P L D 1973 Supreme Court 619 (PLP)

Thari at the time of the attestation of the mutation, were also arraigned before the Special Judge.

6. Respondents Nos. 1 and 2 in their statements in the defence admitted that Kaman was murdered, but denied that suspicion for the murder fell upon respondent No.

1. Their counter‑version was that Mst. Thari's daughter Mst. Bakbi who was originally married to one Shahamand son of Murad was abducted by Maulu (P. W. 11). Shahamand requested Kaman and his mother to help in the restoration of Mst. Bakhi. On their refusal to do so, Shahamand and certain others killed Kaman. Similarly, the fact that respondent No. 1 and his two sons were bound down for keeping the peace was not denied though different reason was assigned for the security proceedings. It was stated that the proceedings were really directed against Maulu P. W. 11 who wanted to grab the lard held by Mst. Thari and the Police apprehending breach of the peace initiated proceedings against both parties is to the circumstances leading to the alleged mutation by Mst. Thari, it was stated that Mst. Thari's brother Salehon had abducted Mst. Saban, a sister of respondent No.

2. Respondents Nos. 1 and 2 urged Mst. Thari and Selehon for the return of the abducted woman or else be prepared to suffer the consequences. Owing to the Intervention of the common relatives, a compromise was reached whereby Mst. Thari agreed to make a gift of her entire holding in favour of respondent No. 1 In return for respondent No. 2 agreeing to give the hand of his erring sister in marriage to Salehon.

7. The other two co‑accused, namely, Ghulam Qadir Patwari and Mst. Daulan denied being privies to the alleged fraudulent mutation. Mst. Daulan denied that she ever appeared before Naib‑Tehsildar.

8. The prosecution case mainly rested, besides the testimony of Haji Mansab Klan Naib‑Tehsildar and Ch. Inayatullah Tehsildar, on the evidence of Mst. Thari (P. W. 6), Ahmad (P. W. 7), Rahman (P. W. 8) who testified to general background of strained relations between the two branches of family of Bahadur represented by his two wives. Respondents Nos. 1 and 2 in their defence examined only Daulat, a nephew of Mst. Thari, who supported the defence version throughout.

9. On the appraisal of evidence produced in the case and having regard to the ambient circumstances, the learned Special Judge found the prosecution version to be "natural and more probable" and did not find the defence version and the evidence produced in support thereof "convincing or reliable" On the above assessment, he convicted respondents 1 and 2 for the offence under section 419 read with section 109, P. P. C. and sentenced them to one year R. I. each for having committed the offence of abetment of cheating by procuring personation at the time of the attestation of the impugned mutation on 7‑9‑60 by an unidentified woman for Mst. Thari. The learned Special Judge, however, found the case against Mst. Daulan and Ghulam Qadir Patwari as "not proved beyond doubt" and therefore acquitted them.

10. On appeal by respondents 1 and 2, a learned Single Judge in the High Court acquitted both the respondents on the short ground that the trial Court having found that it was not satisfactorily proved that Mst. Daulan had personated Mst. Thari at the time of the attestation of the mutation and there being "no direct evidence to prove beyond doubt that the woman who appeared before the Naib‑Tehsildar at the time of attestation of the impugned mutation was not Mst. Thari", the conviction of the two respondents cannot be maintained.

11. Leave to appeal was granted for the re‑examination of the evidence in the case to determine whether the learned Single Judge had applied correct principle in appraising the evidence and recording acquittal of respondents 1 and 2 and ignoring various circumstances which furnished corroborative evidence in support of the prosecution case.

