IN THE HIGH COURT OF SINDH, KARACHI
Criminal Appeal No. 178 of 2004
Present:
Mr. Justice Nadeem Azhar Siddiqi
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Date of Hearing |
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24.03.2009
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Appellant
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:
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Haroon through Mr. Muhammad Ramzan, Advocate.
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Respondents
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THE STATE through Syed Ahmed Ali Shah, Standing Counsel.
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NADEEM AZHAR SIDDIQI, J : The present appeal is directed against the Judgment dated 29.4.2004 passed by the Learned Ist Additional Sessions Judge, Karachi West, by which the Learned Judge convicted the appellant for offence punishable under Sections 420, 468, 471 and 474 P.P.C., sentenced him to suffer R.I. for five years and fine of Rs.5,000/- or in default thereof, to suffer R.I. for 1/4th of his sentence under the impugned judgment.
The allegation against the appellant is that he arrived from Saudi Arabia by Ship Al-Madina on 28.03.1997. On being suspicion that they are non Pakistani national and were referred to the FIA, Examination Cell for further legal action. It was further alleged that the appellant is non Pakistani national and has obtained Pakistani passport and national identity card with the active connivance of the officials/officers of Passport Office Karachi and National Registration Office Karachi.
The police after usual investigation challaned the appellant in Court and the learned trial Court has framed the charge on 06.07.1998, to which the appellant pleaded not guilty and claimed to be tried.
At the trial the prosecution has examined Inspector Zafar Iqbal as PW-1 vide Exh.5 and Inspector Abdul Nabi Abbasi as PW-2 vide Exh.6. Thereafter, the prosecution has closed its side.
After closing the side on behalf of the prosecution, the statement under Section 342, Cr.P.C. of the appellant was recorded by the trial Court. Neither the appellant has examined himself on oath nor led any evidence in his defence.
The PW-1, Zafar Iqbal, in his deposition has not stated anything about the nationality of the appellant and has also not stated that the passport and national identity card are forged and fabricated documents. In cross-examination, he has stated that he had lodged the FIR and apart from that, he is not aware about anything else.
The PW-2, Abdul Nabi Abbasi, in his deposition has said nothing about the forgery of documents. The witness stated that from their documents the appellant were not Pakistani and on suspicion he stopped them for further proceedings.
Perusal of the record it transpires that the documents i.e. passport and national identity card of the appellant produced by the PW-1 Zafar Iqbal were not questioned there is no allegation that these are forged and fabricated documents. In presence of the above said documents and in absence of any evidence to the contrary the suspicion that the appellant is a non Pakistani national has no basis.
The sections applied in this matter are related to forgery of documents. For conviction under Section 468 PPC the prosecution has to establish and prove that the appellant has forged documents. Section 471, PPC applies to a person, who forged documents as genuine. Perusal of Sections 468 and 471 PPC shows that these sections can only be applied, if it is proved that a false document has been prepared. Section 474 PPC can only be applied, if it is shown that documents are forged, accused know that the documents are forged, the accused is in possession of forged documents, the accused intended that the documents would be fraudulently or dishonestly used as genuine and that the documents are of the description mentioned in Sections 466 and 467, PPC.
From the perusal of evidence it also transpires that the prosecution has failed to prove that the national identity card and passport are forged documents. The malafides of the prosecution are also evident from the fact that inspite of allegation that the appellant is a non Pakistani national no inquiry has been conducted into the issuance of national identity card and Pakistanis passport to the appellant.
It is also pertinent to mention here that in his statement recorded under Section 342, Cr.P.C. no question was put up to the appellant that he possessed forged national identity card and passport. The piece of evidence not put up to the appellant cannot be used to convict him.
Learned trial Court without any cogent evidence available on record has come to the conclusion that the appellant has involved in the offence. Learned trial Court has also wrongly shifted the burden upon the appellant to prove that he is Pakistani national. It is the duty of the prosecution to first prove that the appellant is a non Pakistan national and possessed forged and fabricated passport and national identity card and, thereafter, the burden can be shifted upon the appellant.
In the light of what has been discussed above, the prosecution has failed to prove its case against the appellant beyond any reasonable doubt, therefore, the appellant is entitled to the benefit of doubt, which is accordingly given to them. Consequently, the conviction and sentence awarded to the appellant under the impugned judgment are set aside. The appellant is present on bail, his bail bond stands cancelled and surety discharged.
The appeal was allowed by short order dated 24.3.2009 and these are the reasons of the same.
Karachi, 24th March, 2009. JUDGE