2020 P Cr (PLP)

MUHAMMAD SHERAZ KIANI, J.

The above titled appeals have been directed against the judgment passed by the learned Judge Ehtesab Court, Mirpur on 17.10.2018, whereby the appellants, Muhammad Shafique, Qurban and Zia Ahmed Minhas were convicted.

2. Precise facts forming background of the instant appeals are that complainant, Muhammad Rafique filed a written application on 06.03.2008 before Ehtesab Bureau stating therein that he purchased plot No.33 Block II Phase II Sector Mujahid Town measuring 1 kanal from Muhammad Qurban convict-appellant on 24.03.2005 in lieu of Rs.2,50,000/-. It is alleged that Muhammad Shafique, accused son of accused Muhammad Qurban, was an employee in MDA (Mirpur Development Authority), who came to his house along with Khaliq Sarwar alias Zangi, Ansar Najeeb, Basharat Hussain and told that his father, Qurban was the real owner of the disputed plot and he also showed a file of plot in question, while Khaliq Sarwar and others assured him that plot had already been allotted in the name of Muhammad Qurban. On the very next day, complainant, Muhammad Rafique went to the office of MDA wherein he met convict accused Zia Ahmed Minhas the record-keeper of Mujahid Town, Mirpur, who also affirmed the contention made by Muhammad Shafique that Muhammad Qurban was the owner allottee of the said plot. On this confirmation/assurance complainant, Muhammad Rafique went in Court area and got executed agreement-to-sell in respect of the said plot in consideration of Rs.2,50,000/-, however, the attesting authority before handing over him the deed directed him to produce verification from MDA about the genuineness of plot. Then the complainant went to the office of MDA, wherein it was found that the said Plot No.33 of Block II phase II Sector Mujahid Town, Mirpur measuring 1 kanal was in the ownership of one Muhammad Rasheed, thus, a fraud and forgery has been alleged against the convict-appellants Muhammad Qurban, Muhammad Shafique and Zia Ahmed Minhas.

3. On this application, the Ehtesab Bureau started investigation/ inquiry and after completion of investigation/inquiry, the convict-appellants were found involved in the offences under sections 109, 409, 471, 468, 467, 419, 420, A.P.C. and 11 of The Ehtesab Bureau Act, 2001, as such they were arrested. On 03.02.2011, the convict-appellants were examined under section 265/D, Cr.P.C., wherein they pleaded not guilty and opted for the trial of case, upon which the prosecution was directed to produce evidence. The prosecution produced 18 P.Ws. On completion of prosecution evidence, an opportunity was provided to the convict-appellants under section 342, Cr.P.C. to furnish their explanation about the allegations and evidence brought on record against them. The convict appellants again pleaded that false and fabricated allegations have been leveled against them and they are not guilty. They also refused to produce evidence in defence and also failed to record their statement on Oath under section 340(2), Cr.P.C.

4. The learned Judge Ehtesab Court, Mirpur after due process of law convicted the appellants and awarded sentences. Appellant, Muhammad Shafique was awarded 10 years' S.I under section 409, A.P.C. along with fine of Rs.2,50,000/- under sections 467, 468, 471, A.P.C., for 10 years' S.I., under section 11 of Ehtesab Act, 2001 for 10 years' SI, in case of non payment of fine he shall undergo S.I of six months. Convict-appellant, Muhammad Qurban was also convicted and awarded sentence of 7 years' S.I. and fine of Rs.2,50,000/-, under sections 419, 467, 471, A.P.C., for 5 years' SI under section 109, A.P.C., for 5 years' S.I. under section 11(2) of AJ&K Ehtesab Act, 2001, for 5 years' S.I. Convict-appellant, Zia Ahmed Minhas was also convicted under section 409, for 5 years' S.I. under sections 419, 468, 471, A.P.C., for 5 years' S.I. under section 109, A.P.C. In case of non-payment of fine, they shall undergo 6/6 months' S.I. The convict-appellants were also given the benefit of section 382(B), Cr.P.C. through the impugned judgment dated 17.10.2018. Feeling aggrieved and dissatisfied with the aforesaid judgment, the convict-appellants have challenged the same through separate appeals.

5. Sh. Masood Iqbal, Advocate appearing on behalf of convict-appellants, Muhammad Shafique and Muhammad Qurban argued that the learned Judge Ehtesab Court, Mirpur while passing the impugned judgment fell in grave error of law and facts. He submitted that the allegations levelled against the convict-appellants are not proved by the prosecution and no cogent and convincing evidence whatsoever; has been brought on record. The learned counsel further submitted that, no embezzlement is proved; but the learned Judge Ehtesab Court without appreciating the evidence in its true perspective arrived at wrong conclusion. He maintained that all the oral as well as documentary evidence produced in the reference is not sufficient for conviction. Fake and fictious documents have been produced and the other oral evidence produced before the trial Court is hearsay and the prosecution has not established any mens rea against the appellants. The learned counsel vehemently argued that it was enjoined upon the learned Ehtesab Bureau to complete the inquiry within a period of one year as envisaged under section 21 of Ehtesab Bureau Act, 2001, therefore, proper procedure was not adopted and the learned Ehtesab Court, Mirpur was not competent to entertain the reference, as such the conviction order passed against the appellants-convict is completely against the law. The learned counsel argued that the case of the prosecution is full of doubts and the benefit of the same must be given to the convicts. He added that convict-appellant, Muhammad Qurban is an old aged person and he was also not a government or public servant, therefore, sections 409, APC and 11 of Ehtesab Bureau Act, are not attracted against him. The learned trial Court also violated the requirement of section 367, Cr.P.C. Finally, the learned counsel prayed that by accepting the appeals, the impugned judgment may be set aside and the convict-appellants may also be acquitted of the charge. In support of his contentions, the learned counsel referred the following authorities;- 1. 2015 SCR 533 2. 2016 YLR 2547 3. 2018 PCr.LJ 1409