12. As pointed out already, the fact that Kaman was murdered was not disputed by respondents Nos. 1 and

2. They however disputed the further allegation that respondent No. 1 was directly or indirectly concerned in the murder. In our opinion, it is wholly unnecessary foe the purpose of determining the criminality of the respondents in this case, to determine as to who was responsible for the murder of Kaman and the motive underlying the murder. All that is material for the purpose of this case is to determine whether at the relevant time the relations between Mst. Thari and her step‑son respondent No. 1 as alleged by the prosecution were so bitter as to exclude the possibility of a gift by her of her entire holding measuring 113 kanals 4 marlas in favour of the latter. For that limited purpose, the following facts which are not controverted, are of utmost significance. First, under the general customary law then prevailing to the Province, on the death of Kaman, his mother Mst. Thari was entitled only to maintenance and entire estate of her deceased son, devolved upon his step‑brother. However, contrary to the general rule of custom, Mst. Thari was allowed i by respondent No. 1 to succeed to the entire estate of her deceased son. Secondly, Mst. Thari, after the attestation of the mutation in her favour, left the house of her husband and went over to live with her daughter Mst. Bakhi in the same Chak. This again is highly significant circumstance to support the prosecution version about the reasons underlying the mutation 9n favour of Mst. Thari following the murder of Kaman. Thirdly, had the cause for the murder of Kaman been the abduction of Mst. Bakhi by Maulu P. W. 11, as alleged by the defence, then the wrath of the jilted husband should have had fallen on his wayward wife or her paramour and not Kaman who according to the statement of respondent No. 1, merely refused to help Shahamand in the restoration of his wayward rife. Then evidence with regard to the security proceedings for keeping the pace two months prior to the attestation of the impugned mutation is also a clear pointer to the continued bitter relation ship between the two branches. Thus it becomes manifest that the two branches of the family of Bahadur, since the murder of Kaman, continued to remain as estranged as ever. Judging from the n‑‑rural conduct of human affairs, it is highly improbable that Me. Thari the appellant should have had gifted her entire land in favour of her step‑son.

13. Finally, the defence story about the alleged abduction of Mst. Saban by Salehon related by Daulat D. W. 1 as the impelling reason for the impugned gift to bring about peace between Salehon and respondent No. 2 as the wronged brother of the abducted woman. No report of the incident was lodged. Mst. Saban according to the evidence of Daulat D. W. was an unmarried woman aged 40, while Salehon was a widower sufficiently advanced in years. It is highly improbable that Mst. Saban at that age should have had eloped with an aged person who had by his deceased wife a son aged about

10. What Is even more improbable is that the appellant should have gifted her entire holding in favour of her step‑son in spite of her strained relations with him to purchase peace between her brother and respondent No. 2 who, if at all, was really the aggrieved person. To accept the defence version on this count would be straining one's intelligence to a breaking point. Therefore, the learned Special Judge, in our view, was amply justified in rejecting the story of alleged abduction of Mst. Saban b Salehon, as the prime reason for the impugned mutation.

14. Coming to the reason which weighed with the learned Single Judge in the High Court to set aside the conviction of respondents 1 and 2, namely, that there was no direct proof, t9 show beyond doubt that the woman who appeared before the Naib‑Tehsildar at the time of the attestation of the impugned mutation was not Mst. Thari, the learned Judge has entirely overlooked the statement of Mst. Thari before the Special Judge in these terms: ‑ "I never appeared before the Revenue Officer or made any statement that T had made a gift in favour of Muhammad accused. I could not do so in favour of him as he is the murderer of my son . . . . . Nothing could have been more categorical or emphatic on the point. What the learned Single Judge altogether missed was that he was requiring the proof of a negative fact in relation to Mst. Thari, which was primarily within her special knowledge. The only other persons who could have possibly testified to this fact, was the Naib‑Tehsildar, the Patwari who did not personally know the woman, and the two respondents who were accuses to the case. The mutation, as pointed out already, was attested in the Tehsil and not in Chak No. 125/J. B. and therefore in the circumstances no other negative evidence was possible. And then there is no reason, whatever, to disbelieve Mst. Thad's statement on this point, particularly when it is wholly consistent with the probabilities of the case. She having thus proved the negative fact in relation to herself, which, in the circumstances of the case, was the best evidence, it lay upon the two respondents to disprove her above statement by direct evidence that she appeared before the Naib‑Tehsildar to acknowledge the gift of her entire holding in favour of her step‑son. No such evidence has been produced nor even Mst. Thari was cross‑examined on the above part of her statement. Therefore, it must be accepted without any hesitation. On the above appraisal of evidence and the ambient circum stances, the following facts are established beyond any reasonable doubt, namely: (i) that on 11‑8‑60 respondent No. I falsely stated before the Patwari Ghulam Qadir that Mst. Thari had gifted her entire holding in his favour on the basis of which the Patwari made entry No. 4:5 in Roznamcha Waqiati and entered mutation No. 371; (ii) that on 7‑9‑60, respondents Nos. 1 and 2 procured an unidentified woman to personate Mst. Thari and who actually appeared In that assumed character before Haji Mansab Khan Naib‑Tehsildar to acknowledge the gift of land in favour of respondent No. I describing him as her son; (iii) that that unidentified woman was falsely identified by respondent No. 2 as Lambardar of Chak No. 125/J. B. to be Mst. Thari to which respondent No. 1 was also a privy; (iv) that Mst. Thari did not appear before the Naib‑Tehsildar on the‑aforesaid date to acknowledge gift; and (v) that the plain object of the transaction beginning from the entry 415 in roznamcha waqiati and ending with the attestation of mutation (Exh. P. A.) on 7‑9‑60 was to cause wrongful loss to Mst. Thari and , wrongful gain td respondent No. 1.

