PLJ 2025 Cr.C. 83
[Lahore High Court, Lahore]
Present: Farooq Haider, J.
MUHAMMAD ARIF ZAMAN and another--Appellants
versus
STATE and another--Respondents
Crl. A. No. 909 of 2012, decided on 15.10.2024.
Pakistan Penal Code, 1860 (XLV of 1860)--
-- دفعات 420، 468 اور 471 -- ممنوعہ بدعنوانی (دفعہ دوم، 1947)، دفعہ 5(2) -- جعلسازی -- سزا اور سزا کی توثیق -- چیلنج -- "جرم میں بدعنوانی" -- دھوکہ دہی کے مقصد کے لیے جعلسازی کی گئی، نیز دھوکہ دہی بھی کی گئی، جعل شدہ دستاویز کو اصلی سمجھ کر استعمال کیا گیا اور چونکہ ملزم ایک سرکاری اہلکار بھی تھا، اس لیے اس نے "جرم میں بدعنوانی" کی ہے -- جب اپیل نمبر 1 کے موقف کو استغاثہ کے مؤقف کے مقابلے میں غور کیا گیا تو اس کا بیان قابل قبول نہیں ہوتا، جبکہ استغاثہ کا بیان مضبوط، قائل کنندہ اور اعتماد بخش ثبوتوں پر مبنی ہے -- استغاثہ نے اپنا مقدمہ یعنی اپیل نمبر 1 کے خلاف الزام کو شک و شبہ سے بالاتر ثابت کر دیا ہے؛ لہٰذا اسے ٹرائل کورٹ نے ٹھیک ٹھیک سزا سنائی؛ اس لیے مذکورہ بالا دفعات کے تحت 420، 468، 471، پاکستان پینل کوڈ کی دفعہ 5(2) بدعنوانی کے انسداد قانون 1947 اور فوجداری قانون میں ترمیم 1958 کی دفعہ 9 کے تحت اپیل نمبر 1 کے خلاف دی گئی سزا اور مجرمانہ فیصلے کو مکمل طور پر برقرار رکھا جاتا ہے -- چنانچہ اپیل کی حد تک اپیل نمبر 1 کو مسترد کیا جاتا ہے۔
----Ss. 420, 468 & 471--Prevention of Corruption (II of 1947), S. 5(2)--Forgery--Conviction and sentence--Challenge to--“Criminal misconduct”--Committed forgery for purpose of cheating, as well as cheating, used forged document as genuine and also being public servant committed “criminal misconduct”--When aforementioned defence version of Appellant No. 1 has been examined while keeping same in juxta position with prosecution version, then his version is of no avail whereas prosecution version is cogent, convincing and based upon confidence inspiring evidence to his extent--Prosecution has proved its case i.e. charge against appellant No. 1 beyond shadow of doubt; he has been rightly convicted and sentenced by trial Court; hence, aforementioned convictions recorded and sentences awarded to Appellant No. 1 through impugned judgment under Sections 420, 468, 471, PPC Section 5 (2) of Prevention of Corruption Act, 1947 and Section 9 of Criminal Law Amendment Act, 1958, are maintained in toto--Therefore, instant appeal to extent of Appellant No. 1 is hereby dismissed.
[Pp. 92 & 93] B, C & D
1988 CLC 1812.
Forgery--
"ریس ایپسہ لوکیٹر"—جعلی سازی، دھوکہ دہی خاص طور پر اس سزا یافتہ کے معاملے میں جو افسر ہونے کے ساتھ متعلقہ ریکارڈ کا حامل بھی ہو، براہ راست ثبوت حاصل کرنا آسان نہیں ہوتا کیونکہ ایسے افسر جب دھوکہ باز بن جاتے ہیں تو منصوبہ بندی کرتے ہیں، ماحول/مواد کا انتظام کرتے ہیں، پوری کوشش کرتے ہیں کہ متعلقہ الزام تراش مواد کو چھپائیں اور عموماً مذکورہ جعلی سازی متاثرہ شخص کو دیر سے معلوم ہوتی ہے اور اس مرحلے پر وقت گزر جانے کی وجہ سے ثبوت ڈھونڈنا مزید مشکل ہو جاتا ہے؛ لہٰذا، ایسی دفعات میں متعلقہ مواد جو دستاویزات/لین دین کی صورت میں ہو، کو ثبوت کی قدر کرتے ہوئے زیادہ وزن دیا جا سکتا ہے، اور اسے اصول "ریس ایپسہ لوکیٹر" یعنی "چیز خود بولتی ہے" کی روشنی میں قبول کیا جائے بجائے اس کے کہ صرف زبانی/براہ راست ثبوت پر زور دیا جائے۔
----“Res ispa loquitur”--In case of forgery, cheating and particularly by accused who being official is also holder of relevant record, it is not easy to find out direct evidence because such officials when become cheater, they make planning, manage atmosphere/material, try their level best to conceal relevant incriminating material and usually said forgery comes to knowledge of affectee at belated stage and it is more difficult to find out evidence at said stage due to passage of time; therefore, in such offences, relevant material in form of documents/transactions can be given due weight while appreciating evidence in light of maxim “Res ipsa loquitur” i.e. “the thing speaks itself” instead of emphasizing oral/direct evidence.
