PLJ 2023 Cr.C. (Note) 40
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 439 & 435--Pakistan Penal Code, (XLV of 1860), Ss. 468 & 471--Criminal revision--Conviction and sentence--Petitioner was owner of a property he sold to complainant through sale-deed--Appreciation of evidence--Allegation of forged documents--The evidence is silent about elements of cheating therefore at most remedy available to complainant was before Civil Court either seeking possession or damages against owner--Despite fact that sale-deed is in existence, petitioners have been convicted for charge of preparation of forged document--Both Courts below while convicting petitioners have committed serious illegality as they have not appreciated evidence in a proper manner--Both Courts also ignored settled principles of law that under all circumstances it is prosecution who has to prove its case beyond reasonable doubt and if such duty is not discharged, benefit shall go to accused not as a matter of grace or concession but as a matter of premium--Revision allowed. [Para 10, 11 & 12] A, B & C
Mr. Muhammad Usman Sharif Khosa, Advocate for Petitioner in Crl. Rev. No. 222 of 2020.
Syed Jaffar Tayyar Bukhari, Advocate for Petitioner in Crl. Rev. No. 214 of 2020.
Syed Badar Raza Gillani, Advocate for Petitioner in Crl. Rev. No. 53 of 2021.
Mr. Khizar Ali Khan Wadani, Advocate for Complainant.
Syed Nadeem Haider Rizvi, Deputy District Public Prosecutor for State.
Date of hearing: 14.12.2021.
PLJ 2023 Cr.C. (Note) 40
[Lahore High Court, Multan Bench]
Present: Sohail Nasir, J.
MOHAMMAD ASIF and others--Petitioners
versus
STATE and others--Respondents
Crl. Rev. No. 222, 214 of 2020 and 53 of 2021, heard on 14.12.2021.
Judgment
Mushtaq Hussain, Muhammad Tariq and Mohammad Asif (petitioners) were tried in case FIR No. 563 (PC) recorded on 18.12.2015 under Sections 420/468/471/506, PPC at Police Station Sadar District Dera Ghazi Khan. On conclusion of trial vide judgment dated 19.03.2020 passed by the learned Judicial Magistrate D.G. Khan all petitioners were convicted and sentenced as under:-
i. Under Section 420, PPC to undergo 07-years R.I each and fine of Rs. 10,000/-(ten thousand) each. In default of payment of fine they were ordered to further undergo 10-days S.I each.
ii. Under Section 468, PPC to undergo 07-years R.I each and fine of Rs. 10,000/-(ten thousand) each. In default of payment of fine they were ordered to further undergo 10-days S.I each.
iii. Under Section 471, PPC to pay fine of Rs. 20,000/-(twenty thousand) each. In default of payment of fine they were ordered to further undergo 20-days S.I each.
2. Facts of the case are that Master Muhammad Kaleem (Pw-1) moved an application (PA) to District Police Officer D.G Khan where he maintained that he was in the need of a plot at Jamal Sarwar Colony; he contacted the brokers and he purchased the plot against a consideration of Rs. 32,00,000/-(thirty two lacs); it was found that plot was already sold and the colony was unregistered; later on original owner of the plot appeared and he/complainant was dispossessed; when he asked the accused for return of amount, he was given threats.
3. For more clarity of the facts it is observed that he was Mushtaq Hussain (petitioner) who was owner of property and he transferred it to complainant through registered sale-deed No. 8725 dated 15.04.2012 (PB/1); Muhammad Tariq (petitioner) was a marginal witness to the sale-deed whereas Muhammad Asif (petitioner) was a broker. It is further important to add here that one Riaz Ahmad was also convicted and sentenced by the trial Court. It was during the proceedings of appeal when he disappeared and was declared as a Proclaimed Offender.
4. After completion of investigation a report under Section 173, Cr.P.C. (Challan) was submitted in the trial Court.
5. A charge under Sections 420/468/471/506, PPC framed against petitioners on 13.01.2018 was not pleaded guilty by them where-after prosecution had produced as many as five witnesses.
6. In his examination made under Section 342, Cr.P.C. petitioners pleaded their false involvement in this case.
7. All the petitioners were convicted by the learned trial Court and their appeals were dismissed through a-consolidated judgment dated 03.12.2020 passed by the learned Additional Sessions Judge, D.G. Khan and now all three petitioners through Criminal Revisions (222 of 2020, 214 of 2020 and 53 of 2021) have approached this Court.
8. All concerned have been heard and record has also been gone through.
9. This is not a fact of denial that Mushtaq Hussain (petitioner) was the owner of a property and he sold the same to complainant through sale-deed (PB/1). The genuineness of said sale-deed is also not under dispute as conceded by all concerned. In these circumstances, it is surprising for this Court that how petitioners were convicted under Sections 468/471, PPC and for that learned Deputy District Public Prosecutor and learned counsel for complainant have no good answer at all. Even to my mind question of cheating and to induce the complainant to obtain from him any property does not arise because it is another admitted fact that after the registration of sale-deed the complainant was placed in possession of property. According to complainant who appeared as PW-1, he enjoyed the possession for about 02-months whereas according to his son Muhammad Noman Kaleem (Pw-2) the possession remained with them for about
13-months. It is also a conceded position that when one Elahi Bakhsh claimed his ownership on the plot in question, the complainant had filed a suit for permanent injunction but surprisingly he had withdrawn it as evident from order dated 15.11.2014 passed by the learned Civil Judge D.G Khan.
10. At the most the prosecution's case is that the property in which complainant was placed in possession was not the one which was mentioned in the sale-deed. The evidence is silent about elements of cheating therefore at the most remedy available to complainant was before the Civil Court either seeking possession or damages against the owner who is Mushtaq Hussain.
11. The learned trial Court it appears, did not take pain to appreciate evidence in a proper manner and this is evident from earlier discussion that despite the fact that sale-deed is in existence, petitioners have been convicted for the charge of preparation of forged document.
12. To my mind both the Courts below while convicting petitioners have committed serious illegality as they have not appreciated evidence in a proper manner. Both the Courts also ignored the settled principles of law that under all circumstances it is the prosecution who has to prove its case beyond reasonable doubt and if such duty is not discharged, the benefit shall go to accused not as a matter of grace or concession but as a matter of premium.
13. Resultantly, all these Criminal Revisions are allowed. Impugned decisions of two Courts are set aside. All the petitioners Mohammad Asif, Muhammad Tariq and Mushtaq Hussain are acquitted from the case. They are in custody and they shall be released forthwith if not required in any other case.
14. It is made clear that in case legal heirs of complainant if knock the door of Civil Court, this judgment shall give no benefit to petitioners and the suit shall be decided on its own merits.
(A.A.K.) Revision allowed
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