15. This brings us to the crucial law question arising in the case, which though not raised before the Courts below or even in the concise statement filed on behalf of the respondents Nos. 1 and 2, but which, because of its general importance, we allowed Khawaja Mushtaq Ahmad to argue. Learned counsel argued that even if the prosecution evidence is accepted in its entirety, that will not brag the case within the purview of section 419 read with section 109, Pakistan Penal Code. He cited Muhammad Bakhsh v. Emperor (A I R 1941 Lah 460), in support of his contention.

16. The facts of the precedent case, in essential respects, closely resemble the instant case. In that case a mutation was entered by the Patwari, at the instance of one Allah Wasaya, that he had purchased certain land from Ilahi Bakhsh. The village Lambardar also attested the entry in the mutation. The mutation was then placed, before the Naib‑Tehsildar In the presence of Allah Wasaya, the Lambardar, and one Muhammad Bakhsh who parsonated Ilahi Bakhsh, the vendor, and whom the Lambardar also identified as such. In the course of enquiry, the Naib‑Tehsildar became suspicious and on further enquiry it was discovered that Muhammad Bakhsh had porsonated Ilahi Bakhsh, the vendor. Allah Wasays and Muhammad Bakhsh were both prosecuted under sections 419 and 420, Pakistan Penal Code, and convicted. On revision, a Division Bench held in that case that the case did not fall within the purview of section 415, (Indian) Penal Code, and that Allah Wasaya and Muhammad Bakhsh could not he convicted under section 419 or section 420 read with section 109, (Indian) Penal Code. The learned Judges observed that on the facts of the case, deception was practised upon the Naib‑Tehsildar, but he was not likely to suffer in mind, body or reputation even if it was subsequently discovered that Ilahl Bakhsh had not sold the land in dispute and that he had been personated by Muhammad Bakhsh. So far as damage or harm in property was concerned, Ilahi Bakhsh the vendor was likely to suffer, but no deception bad been practised upon him.

17. For a clearer understanding of the ratio decidendi in the precedent case, reference need be made to the provisions of section 415, P. P. C. which defines the offence of `cheating' and which on its analysis, but without any change in its warding would read: - "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or its likely to cause damage or harm to that person in body, mind,. reputation or property, is said to "cheat"." It will thus be seen that the definition contains two distinct parts, with the opening words covering both the parts and therefore applying to these whole section. In other words, deception is an essential element in the offence of cheating whether the case falls under the first or the second part. Then comes the first part which is confined to cases involving transfer or retention of property by deception. The second part on the other hand embraces cases to which no transfer or retention of property Is Involved, but In such cases the following two con ditions must be established, namely:- (a) a deceiving of a person with the intention and object that he shall do an act which he would not have done had he not been so deceived; and (b) that the act so caused to be done is one which causes or is likely to cause harm to the deceived person, in body, mind, reputation or property. The precedent case as also the instant case did not involve any deception directly on the owner of the land; the deception in each case was practised aliunde, in collusion with the person who personated the true owner before the Revenue Officer causing him to sanction the mutation which he would not have done had he not been so deceived. But In every such case (b) above must also concurrently be satisfied along with (a). The question then is, whether in the instant case, Haji Mansab Khan Naib‑Tehsildar, having been caused to attest the mutation (Exh. P. A.) in favour of respondent No. 1 suffered any harm In body, mind, reputation or property. In the precedent case, the question was answered in the negative in the following words: "The Naib‑Tehaildar acted in strict accordance with the rules and he could not be made to suffer, if it was discovered that he had been deceived." Similarly In Sundar Singh v. Emperor (25 P R 1904 (Cr.)) where a number of Sikh soldiers were deceived and taken to a shop different from the one, from where they intended to purchase karah perished, a Division Bench of the Punjab Chief Court held‑ "To justify a conviction for the offence of cheating it is essential that the person made to deliver properly, etc, or to door omit to do anything which causes or is likely to cause him damage in body, mind, reputation or property, Bind which he would not otherwise have done, should be the person who has been deceived. The offence is not committed if a third party on whom no deception has been practised sustains pecuniary loss in consequence of the accused's act."

