Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 468/109‑‑‑Appreciation of evidence‑‑‑Record did not show that the payment of Rupees one lac in addition to dower was not the condition of the contract of marriage‑‑‑Best evidence in the form of fourth "Parat" of Nikahnama in possession of son of the complainant had been withheld and was not produced in Court to prove that entry in Column No.19 of the Nikahnama did not exist and that the same was inserted later in the remaining "Parats" of the said Nikahnama‑‑‑No evidence was even available on record to prove that who had made the alleged entry in the Nikahnama at a subsequent stage and at what time‑‑‑Accused, thus, were not connected with the commission of the offence and they were acquitted on benefit of doubt accordingly.
Malik Rabnawaz Noon for Appellants.
Malik Muhammad Nawaz Khan for the Complainant.
Qazi Ahmad Naeem Qureshi for the State.
Date of hearing: 22nd April, 1998.
SAKHAWAT HUSSAIN SHAH VS STATE1999 P Cr. L J 279[Lahore]Before Muhammad Nawaz Abbasi, JSAKHAWAT HUSSAIN SHAH and another‑‑‑AppellantsVersusTHE STATE‑‑‑RespondentCriminal Appeal No. 169 of 1997, heard on 22/04/1998.
‑‑‑‑S. 468/109‑‑‑Appreciation of evidence‑‑‑Record did not show that the payment of Rupees one lac in addition to dower was not the condition of the contract of marriage‑‑‑Best evidence in the form of fourth "Parat" of Nikahnama in possession of son of the complainant had been withheld and was not produced in Court to prove that entry in Column No.19 of the Nikahnama did not exist and that the same was inserted later in the remaining "Parats" of the said Nikahnama‑‑‑No evidence was even available on record to prove that who had made the alleged entry in the Nikahnama at a subsequent stage and at what time‑‑‑Accused, thus, were not connected with the commission of the offence and they were acquitted on benefit of doubt accordingly.
Malik Rabnawaz Noon for Appellants.
Malik Muhammad Nawaz Khan for the Complainant.
Qazi Ahmad Naeem Qureshi for the State.
Date of hearing: 22nd April, 1998.
JUDGMENT
Sakhawat Hussain Shah son of Ajaib Hussain Shah and War Mahmood son of Ghulam Muhammad appellants herein were tried for the charges under section 409/420/466/468/471, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, by the learned Special Judge, Anti‑Corruption, Rawalpindi, who vide judgment, dated 11‑11‑1997 convicting them under section 109/468, P.P.C. sentenced them to undergo R.I. for a period of four years each with a fine of Rs.20,000 each and in default of the payment of fine to undergo further R.I. for a period of one year each.
2. The appellants have challenged their conviction and sentence through the present appeal which is proposed to be disposed of through this judgment.
3. A case under section 409/420/466/468/471, P.P.C. was registered against the appellants through F.I.R. No. 154, date' 13‑8‑1993 at Police Station Saddar Barooni, Rawalpindi, on an application Exh.P.W.4/A moved by Azmat Hussain Shah complainant to the Senior Superintendent of Police, Rawalpindi. As per contents of the said application Syed Akhtam Hussain Shah son of the complainant having married with Mst. Asia Khatoon in March, 1986, left for the house of her parents in October, 1991, and did not return to the house of her husband till November, 1991. Syed Akhmat Hussain Shah on his return from Libya made an attempt for reconciliation but his marriage‑tie with Mst. Asia ended as a result of divorce. Sakhawat Hussain appellant allegedly in collusion with the Chairman of the concerned Union Council obtained an ex parte decree for maintenance. The complainant on coming to know about the said ex parte decree, after making a probe into the matter and found that Pert of Nikahnama in the custody of the Union Council was tampered with for obtaining the decree for maintenance. Precisely the allegation was that Column No. 19 of Nikahnama was left blank at the time of Nikah but the entry of Rs.one lac in addition to dower in the said column was subsequently inserted fictitiously. It was stated that Qazi Sami Ullah Nikah Registrar also confirmed the interpolation in the said Part of Nikahnama.