[P. 90] A
Mr. Osama Zaman, Advocate for and with Appellants (appellants have been identified by their learned counsel) for Appellant.
Rana Muhammad Shafique, Deputy Prosecutor General for State.
Nemo for Complainant.
Date of hearing: 15.10.2024.
Judgment
This appeal has been filed by Muhammad Arif Zaman and Zulfiqar Ali (appellants) against the judgment dated 10.05.2012 passed by learned Special Judge Anti-Corruption, Faisalabad Division, Faisalabad/trial Court whereby in case arising out of F.I.R. No. 245/2009 dated 05.06.2009 registered under Sections: 420, 468, 471, PPC {subsequently, offence under Section 5(2) of the Prevention of Corruption Act, 1947 was also added during investigation of the case} at Police Station City Toba Tek Singh, appellants have been convicted and sentenced as under:
MUHAMMAD ARIF ZAMAN
Conviction | Sentence |
Under Section 420, PPC | “Two Year’s Rigorous Imprisonment” with fine of |
Under Section 468, PPC | “Two Year’s Rigorous Imprisonment” with fine of |
Under Section 471, PPC | “Two Year’s Rigorous Imprisonment” with fine of |
Under Section 5(2) of PCA, 1947 | “Two Year’s Rigorous Imprisonment” with fine of |
Under Section 9 of Criminal Law Amendment Act, 1958 | Fine of Rs. 3,50,000/-payable to the complainant. |
ZULFIQAR ALI
Conviction | Sentence |
Under Section 420, PPC | “One Year Rigorous Imprisonment” with fine of |
Under Section468, PPC | “One Year Rigorous Imprisonment” with fine of |
Under Section 471, PPC | “One Year Rigorous Imprisonment” with fine of |
Under Section 9 of Criminal Law Amendment Act, 1958 | Fine of Rs. 3,50,000/- payable to the complainant. |
Aforementioned sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to the appellants/convicts.
It is pertinent to mention here that Muhammad Akhtar accused became absent after recording of his statement under Section 342, Cr.P.C. therefore declared as proclaimed offender.
2. Brief facts of the case in hand are that Zafar Yaseen (complainant/PW-2) moved application (Ex.PT) for registration of case to Zahid Hussain S.I. (PW-5) while mentioning therein that accused persons namely Muhammad Akhtar, Zufiqar Ali resident of House No. 234, Street No. 2, Mohallah Islampura, Toba Tek Singh and accused Arif Zaman Patwari resident of Chak No. 320-GB (ب ج), in connivance as well as consultation with each other, with mala fide intention while deceitfully committing fraud and forgery, prepared a forged, fictitious and fabricated Fard Jamabandi pertaining to the land bearing Khewat No. 642/634, Khatooni No. 750, measuring: 2-K, 0-M (out of total measuring 22-K, 16-M) pertaining to two plots one Kanal each, reference to Mutation No. 11223 dated 12.02.2008 in connection with oral sale of land measuring 10-Marla; copy of Daily Diary No. 785 dated 12.02.2008 and Mutation No. 11256 dated 25.02.2008 situated at Chak No. 327/JB, Tehsil & District: Toba Tek Singh regarding the agreement to sell dated 05.03.2007, whereby they agreed to sell land @ Rs. 52,500/-per Marla and received Rs. 600,000/-as earnest money @ Rs. 300,000/-per Kanal whereas remaining amount of sale consideration of Rs. 7,50,000/-was received in the office of Arif Zaman Patwari situated at Faiz Colony, Toba Tek Singh in presence of Hafiz Abdul Razzaq, Muhammad Umar and misappropriated the amount with the pretext to sell the lands; upon completion of period of agreement it came into knowledge of the complainant that Fard Jamabandi is a forged, fictitious and fabricated document; accused persons are not owner of the land; they in consultation with each other having mala fide intention, cheating and fraud in their hearts, grabbed a sum of Rs. 10,50,000/-from the complainant, which was as a trust with them till completion of agreement and the same had been misappropriated with mala fide intention; the complainant along with witnesses went to the accused persons, protested and demanded return of his amount, whereupon, they while confessing their guilt sought pardon and promised to return the amount but now they have flatly refused to do so; upon which, the complainant himself paid amount of agreement to sell of Rs. 10,50,000/-to Muhammad Shafique; when demanded back said amount from the accused persons, they threatened for involving him in false cases.