18. In the instant case, on the proved facts, no deception has been directly practised upon Mst. Thari by respondent No. 1 or

2. They operated independently of her by making a false report to the Patwari about the gift of her land in favour of respondent No. 1 and procuring entries by the Patwari in the roznamcha and the mutation register. In proceedings before the Naib‑Tehsildar also, the respondents operated in dependently of Mst. Thari who was never produced or induced to make statement before the Naib‑Tehsildar. Thus there is close similarity between this case and the two precedent cases noticed above, in that, the persons actually deceived (the Revenue officers and the Sikh soldiers) suffered no pecuniary loss in consequence of the accused's acts nor did they suffer any harm in body, mind or reputation. On the above analysis oil section 415, P‑ P. C. which defines "cheating" respondents Nos. 1 and 2 cannot be convicted for "abetment of cheating by Than personation".

19. The above extraordinary result is an outcome of defective definition of "cheating" In section 415, P. P. C. In Muhammad the case of Muhammad Bakhsh, Abdul Rashid. 1. (as he then was) noticed this defect In the definition which required modification in order to cover cases where one person Is deceived and another person suffers or is likely to suffer damage or harm in body mind, reputation or property in consequence of deception, as in the instant case. Such cases are of frequent occurrence and more often than not the offender escapes punishment because of the limiting warding of the definition of "cheating". A copy of the judgment in that case was sent to the Government as far back as 1941 suggesting amendment of section 415 of the Penal Code to rectify the definition for the relevant purpose. The same suggestion was repeated later in Ghulam Mustafa v. he State (P L D 1960 Lah. 290) where a learned Single Judge of the former High Court of West Pakistan also set a copy of the judgment of that case for suitable amendment of section 415 of the Penal Code so as to cover cases of deception as in the Instant case. It is a pity that these suggestions went unheeded and the society continues to suffer on that account. The defect can be rectified by a short amendment by substituting the words, "damage or harm to that or any other person", for the existing words, of "damage or harm to that person". This simple amendment will enlarge the ambit of the definition of "cheating" to comprehend within its purview cases similar to this and the precedent cases noticed above. Such cases are by no mean of rare occurrence. And therefore the urgency for the amendment.

20. Coming back to the case before us, the next question that falls for determination is whether on the facts proved, the respondents 1 and 2 can be convicted of any other offence?

21. After the conclusion of arguments in the appeal on 23‑5‑73, a notice was issued to the parties for a rehearing of the appeal on this limited question. The learned counsel for respondents 1 and 2 argued that they were tried by a Special Judge exercising special jurisdiction under the Pakistan Criminal Law (Amendment) Act which was confined to the trial of offences specified in the Schedule to the Act and therefore the respondents cannot be convicted of an offence not specified In the Schedule. The argument overlooks the provisions of subsection (4) of section 6, which reads:‑ "Notwithstanding anything contained in this Act, the Special Judge may convict the accused of any offence which from the facts admitted or proved he appears to have committed." The non‑obstante clause in the beginning of the above provision gives it an overriding effect against any limiting provision in the Act designed to restrict the jurisdiction of a Special Judge as to the class of cases tri-able by him. Therefore, if a Special Judge in exercise of his jurisdiction under the Act was validly seized of the case, it will be perfectly open to him to convict the accused "of any offence which from the facts admitted or proved, he appears to have committed". These words are of wide import and the intention to do away with any limitation as to jurisdiction of the Special Judge, for the relevant purpose could not have been clearer.

22. So also sections 237 and 238 of the Code of Criminal Procedure, 1898, will not affect the amplitude of the: jurisdiction of a Special Judge under section 6(4) of the Act Vide subsection (1) ibid, the provisions of the Criminal Procedure Code shall apply to the proceedings before the Special Judge in so far as they are not inconsistent with the provisions of (the) Act . . . .". Sections 237 and 238 of the Code restrict the jurisdiction of a Criminal Court as to the category of cases in which` it will have the power to convict an accused for an offence different from that, for which he was specifically charged. These restrictions are plainly inconsistent with the all‑pervasive provision in section 6(4) of the Act, and therefore shall cease to have effect as against the latter provision. This makes it entirely unnecessary to consider for the relevant purpose, whether the offence proved against respondents Nos. 1 and 2 is such of which they might have been charged in the alternative or that whether the offence proved against could be considered as "minor offence" for the purpose of section 238, Cr. P. C.