4. The case having registered through F.I.R. Exh.P.W.7/A, Imdad Hussain Shah, A.S.‑I. arrested Sakhawat Hussain on 14‑8‑1993. Thereafter, the investigation was conducted by Sikandar Baig, S.‑I., who took into possession Nikahnama Exh.P.W.i/B produced by Qazi Sami Ullah through recovery memo. Exh.P.W.9/A. Tariq Mehmood, Secretary, Union Council Renyal produced Pert Nikahnama Exh.P.W.5/A, which he took into possession through recovery memo. No.P.W.9/B. After recording the evidence of the witnesses andcompleting the formal investigation, both the appellants were challaned to face the trial.
5. Qazi Sami Ullah appearing as P.W.1 stated that out of four Perts, one was retained by Syed Riaz Hussain Shah, Advocate, whereas the remaining three being in his possession, were distributed one each to the Bride‑groom, the Secretary, Union Council and Nikah Registrar. According to him Column No. 19 of the Nikahnama was left blank at the titttc of performance of Nikah. He stated that Pert of Nikahnama in the custody of the Nikah Registrar was delivered to Zafar Mahmood, Secretary, Union Council through Tariq Mahmood Naib?Qasid, on his demand against receipt and at that time, Column No. 19 of the said Pert was blank. According to the witness, subsequently it transpired to him about the insertion of the entry to the effect that Bride‑groom was responsible to pay Rupees one lac besides the dower. Tariq Mahmood, Naib Qasid of the Union Council P.W.6, while appearing before the Court stated that on the direction of Zafar Mahmood appellant, he brought Nikahnama from Qazi Sami Ullah against a receipt EXh.P.W.I/A. Syed Taj Hussain Shah and Mukhtar Hussain P. Ws. claiming themselves the participants of the marriage stated that column No.19 of the Nikahnama was left blank at the time of performance of Nikah. Azmat Hussain Shah P.W.4, who is the complainant in the case supporting the prosecution case made a similar statement. Tariq Mahmood P.W.5, Secretary Union Council Renyal produced the Nikahnama with alleged forged entry before the Investigating Officer. He without supporting the version of the complainant stated that the entry in column No. 19 was in existence at the time when he took over the charge as Secretary, Union Council. The remaining witnesses namely Imdad Hussain, A.S.‑I. Sikandar Baig, S.‑I., Syed Arshad Hussain, D.S.P., Taifoor Akhtar, S.‑I. and Muhammad Saleem Constable also remained associated with the investigation. They made statements in confirmation to the extent of their association in the investigation. Qamar Ahmad Bhatti, Examiner Crime Branch, Lahore, while appearing in the witness?box proved his report pertaining to the Nikahnama Exh.P.W.5/A and Exh.P.W.I/B regarding the writings Exh.A./1 thereon and deposed that the said entry in column No. 19 Nikahnama in question was inserted later.
6. The appellants in their statements under section 342, Cr.P.C. denied the charges.
7. The learned trial Court placing reliance on the statements of the witnesses alongwith the report of the Handwriting Expert namely Qamar Ahmad Bhatti held the appellants guilty of the charge and convicted them accordingly.
8. The learned counsel for the appellant contended firstly that there is no evidence direct or circumstantial to connect the appellants with the commission of the offence under section 468, P.P.C. According to him, the prosecution has not been able to bring on record any evidence suggesting the entry of column No. 19 in the Nikahnama in question in the hand of any of the appellants.Secondly, that the copy of Pert Nikahnama in possession of Bride‑groom namely Syed Akhmat Hussain Shah was not produced in Court. Thirdly, the Nikah Registrar was not supposed to deliver the Pert Nikahnama to be retained by him to the Secretary, Union Council. He concluded that there being no proof of committing the forgery by any of the appellants, their conviction and sentence is based on presumption and conjectures.
9. Learned counsel appearing on behalf of the complainant and the State argued that the direct evidence of Nikah Registrar and the Naib Qasid of the Union Council regarding the delivery of the Pert Nikahnama to Zafar Mahmood appellant alongwith the report of the Handwriting Expert and his statement before the Court to the effect that the entry in column No.19 was later inserted was a strong proof of the fact that the mischief was done by Sakhawat Hussain, brother of Mst. Asia Khatoon for her benefit with the connivance of Zafar Mahmood the then Secretary, Union Council.
