1968 P Cr (PLP)

This Criminal Revision has arisen in the following circum stances: On the report of one Muhammad Janan Khan who is admittedly the brother of Muhammad Ehsan Khan petitioner, a case under section 4191468 of the Pakistan Penal Code was registered against the petitioner and other' at New Anarkali Police Station, Lahore on 21st of April 1963. The allegations as set out in the first information report revealed that on 31st December 1962, the petitioner was responsible for the preparation of a forged document purporting to be a sale‑deed in respect of 214 nonals of agricultural land situate in Chak No. 22 North, district Sargodha, belonging to Muhammad Janan Khan complainant. The petitioner allegedly forged the sale‑deed Exh. P. S. purporting to show transfer of this land in his own favour for a consideration of Rs.40,000 by producing some body else to personate as Muhammad Ianan Khan. This happened on the 31st December 1962. After having investigated the case the police set up for trial the petitioner, one Islam ud Din Lambardar and two attesting witnesses of the sale‑deed, namely, Saifullah and Shamshad Ahmad.

2. After having examined as many as eleven witnesses, the learned trial Magistrate discharged the last ‑ mentioned two persons tinder section 253 of the Criminal Procedure Code and framed charge against the petitioner and Islamud Din under sections 419/109 and 468/109, P. P. C. vide the impugned order dated the 18th January 1967.

3. The present Criminal Revision challenging the correctness and legality of the aforesaid order was filed in this Court on the 27th of July 1967, after more than six months of the passing o1 the impugned order and has, at long last, come up for disposal.

4. The learned counsel for the petitioner has raised the following contentions before me:‑ (l) That the charge as framed against the petitioner is not sustainable, the ingredients of the offence of cheating being missing from the very outset. Reliance has been placed in this regard on Muhammad Bakhsh v. Emperor (A I R 1941 Lah. 460), Muhammad Sharif v. Emperor (148 Indian Cases 159) and Ghulam Mustafa v. The ,state (P

1. D 1960 Lah. 290) (2) that there is a patent inconsistency in the charge as framed against the petitioner and has put to him in his exami nation under section 342, Cr. P. C. inasmuch as the charge related to the petitioner being instrumental in producing somebody else to personate before the Sub‑Registrar as his brother Muhammad Janan Khan at the time of the registration of document of sale, whereas in the examination under section 34?, Cr. P. C. he himself allegedly personated as the vendor.

5. While conceding the obvious inconsistency between the charge as framed and allegations as put to the petitioner in his examination under section 342, Cr. ~P. C. the learned counsel for the State has, however, contended that the charge for offences under sections 419/467 would still be maintainable. Reliance is placed on Sardar Gian Singh v. Emperor (1), Ganga hibya v. Emperor (A I R 1943 Pat. 227), Muhammad Rashid v. The State (3) and Muhammad Shaf v. The State (P L D 1966 Lah, 330).

6. Having carefully considered the arguments raised by the learned counsel on bath sides in the light of the respective authorities cited by them, I am inclined to agree with the learned counsel for the petitioner that the impugned order has got to be set aside in view of the patent inconsistency in the charge as framed and the charge as put to the petitioner. The petitioner is inescapable notwithstanding the delay with which the present revision petition has been filed. In so far as the first contention relating to the sustainability of charge under sections 419;468 is concerned, it may be observed that there seems to be some conflict of views in the various authorities available on the point and the question is not entirely free from difficulty. However, having considered .the arguments raised by the learned counsel for the petitioner that for an offence under section 419, P. P. C. the ingredients of the offence of cheating are an essential prerequisite. I, before it is committed by personation. I am Of tile view that the, contention is not without substance. Cheating is defined in section 415, P. P. C. and obviously in the instant case there is no question of fraudulent or dishonest inducement to deliver property or to consent to the retention of such property, inasmuch as Muhammad Janan Khan does not figure at any stage of these proceedings. Similarly, section 463, P. P. C. deals with the commission of forgery for the purposes of cheating, of which, as stated earlier, the essential ingredients are missing at the outset. As such, it shall have to be considered whether from the evidence as brought on the record, any other offence or offences such as those under sections 423 and 467, P. P. C. were prima facie made out against the petitioner and his co‑accused. In short, the im pugned order is unsustainable on both the Courts and has got to be set aside. As such I am left with no option, but to allow this petition with the direction that the case may be remanded to the learned Magistrate for fresh decision on the lines indicated above. Petition allowed.