23. On the proved facts listed in earlier part of this judgment, respondents Nos. 1 and 2, in our opinion, have committed the offence of fabricating false evidence as defined in section 192, P. P. C. Omitting the sentences which do not bear on the case proved against the two respondents, section 192 would read: "Whoever causes any circumstance to exist . . . . . . . intending that such circumstance, . . . . . may appear In evidence ..... In a proceeding taken by law before a public servant as such, and that such circumstance, . . . . so appearing in evidence, may cause any person who in such proceeding to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence"." The offence of intentionally fabricating false evidence in any proceeding whether judicial or otherwise is a complete offence by itself, which so far as the proceeding is otherwise than judicial, is punishable under the second paragraph of section 193, P. P. C. with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.

24. The false report by respondent No. 1 made to the Patwari on 11.8‑60 about the gift of land by Mst. Thari in his favour on the basis of which entry 415 was made roznamcha wagiati clearly amounted to bringing into existence of "a circumstance" on the basis of which mutation 371 was entered and laid before Hail Mansab Khan, the Naib‑Tehsildar P. W. 3, who acting on such circumstance formed an opinion about the gift of land by Mst. Thari in favour of respondent No.

1. In this view of the matter, the cases against respondents Nos. 1 and 2 become indistinguishable for both become principals in the first degree in so far as each contributed equally to the causation of the various circumstances leading to the attestation of the false Mohammad mutation by Haji Mansab Khan Naib‑Tehsildar in favour of respondent No.

1. It cannot be gainsaid, that unless Muhammad respondent No. 2 as the village Lambardar identified the woman Gul, J appearing before the Naib‑Tehsildar as Mst. Thari, he would not have had attested the mutation. Even earlier unless the respondent No. 2 had verified the impugned gift before the Girdawar, the mutation would not have been laid before the Naib‑Tehsildar for attestation. Therefore respondent No. 2 did not merely abet the fabrication of false evidence but himself fabricated false evidence as defined in section 192, P. P. C. Khawaja Mushtaq Ahmad, learned counsel for respondents 1 and 2, however, relied on clause (b) of subsection (1) of section 195 of the Criminal Procedure Code to urge that in the absence of a "complaint in writing" by Haji Mansab Khan Naib‑Tehsidar respondents 1 and 2 cannot be convicted of an offence under section 193, P. P. C. Section 195(1) (b) of the Criminal Procedure Code reads "195.‑‑(1) No Court shall take cognizance‑ (a)

(b) of any offence punishable under any of the following sections of the same Code, namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, accept on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or A plain reading of the above provision makes it clear, that complaint in writing by a Court is necessary only if the offence of the relevant kind is committed in or relation to any proceedings in any Court. It is idle to suggest that a mutation officer is a Court. Hence limitation of section 195, Criminal Procedure Code, is not attracted to this case. It yet remains to be seen whether respondents 1 and 2 had sufficient notice of the accusation of fabricating false evidence and had an opportunity to defend themselves against that accusation. The case was tried as a summons case as required under subsection (3) of section 6 of the 1958 Act and therefore normal charge with reference to any particular offence as defined Pakistan Penal Code or elsewhere was necessary and therefore none was framed. On the other hand, particulars of the accusa tion of fabricating false evidence were put to each of the two respondents in explicit terms at the commencement of the trial as it would be clear from the following question put to each of the two respondents, with alight verbal amendment depending upon the accused to whom the question was addressed.

27. In the face of this comprehensive question couched in clear terms respondents Nos. and 2 cannot turn round to complain that they bad no sufficient notice of the accusation of fabricating false evidence against them. And indeed no complaint was made on that account on the re‑hearing of the case on 5‑7‑73.

28. For the foregoing reasons the offence of giving and fabricating false evidence for being used in mutation proceedings before Haji Mansab Khan Naib‑Tehsildar (P. W. 3) is brought home to each of the respondents Nos. 1 and 2 beyond any reasonable doubt. Accordingly we accept this appeal, set aside the judgment of the learned Single Judge, but alter the conviction of each of the respondents Nos. I and 2 to that under the second paragraph of section 193, P. P. C. and sentence him to rigorous imprisonment he has already undergone and to a fine of Rs. 500 and in default of payment of fine to a further rigorous imprison ment for three months each.

29. A copy of this judgment shall be sent to the Minister of Law and Parliamentary Affairs, for information and at remedial legislation which the Federal Government might deem proper to undertake in the light of observations in paragraphs 17 to 19 of this judgment. K.B.A. Appeal accepted.