10. I have heard the learned counsel for the parties at length and also minutely perused the record with their help. The sole question requiring determination to fix the criminal liability of the appellants, if any, pertains to the entry of column No.19 in the Nikahnama in question. The assertion that the same was made subsequently to the performance of Nikah and was not a condition to the contract of marriage is not supported by any direct evidence on the record. The statements of the witnesses namely (1) Qazi Sami Ullah, (2) Naib Qasid of the Union Council and (3) the Handwriting Expert would not be relevant to explain the correct position. Qazi Sami Ullah deposed about retaining one Pert with him and the remaining three Peits Nikahnama were sent through Naib Qasid to Zafar Mahmood, Secretary of the Union Council. It is not understandable that how all the Perts of Nikahnama could be sent to the Secretary, Union Council, when as per his own statement only one Pert was to be given to the Union Council for record. He being custodian of one Pert was not supposed to deliver the same to any third person without the permission of the concerned parties. The inference would be that he was privy either to the alleged act of making entry in column No. 19 of the Pert or being in league with complainant party made statement that copy of Pert with him was also delivered to the Secretary, Union Council. Therefore, no credence can be given to the evidence of this witness to be a truthful witness. The Naib Qasid of the Union Council simply delivered the document in question to Zafar Mahmood appellant and, therefore, his statement except the delivery of the document is of no use and help to the prosecution. The statement of Handwriting Expert being the entry in column No.19 was different to that of the entries in the remaining columns of Pert of Nikahnama is not by itself a positive proof of the charge of forgery. The conviction on the basis of presumption that since the Perts in question were delivered to the Secretary, Union Council and the entries in the same were found by the Handwriting Expert in different hand, are placing reliance on the statement of the remaining witnesses that column No. 19 was leftblank on the day of marriage would not prove the change. There is nothing in the evidence of the witnesses that the payment of Rupees one lac in addition to the dower was not condition of the contract of marriage and instead their deposition was to the effect that column No. 19 was left blank. The column No. 19 having not filled by the Nikah Khawan or Nikah Registrar as the case may be, at the time of filling the Nikahnama after performing the Nikah would not be a circumstance to suggest that no such condition had arrived at between the parties at the time of marriage. The possibility of keeping open the column at the instance of the complainant side at the relevant time for some reason with some understanding is not ruled out. Be that as it may, the best evidence in the form' of fourth Pert of Nikahnama in possession of Syed Akhtam Hussain Shah son of the complainant was withheld and the same having not produced in Court in proof of the fact that the entry in column No. 19 in Nikahnama was not in existence and the same was insertad later in the remaining Perts, has led me to raise a legitimate presumption of not guilty in favour of the appellant.
11. The review of the evidence reveals that the appellants are not connected' with the commission of the offence. The alleged entry in column No. 19 of the Nikahnama statedly made at a subsequent stage having not proved that at what time the same was made and by whom has rendered the case of the prosecution of highly doubtful character.
12. In a nutshell the prosecution having failed to prove the charge against the appellants, this appeal is allowed. The conviction and sentence awarded to the appellants is set aside by giving them benefit of doubt and they are directed) to be released from jail forthwith if not required in any other case.
N.H.Q./S‑253/L ???????? ??????????????????????????????????????????????????????????????????????? Appeal allowed.
Sakhawat Hussain Shah son of Ajaib Hussain Shah and War Mahmood son of Ghulam Muhammad appellants herein were tried for the charges under section 409/420/466/468/471, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947, by the learned Special Judge, Anti‑Corruption, Rawalpindi, who vide judgment, dated 11‑11‑1997 convicting them under section 109/468, P.P.C. sentenced them to undergo R.I. for a period of four years each with a fine of Rs.20,000 each and in default of the payment of fine to undergo further R.I. for a period of one year each.
2. The appellants have challenged their conviction and sentence through the present appeal which is proposed to be disposed of through this judgment.