On the basis of said application of Zafar Yaseen (complainant/PW-2), case vide F.I.R. No. 245/2009 (Ex.PT/1) dated 05.06.2009 under Sections 420, 468, 471, PPC was registered at Police Station City Toba Tek Singh.
After investigation, report under Section 173, Cr.P.C. was submitted in the Court; Muhammad Arif Zaman, Zulfiqar Ali (appellants) and Muhammad Akhtar (now P.O.) were put for trial; charge under Sections: 420, 468, 471, PPC read with Section 5 (2) of the Prevention of Corruption Act, 1947 was framed against them to which they pleaded not guilty and claimed trial. Prosecution during trial examined eleven witnesses whereas Mushtaq Hussain, Assistant Commissioner, Toba Tek Singh was examined as Court Witness (CW-1); thereafter statements of both the appellants as well as of Muhammad Akhtar were recorded under Section 342, Cr.P.C. on 03.08.2011 wherein they refuted case of the prosecution against them; the appellants did not opt to record their statements under Section 340(2), Cr.P.C. however Muhammad Akhtar (now P.O.) produced some documents in his defence. Thereafter, an application was moved on behalf of the complainant for producing further evidence which was allowed on 28.09.2011; Muhammad Akhtar accused became absent and was declared as proclaimed offender; Statements of Abid Hussain Patwari as PW-12 and Ali Gardawar as PW-13 were recorded; both the appellants were again examined under Section 342, Cr.P.C. on 20.03.2012 wherein they refuted the allegations levelled against them; they did not opt to appear under Section 340(2), Cr.P.C. however documents Ex.DK and Ex.DL were produced in defence on behalf of Arif Zaman (Appellant No. 1). Trial Court after conclusion of trial has convicted and sentenced the appellants as mentioned above through impugned judgment dated 10.05.2012.
3. Learned counsel for the appellants has submitted that convictions recorded against and sentences awarded to the appellants through impugned judgment are against the ‘law and facts’ and result of non-reading/misreading of evidence. Learned counsel for the appellants finally prayed for acquittal of the appellants.
4. Conversely, learned Deputy Prosecutor General has supported the impugned judgment and prayed for dismissal of the appeal.
5. Arguments heard. Record perused.
6. Case of the prosecution against Zulfiqar Ali (Appellant No. 1) is that he and Muhammad Akhtar (accused now P.O.) executed Iqrar Nama (agreement to sell/Ex.PW) with Zafar Yaseen (complainant/PW-2) regarding two plots measuring 1-Kanal each while receiving Rs. 600,000/-as earnest money; subsequently, Muhammad Akhtar accused in furtherance of said Iqrar Nama (agreement to sell/Ex.PW) got entered two mutations bearing No(s).11223 dated 12.02.2008 (Ex.PG) and 11256 dated 25.02.2008 (Ex.PJ) in revenue record in favour of one Muhammad Shafique vide oral statement qua sale on the basis of Mutation No. 9981 (Part Patwar/Ex.PE and Part Sarkar/Ex.P.E/1) which was entered on the basis of Rapt No. 571 (Ex.PF).
