar (PW-8) investigated the case and recommended for cancellation of the FIR.
6. Learned ADPP gave up Sher Afgan PW being unnecessary and closed the prosecution evidence.
7. After close of the prosecution evidence, statement of the appellant under Section 342, Cr.P.C. was recorded. He denied the prosecution allegation and pleaded innocence. In answer to a question "why this case against you and why the PWs deposed against you", the appellant stated as under:
"Complainant is PW.5 and PW.6 Muhammad Rafique are real brothers and interested witnesses. Both the PWs only want to obtain money on the basis of black mailing from me. The discharge report in case FIR No. 2/09 P.S. Khar, has been disagreed by the Court and all accused have been summoned for trial. I am not involved in declaring WAPDA officials innocent and discharge report prepared by the BMP officials in the above referred case. I am innocent."
The appellant did not opt to appear as his own witness under Section 340(2), Cr.P.C. and after producing certified copy of petition under Section 22-A, Cr.P.C. Ex.DE, copy of order dated 17.02.2009 Ex.DF and copy of FIR Ex.DG close his defence evidence.
8 Learned counsel for the appellant contended that the prosecution miserably failed to prove its case against the appellant beyond shadow of reasonable doubt; that the prosecution could not prove the receiving of illegal gratification by the appellant; that Mark A and Mark B were not taken into possession by the Investigating Officer, rather produced by the complainant from his possession during the trial; that no evidence was brought on the file showing the appellant being author of Mark A and Mark B; that the learned trial Court failed to evaluate the evidence available on record in its true perspective; that the benefit of doubt was the vested right of the accused and it is settled by now that benefit of doubt even slightest is always resolved in favour of the accused.
9. Learned DDPP supported the impugned, judgment rendered by the learned trial Court.
10. I have considered the arguments raised at the bar and have gone through the record.
11. The appellant was performing as Senior Medical Officer, Civil Hospital Fort Manro, Dera Ghazi Khan. On 25.7.2008 the complainant along-with his family went to Fort Manro on a pleasure trip. Unfortunately, the real brother, of the complainant, namely, Muhammad Arif died as a result of electric shock, shifted to Civil Hospital and was declared dead. However, no post-mortem was conducted. Later on, the complainant got registered case against WAPDA employees for their negligence and an FIR under Section 322, PPC was registered at Police Station BMP, therefore, the cancellation of the FIR was recommended on the basis of Mark A which reflected that the deceased died by falling from roof of a bus. It may be mentioned that in the earlier report statedly issued by the appellant, electric shock was the cause of death. However, the appellant denied the execution of the said two documents.
The instant case was registered on a complaint made by Kaim-ud-Din with the Anti-Corruption. The allegation levelled against the appellant was that of receiving Rs. 2,00,000/- by way of illegal gratification for extending favour to the WAPDA employees and that he issued two different/contradictory Medical Certificates showing different causes of death of Muhammad Arif deceased. The complainant during cross-examination candidly conceded that he levelled no allegation of receiving the illegal gratification against the appellant. This fact was further confirmed by the Investigating Officer, who acknowledged that the complainant levelled no allegation of receiving illegal gratification against the appellant in his supplementary statement. The documents Mark A and Mark B were produced by the complainant from his own possession and the Investigating Officer have also admitted that those were not taken into possession vide recovery memo. There was no evidence on the file to prove that the appellant was the executant of those documents. He has denied the execution of those documents in his statement recorded under Section 342, Cr.P.C. However, the prosecution could not prove beyond shadow of reasonable doubt that Mark A was authored by the appellant. None of the documents was sent to the Punjab Forensic Science Agency or some handwriting expert to confirm that those documents were in the hands of the appellant. Mark-A, B and C were admittedly Photostat copies. Their originals were not produced during trial. Mark A was the first certificate statedly issued on 06.8.2008 whereas Mark B was the second certificate dated 21.4.2009. In the first certificate, the cause of death was electric shock and in the second certificate cause of death as electric shock/fall from roof of bus.
It may be pointed out that all these documents produced before the learned trial Court by the complainant and relied upon by the learned trial Court for rendering the impugned judgment are the Photostat copies, original of which were not placed on file nor produced in the Court for inspection of the Court. There is no doubt that forged/vague documents may be made by resorting to modern techniques but to prove a document as forged one, it becomes incumbent upon the prosecution to produce the original for the inspection of the Court, so that the Court may come to a positive and definite conclusion that the document was forged. In the case of "Moulvi Abdul Hameed vs. The State" reported as (PLD 1988 Karachi 502), it was held :
"the Court cannot order prosecution for the forgery on the basis of the photocopy of receipts unless original documents are produced before the Court.”
12. Since the trial judge has relied on the documents which were not admissible in evidence therefore, conviction order cannot be sustained in law.
13. In the circumstance, I am of the considered view that the prosecution has not been able to prove/establish its case against the appellant beyond reasonable doubt, I accept this appeal, set aside the conviction/sentence of the appellant, by extending benefit of doubt acquit him.
14. The appellant is present on bail and his bail bonds shall stand discharged.
15. For the foregoing reasons, the Criminal Revision No. 305 of 2011 filed by the complainant for enhancement of sentence is hereby dismissed.
(A.A.K.) Appeal accepted
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