Gaffar Buksh Khan and Another vs Emperor

Kulwant Sahay, J.—Ali Karim Khan and Gaffar Buksh Khan were tried jointly by the Assistant Sessions Judge of Gaya. Ali Karim was charged with offences punishable u/s 82(a), Indian Registration Act, and Section 467, I.P.C., Gaffar Buksh Khan was charged u/s 82(d), Indian Registration Act, Section 467 I.P.C., and they were both convicted under those sections by the learned Assistant Sessions Judge. Ali Karim Khan was sentenced to one year''s rigorous imprisonment under each section and Gaffar Buksh Khan was sentenced to two years'' rigorous imprisonment under each section, the sentences to run consecutively. There was an appeal before the learned Sessions Judge of Gaya who upheld their convictions, but in the case of Ali Karim Khan his sentence was reduced from rigorous imprisonment to one of simple imprisonment. The two accused persons have come up in revision to this Court and have presented two separate applications: the application by Gaffar Buksh Khan being numbered 733 and that by Ali Karim Khan being numbered 751 of 1926.

The document in respect of which the petitioners have been convicted was a document which was partly a kobala and partly an ekramama and was dated the 19th February 1924. The executants of the document were Gaffar Buksh Khan, his three daughters Kaniz Zohara, Khair-un-nissa and Alim-un-nissa by his first wife, and Mahamadi Bibi, his second wife. All the five executants admitted the execution of the document before the Sub-Registrar of Sherghati. The Sub-Registrar was asked to go to the residence of the ladies in the town of Sherghati and he went there and took their admission. The ladies were identified by Ali Karim, who is the father of the second wife of Gaffar Buksh Khan. More than a year and a half afterwards a complaint was made by Kaniz Zohra before the Magistrate to the effect that there had bean a false personation and a forgery in respect of that document. Her case was that she and her sister Khair-un-nissa never executed the document and never put their thumb-impressions upon it, nor did they admit execution before the Sub-Registrar. The complaint was made on the 12th November 1925, before the Sub-Divisional Magistrate of Gaya.

The Magistrate, however, was not satisfied about the truth of the complaint and he directed an inquiry u/s 202, Criminal P.C., by the Sub-Registrar of Sherghati. The Sub-Registrar made the inquiry in the course of which he took two thumb-impressions purporting to be the thumb-impressions of Kaniz Zohra and Khair-un-nissa. He submitted his report and the accused persons were placed on their trial with the result that they were convicted as stated above.

The points taken before us are: first, that it has not been proved that the thumb-impression taken by the Sub-Registrar during his inquiry, and purporting to be the thumb-impressions of Kaniz Zohara and Khair-un-nissa, were really the thumb-impressions of those ladies. It appears that thumb-impressions were also taken before the committing Magistrate and it is again argued that these impressions also have not been proved to be the thumb-impressions of Kaniz Zohra and Khair-un-nissa. The thumb-impressiong taken by the Sub-Registrar and those taken by the Magistrate were sent to the Finger-print Bureau at Patna and an expert was examined at the trial in "the Assistant Sessions Judge''s Court. He deposed that the impressions taken by the Sub-Registrar and by the Magistrate did not tally with the impressions on the document in question purporting to be the impressions of Kaniz Zohra and Khair-un-nissa.

It is contended that there are four impressions on the deed purporting to be the thumb-impressions of the four ladies: Kaniz Zohra, Khair-un-nissa, Alim-un-nissa and Mahamadi Bibi, and it has not been proved that the thumb-impressions on the deed with which the thumb-impressions taken by the Sub-Registrar and by the committing Magistate were compared were the thumb-impressions of Kaniz Zohra and Khair-un-nissa. Lastly it is contended that the convictions u/s 82, Indian Registration Act, and Section 467, I.P.C., for the same offence are illegal.

As regards the first ground: it appears that the Sub-Registrar, when examined in Court, stated that he was unable to ''Swear that the impressions taken by him were the thumb-impressions of the ladies Kaniz Zohra and Khair-un-nissa. The two ladies were behind the parda and there is nothing to show that they were identified before the Sub-Registrar by any person who purported to know them. The learned Sessions Judge does not appear to have based his decision on the comparison of the thumb-impressions taken by the Sub-Registrar.