So far as Iqrar Nama (Agreement to Sell/Ex.PW) is concerned, it is relevant to mention here that original of the same was neither produced nor got exhibited; so much so that it was not got compared with copy of the same, which was exhibited in the Court; even any material has not been brought on the record to show that original has been destroyed or not available in order to justify production of secondary evidence i.e. copy of the same and in this regard, cases of “Mst. Akhtar Sultana versus. Major Retd. Muzaffar Khan Malik through his legal heirs and others” PLD 2021 SC 715 and “Mst. Khurshid Begum and 6 others versus Chiragh Muhammad” 1995 SCMR 1237 can be advantageously referred; Even any notary public who attested Iqrar Nama (Agreement to Sell/Ex.PW) has not been produced as witness by the prosecution; apart from this, Zulfiqar Ali (Appellant No. 2) merely posed himself as having purchased the land and not expressly mentioned therein that he is full owner of the land and same wording was used by the complainant (PW-2) himself in the agreement (Ex.PX) which he executed with aforementioned Muhammad Shafique and he (complainant) even admitted said facts including the fact that Zulfiqar Ali (Appellant No. 2) and Muhammad Akhtar (since P.O.) executed Iqrar Nama (Ex.PW) with him on the basis of Iqrar Nama, which they made with Yar Muhammad etc. regarding purchase of the land and relevant portion of his statement in this regard is scanned below:
Similarly, relevant portion of the statement of Abid Sagheer, Inspector (PW-10) on the subject is also scanned as under:
So, it has been admitted by the complainant (PW-2) that Iqrar Nama (Agreement to sell/Ex.PW) was executed with him by Zulfiqar Ali (Appellant No. 2) as well as Muhammad Akhtar (accused now P.O.) not in the capacity of full owner of the land rather as purchaser of the land and on the basis of agreement to sell, executed between Zulfiqar Ali, Muhammad Akhtar and Yar Muhammad, etc.; it was duty of the prosecution to prove that Zulfiqar Ali (Appellant No. 2) was not owner of any land there but prosecution did not produce any evidence in this regard. It is not the case of the prosecution that Zulfiqar Ali (Appellant No. 2) while claiming himself as full owner of the land made statement to Revenue Patwari regarding sale of the land to the complainant or any other person on the asking of the complainant or any mutation of the land was entered in the revenue record on the statement of Zulfiqar Ali (Appellant No. 2) as owner; so much so, in the both impugned mutations No(s) 11223 (Ex.PG) and 11256 (Ex.PJ), Zulfiqar Ali is not even signatory in any capacity. Furthermore, as per Iqrar Nama (Agreement to sell/Ex.PW), if Zulfiqar Ali (Appellant No. 2) fails to transfer land to the complainant, then remedy is before Civil Court for specific performance of the same or paying the double amount of the received earnest money; in this regard, relevant portion of Iqrar Nama (Agreement to sell/Ex.PW) is reproduced below:
"اگر ہم معاہدہ ہذا کی خلاف ورزی کرینگے تو وصول شدہ رقم کے دگنا مشتری مذکور کو ادا کرنے کے پابند رہینگے۔"
Therefore, prosecution has been failed to prove the charge against Zulfiqar Ali (Appellant No. 2) and there is no need to discuss defence version qua him, hence, instant appeal to the extent of Appellant No. 2 is allowed; resultantly, convictions recorded and sentences awarded to Appellant No. 2 through impugned judgment are hereby set-aside; he is acquitted of the charge; he is on bail after suspension of execution of his sentence by this Court vide order dated 20.06.2012 passed in Crl. Misc. No. 01/2012, his surety stands discharged from the liability of bail bonds.
7. Before discussing the case of Muhammad Arif Zaman (Appellant No. 1), it is relevant to mention here that while deciding the criminal case, approach of the Court must be inquisitorial instead of adversarial; furthermore, in the case of forgery, cheating and particularly by the accused who being official is also holder of the relevant record, it is not easy to find out the direct evidence because such officials when become cheater, they make planning, manage the atmosphere/material, try their level best to conceal the relevant incriminating material and usually said forgery comes to the knowledge of the affectee at belated stage and it is more difficult to find out evidence at said stage due to passage of time; therefore, in such offences, relevant material in the form of documents/transactions can be given due weight while appreciating the evidence in the light of maxim “Res ipsa loquitur” i.e. “the thing speaks itself” instead of emphasizing the oral/direct evidence.