3. A case under section 409/420/466/468/471, P.P.C. was registered against the appellants through F.I.R. No. 154, date' 13‑8‑1993 at Police Station Saddar Barooni, Rawalpindi, on an application Exh.P.W.4/A moved by Azmat Hussain Shah complainant to the Senior Superintendent of Police, Rawalpindi. As per contents of the said application Syed Akhtam Hussain Shah son of the complainant having married with Mst. Asia Khatoon in March, 1986, left for the house of her parents in October, 1991, and did not return to the house of her husband till November, 1991. Syed Akhmat Hussain Shah on his return from Libya made an attempt for reconciliation but his marriage‑tie with Mst. Asia ended as a result of divorce. Sakhawat Hussain appellant allegedly in collusion with the Chairman of the concerned Union Council obtained an ex parte decree for maintenance. The complainant on coming to know about the said ex parte decree, after making a probe into the matter and found that Pert of Nikahnama in the custody of the Union Council was tampered with for obtaining the decree for maintenance. Precisely the allegation was that Column No. 19 of Nikahnama was left blank at the time of Nikah but the entry of Rs.one lac in addition to dower in the said column was subsequently inserted fictitiously. It was stated that Qazi Sami Ullah Nikah Registrar also confirmed the interpolation in the said Part of Nikahnama.
4. The case having registered through F.I.R. Exh.P.W.7/A, Imdad Hussain Shah, A.S.‑I. arrested Sakhawat Hussain on 14‑8‑1993. Thereafter, the investigation was conducted by Sikandar Baig, S.‑I., who took into possession Nikahnama Exh.P.W.i/B produced by Qazi Sami Ullah through recovery memo. Exh.P.W.9/A. Tariq Mehmood, Secretary, Union Council Renyal produced Pert Nikahnama Exh.P.W.5/A, which he took into possession through recovery memo. No.P.W.9/B. After recording the evidence of the witnesses andcompleting the formal investigation, both the appellants were challaned to face the trial.
5. Qazi Sami Ullah appearing as P.W.1 stated that out of four Perts, one was retained by Syed Riaz Hussain Shah, Advocate, whereas the remaining three being in his possession, were distributed one each to the Bride‑groom, the Secretary, Union Council and Nikah Registrar. According to him Column No. 19 of the Nikahnama was left blank at the titttc of performance of Nikah. He stated that Pert of Nikahnama in the custody of the Nikah Registrar was delivered to Zafar Mahmood, Secretary, Union Council through Tariq Mahmood Naib?Qasid, on his demand against receipt and at that time, Column No. 19 of the said Pert was blank. According to the witness, subsequently it transpired to him about the insertion of the entry to the effect that Bride‑groom was responsible to pay Rupees one lac besides the dower. Tariq Mahmood, Naib Qasid of the Union Council P.W.6, while appearing before the Court stated that on the direction of Zafar Mahmood appellant, he brought Nikahnama from Qazi Sami Ullah against a receipt EXh.P.W.I/A. Syed Taj Hussain Shah and Mukhtar Hussain P. Ws. claiming themselves the participants of the marriage stated that column No.19 of the Nikahnama was left blank at the time of performance of Nikah. Azmat Hussain Shah P.W.4, who is the complainant in the case supporting the prosecution case made a similar statement. Tariq Mahmood P.W.5, Secretary Union Council Renyal produced the Nikahnama with alleged forged entry before the Investigating Officer. He without supporting the version of the complainant stated that the entry in column No. 19 was in existence at the time when he took over the charge as Secretary, Union Council. The remaining witnesses namely Imdad Hussain, A.S.‑I. Sikandar Baig, S.‑I., Syed Arshad Hussain, D.S.P., Taifoor Akhtar, S.‑I. and Muhammad Saleem Constable also remained associated with the investigation. They made statements in confirmation to the extent of their association in the investigation. Qamar Ahmad Bhatti, Examiner Crime Branch, Lahore, while appearing in the witness?box proved his report pertaining to the Nikahnama Exh.P.W.5/A and Exh.P.W.I/B regarding the writings Exh.A./1 thereon and deposed that the said entry in column No. 19 Nikahnama in question was inserted later.
6. The appellants in their statements under section 342, Cr.P.C. denied the charges.
7. The learned trial Court placing reliance on the statements of the witnesses alongwith the report of the Handwriting Expert namely Qamar Ahmad Bhatti held the appellants guilty of the charge and convicted them accordingly.