Next we come to the impressions taken by the committing Magistrate. As I have said, the complaint was filed on the 12th November 1925. The case was adjourned from time to time, and, ultimately, on the 29th April 1926, an application was made on behalf of Kaniz Zohra, praying that she may be allowed to give her evidence under parda. This application was strenuously objected to on behalf of the accused. It is to be remembered that one of the accused was her own father and he insisted that the complainant should appear in the witness-box and give her evidence in open Court. The learned Magistrate, however, disallowed the objection and permitted Kaniz Zohra to give her evidence under parda. She was examined on the 29th April 1926. On the first May 1926, the other lady, Khair-un-nissa, was examined also under parda, and the order-sheet shows that after her examination-in-chief the case was postponed till the 3rd, May 1926.

Thereafter there is an order in the order-sheet, which purports to be an order of the same day, but passed "later" to the following effect:

Finger prints of Kaniz Zohra and Khair-un-nissa are taken at the request of the prosecution and with their consent. The slips may be sent to Finger-print Bureau at Patna with the original deed of sale in a registered cover for examination of the impressions on the slips and the deed of sale and report.

It is contended on behalf of the petitioners that these impressions were taken behind their back and that there was nothing on the record to show that the impressions taken were the impressions of Kaniz Zohra and Khair-un-nissa. The learned Assistant Government Advocate admits that he is unable to point to any evidence on the record to prove that these impressions were the thumb-impressions of those two ladies. The Finger-print Expert gave evidence that these impressions did not tally with the thumb-impressions on the deed purporting to be the impressions of Kaniz Zohra and Khair-un-nissa. Now when there is no evidence on the record to show that the impressions with which the thumb-impressions on the deed were compared were the thumb-impressions of the two ladies, it is clear that the evidence of the expert is of no value. The evidence on the record is, therefore, not sufficient; to show that the thumb-impressions purporting to be the thumb-impressions of Kaniz Zohra and Khair-un-nissa on the deed were not the thumb-impressions of those ladies.

It is contended by the learned Assistant Government Advocate that in their written statement the accused did not take the objection that the thumb-impressions were not taken in their presence or that they were not the thumb-impressions of the ladies, nor was such objection taken during the trial. This may be so, but this did not relieve the prosecution of the burden of proving by evidence that the impressions taken by the Magistrate were the thumb-impressions of the two ladies. The rules of pleadings in civil suits do not apply to criminal trials.

It is next argued that there were four impressions on the deed purporting to be the impressions of the four ladies who were alleged to be the executants of the deed. The evidence shows that the thumb-impressions on the deed were taken while the ladies were behind the parda. Similar thumb-impressions were taken in the register kept in the registration office for that purpose. The evidence shows that after the thumb-impressions of the ladies were taken behind the parda, the deed was brought out to the place where the Sub-Registrar, Ali Karim Khan and Gaffar Bukhsh Khan were sitting, and that then Ali Karim wrote the signatures of the ladies by his pen and indicated which of the thumb-impressions was the thumb-impression of which lady.

It is contended that it is possible that Ali Karim made a mistake, and that the thumb-impressions purporting to be the impressions of Kaniz Zohra and Khair-un-nissa on the deed were really the thumb-impressions of the other two ladies. It must be said that the evidence on the record does raise a certain amount of suspicion on this point and it is difficult to say that it has been satisfactorily established that the two impressions on the deed with which the thumb-impressions taken by the Magistrate were compared were really the thumb-impressions of Kaniz Zohra and Khair-un-nissa.

The last point taken is that it is illegal to convict the petitioners for the same offence twice over. Now it does at pear to be inequitable; but it is not necessary to consider the question as to whether such a conviction is or is not legal. Having regard to the evidence on the record it is clear that the conviction of the present petitioners cannot stand.

The convictions of the petitioners and the sentences passed upon them must, therefore, be set aside and the petitioners must be acquitted and released from bail.

Scroope, J.

I agree.