8. So far case of Muhammad Arif Zaman (Appellant No. 1) is concerned, he was acting as revene Patwari of the relevant area Chak No. 328 “{Jeem Bay (ب ج)}”; he while acting as Patwari recorded Rapt No. 571 dated 18.06.2006 (Ex.PF) in Roznamcha Waqiati, entered Mutation No. 9981 (Ex.PE, Ex.PE/1) on 18.02.2006 regarding land in favour of Muhammad Akhtar (accused since P.O.); he also entered Mutation No. 11223 (Ex.PG=Ex.PN) dated 12.02.2008 and Mutation No. 11256 (Ex.PJ=Ex.PR) on the statement of Muhammad Akhtar (accused since P.O.) in favour of one Muhammad Shafique s/o Sher Muhammad; in this regard, statement of Ghulam Murtaza, Patwari (PW-4) and recovery memos (Ex.PC. Ex.PL and Ex.PS) can be safely referred whereas relevant portion of Ex.PL is hereby scanned below:
Muhammad Arif Zaman (Appellant No. 1) recorded aforementioned Rapt No. 571 dated 18.06.2006 (Ex.PF) in favour of Muhammad Akhtar, which is hereby scanned below:
Perusal of said rapt reveals that it was incomplete, vague as well as dubious because neither parentage of Muhammad Akhtar nor amount of sale was mentioned in the same; similarly, measurement of the land i.e. how much land has been sold and handing over of the possession has also not been mentioned in the same. And with reference of said incomplete rapt, Mutation No. 9981 was entered in the relevant register on 18.02.2006 by Appellant No. 1 but it was never sanctioned/attested by any revenue officer and for the said reason same was of no value; in this regard, case of “Karam Shah versus Mst. Ghulam Fatima and 3 others” (1988 CLC 1812) can be safely referred and relevant portion of the same from its paragraph No. 2 is hereby reproduced as under:
“An attested mutation may carry a rebuttable presumption of truth but an unattested mutation entered simply by a Patwari has no significance, importance or value in the eyes of law”
(emphasis added)
Therefore, Muhammad Arif Zaman (Appellant No. 1) was having full knowledge of incomplete/dubious feature/aspect of the rapt (Ex.PF) being its author but he used the same and on the basis of said incomplete/dubious rapt (Ex.PF), knowingly entered Mutation No. 9981 (Ex.PE, Ex.PE/1) on 18.02.2006 in favour of Muhammad Akhtar, which remained unsanctioned/unattested and was of no value but even then, he knowingly entered mutation bearing No(s).11223 (Ex.PG=Ex.PN) and 11256 (Ex.PJ=Ex.PR) on the statement of Muhammad Akhtar (accused, now proclaimed offender) on the basis of said unsanctioned/unattested Mutation No. 9981. Both Mutation No(s).11223 and 11256 (mentioned above) are subject matter of this case. Therefore, prosecution has established that Muhammad Arif Zaman (Appellant No. 1) knowingly committed forgery for the purpose of cheating, as well as cheating, used forged document as genuine and also being public servant committed “criminal misconduct”.
Now coming to the defence version of Appellant No. 1; relevant portions of his answer to question No. 10 during his statement recorded under Section 342, Cr.P.C. are hereby reproduced:
“I am not part to the agreement Ex-PW dated 05.03.2007 between the complainant and Muhammad Akhtar and Zulfiqar accused. There is no evidence on record regarding any payment; neither on 05.03.07 nor on its implementation dated i.e. 01.08.2007 relating to my intervention.
As regards Mutation No. 11223 and 11256 or their reports No. 785 and 841, the complainant is not concerned with any of these documents. The alleged vendee Muhammad Shafique never joined the enquiry investigation or trial proceedings of this case. PW4 Ghulam Murtaza Patwari has
clearly admitted that Muhammad Akhtar accused was already owner of 2 Kanals 13 Marlas since 30.09.06 vide Mutation No. 10338, Ex-DA.”
“The mutations No. 11223 and 11256 were further based upon Mutation No. 9981 dated 18.02.06 got entered by Tayyub Maqbool in favour of Muhammad Akhtar, lying intact at that time. A cancellation note, however, appears to have been forged thereon by the prosecution through any hidden hand, hence not blessed with the endorsement of any revenue officer”.
When aforementioned defence version of Appellant No. 1 has been examined while keeping the same in juxta position with prosecution version, then his version is of no avail whereas prosecution version is cogent, convincing and based upon confidence inspiring evidence to his extent.
9. Nutshell of the above discussion is that prosecution has proved its case i.e. charge against Muhammad Arif Zaman (Appellant No. 1) beyond shadow of doubt; he has been rightly convicted and sentenced by the trial Court; hence, aforementioned convictions recorded and sentences awarded to Appellant No. 1 through impugned judgment under Sections: 420, 468, 471, PPC Section 5 (2) of the Prevention of Corruption Act, 1947 and Section 9 of the Criminal Law Amendment Act, 1958, are maintained in toto. Therefore, instant appeal to the extent of Muhammad Arif Zaman (Appellant No. 1) is hereby dismissed. Order dated 20.06.2012 passed by this Court with respect to suspension of execution of sentence of Appellant No. 1 is hereby recalled. Station House Officer of police station concerned will proceed further in accordance with law. Office is directed to transmit copy of this judgment to the trial Court for compliance in accordance with law.
(A.A.K.) Appeal dismissed
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