8. The learned counsel for the appellant contended firstly that there is no evidence direct or circumstantial to connect the appellants with the commission of the offence under section 468, P.P.C. According to him, the prosecution has not been able to bring on record any evidence suggesting the entry of column No. 19 in the Nikahnama in question in the hand of any of the appellants.Secondly, that the copy of Pert Nikahnama in possession of Bride‑groom namely Syed Akhmat Hussain Shah was not produced in Court. Thirdly, the Nikah Registrar was not supposed to deliver the Pert Nikahnama to be retained by him to the Secretary, Union Council. He concluded that there being no proof of committing the forgery by any of the appellants, their conviction and sentence is based on presumption and conjectures.
9. Learned counsel appearing on behalf of the complainant and the State argued that the direct evidence of Nikah Registrar and the Naib Qasid of the Union Council regarding the delivery of the Pert Nikahnama to Zafar Mahmood appellant alongwith the report of the Handwriting Expert and his statement before the Court to the effect that the entry in column No.19 was later inserted was a strong proof of the fact that the mischief was done by Sakhawat Hussain, brother of Mst. Asia Khatoon for her benefit with the connivance of Zafar Mahmood the then Secretary, Union Council.
10. I have heard the learned counsel for the parties at length and also minutely perused the record with their help. The sole question requiring determination to fix the criminal liability of the appellants, if any, pertains to the entry of column No.19 in the Nikahnama in question. The assertion that the same was made subsequently to the performance of Nikah and was not a condition to the contract of marriage is not supported by any direct evidence on the record. The statements of the witnesses namely (1) Qazi Sami Ullah, (2) Naib Qasid of the Union Council and (3) the Handwriting Expert would not be relevant to explain the correct position. Qazi Sami Ullah deposed about retaining one Pert with him and the remaining three Peits Nikahnama were sent through Naib Qasid to Zafar Mahmood, Secretary of the Union Council. It is not understandable that how all the Perts of Nikahnama could be sent to the Secretary, Union Council, when as per his own statement only one Pert was to be given to the Union Council for record. He being custodian of one Pert was not supposed to deliver the same to any third person without the permission of the concerned parties. The inference would be that he was privy either to the alleged act of making entry in column No. 19 of the Pert or being in league with complainant party made statement that copy of Pert with him was also delivered to the Secretary, Union Council. Therefore, no credence can be given to the evidence of this witness to be a truthful witness. The Naib Qasid of the Union Council simply delivered the document in question to Zafar Mahmood appellant and, therefore, his statement except the delivery of the document is of no use and help to the prosecution. The statement of Handwriting Expert being the entry in column No.19 was different to that of the entries in the remaining columns of Pert of Nikahnama is not by itself a positive proof of the charge of forgery. The conviction on the basis of presumption that since the Perts in question were delivered to the Secretary, Union Council and the entries in the same were found by the Handwriting Expert in different hand, are placing reliance on the statement of the remaining witnesses that column No. 19 was leftblank on the day of marriage would not prove the change. There is nothing in the evidence of the witnesses that the payment of Rupees one lac in addition to the dower was not condition of the contract of marriage and instead their deposition was to the effect that column No. 19 was left blank. The column No. 19 having not filled by the Nikah Khawan or Nikah Registrar as the case may be, at the time of filling the Nikahnama after performing the Nikah would not be a circumstance to suggest that no such condition had arrived at between the parties at the time of marriage. The possibility of keeping open the column at the instance of the complainant side at the relevant time for some reason with some understanding is not ruled out. Be that as it may, the best evidence in the form' of fourth Pert of Nikahnama in possession of Syed Akhtam Hussain Shah son of the complainant was withheld and the same having not produced in Court in proof of the fact that the entry in column No. 19 in Nikahnama was not in existence and the same was insertad later in the remaining Perts, has led me to raise a legitimate presumption of not guilty in favour of the appellant.
11. The review of the evidence reveals that the appellants are not connected' with the commission of the offence. The alleged entry in column No. 19 of the Nikahnama statedly made at a subsequent stage having not proved that at what time the same was made and by whom has rendered the case of the prosecution of highly doubtful character.
12. In a nutshell the prosecution having failed to prove the charge against the appellants, this appeal is allowed. The conviction and sentence awarded to the appellants is set aside by giving them benefit of doubt and they are directed) to be released from jail forthwith if not required in any other case.
N.H.Q./S‑253/L ???????? ??????????????????????????????????????????????????????????????????????? Appeal allowed.
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