6. Raja Inamullah Khan, Advocate appearing on behalf of the convict-appellant, Zia Ahmed Minhas, filed written arguments wherein it is contended that the reference has been filed after the delay of one and half years and according to section 21 of Ehtesab Bureau Act, 2001, it was necessary to complete the inquiry within a period of one year, as such it was enjoined upon the learned Ehtesab Court to follow the procedure laid down by law, which has been contravened. It is further averred that the allegations levelled against the appellant, Zia Ahmed Minhas were not proved and even the writing expert, Ch. Munir, whose evidence was very much important for just decision of the case was also not produced before the Court for recording his statement, as such, the case against the convict-appellant is not proved. It is further averred that no other employee in the department was tried and produced as witness and it was not possible that only one person could give the alleged verification, therefore, the whole prosecution case is highly doubtful. No recovery of any record was made against the convict-appellant that he misused his authority during his job period. It is contented that the P.Ws. which were produced before the trial Court under section 540, Cr.P.C. had not supported the prosecution version and on that reason these witnesses have not been cited by the prosecution and they are impartial witness. It is prayed in the written arguments that by accepting the appeal, the impugned judgment may be set aside and convict-appellant, Zia Ahmed Minhas may also be acquitted of the charge.

7. Javed lqbal Satti, the standing counsel appearing on behalf of Ehtesab Bureau, while controverting the arguments raised by the learned counsel for the convict-appellants, submitted that the case against all the convict-appellants is proved. He further argued that prosecution produced sufficient oral as well as documentary evidence against the convicts. The learned counsel further submitted that all the P.Ws. produced by the prosecution have unanimously supported the case. The convict-appellants are found guilty of the offences levelled against them and they failed to defend their case. The learned counsel defended the impugned judgment on all counts and craved for dismissal of the appeals. In support of his contentions, the learned counsel referred the following authorities;- 1. 1995 SCR 344. 2. 2000 SCR 1230. 3. 2001 SCR 268. 4. 2009 SCR 71. 5. 2017 PCr.LJ 731 6. 2016 SCR 557.

8. We have heard the learned counsel for the convict-appellants, Muhammad Shafique and Qurban as well as learned Standing counsel appearing on behalf of Ehestab Bureau and also given our due consideration to the written arguments filed on behalf of convict-appellant, Zia Ahmed Minhas with great care.

9. A contemplate perusal of the record reveals that the allegations levelled against convict-appellants, Muhammad Shafique and Muhammad Qurban are that while committing fraud and forgery they sold Plot No.33 Block II Phase II Sector Mujahid-Town, Mirpur measuring 1 kanal to complainant Muhammad Rafique on the basis of forged documents prepared and used by them, and the allegation against convict-appellant, Zia Ahmed Minhas, who was working in the office of MDA as a Junior cleric/Record-Keeper is that he gave verification and affirmed that Muhammad Qurban is the real owner of disputed plot and he also issued attestation/authentication in this regard, although the real owner allotee was Muhammad Rasheed, thus, he also committed abetment of the fraud and forgery, through which the complainant was deprived of his money by cheating. In support of its case, the prosecution produced 18 P.Ws.

10. At the very outset, we will scrutinize the evidence of important witnesses, from where it could be ascertained that whether the accused-appellants are connected with the allegations levelled against them or not?.

11. P.W. Muhammad Rafique, (complainant), deposed in his statement that convict-appellant Muhammad Shafique and Qurban sold him the Plot No.33 in lieu of Rs.2,50,000/- and convict-appellant, Zia Ahmed Minhas, who was the record-keeper in the office of MDA issued verification that the disputed plot is in the ownership and possession of convict-appellant, Qurban Hussain and he also showed file of the disputed plot, however, later on when the complainant/P.W. moved an application before the competent authority for revising purpose from where he came to know that no such plot was ever allotted or purchased by convict, Qurban. It is relevant to mention here that Ch. Muhammad Rasheed/P.W, who is stated to be the real owner of the disputed plot No.33 also appeared as prosecution witness. In his statement, he deposed that he is owner of the disputed plot No.33 and the same was allotted to him in the year 1996 and when he received a notice for revising, he deposited Rs.2,45,158/- and he has not executed any document, sale deed/Agreement-to-sell or any affidavit with regard to the disputed plot to anyone.

12. Arshad Mehmood and Ejaz Shamim also appeared before the Court as P.Ws. and they both affirm that on the direction of convict Qurban they wrote Power-of-Attorney "Ex.PGG" and agreement to sell "Ex.PFF" with regard to plot No.33 through which the same was sold to the complainant. Furthermore, two other important P.Ws. namely, Ansar son of Najeeb and Basharat Mehmood, who are stated to be witnesses of documents power of attorney "Ex.PGG" and agreement to sell "Ex.PFF" appeared before the Court and deposed that they are marginal witnesses of these documents and in their presence both these documents were written and executed and they also put their signatures as Ex.PGG/2, Ex.PFF/4, Ex.PGG/4, Ex.PGG/5 and they also affirm that through these documents, accused Muhammad Qurban sold the disputed plot No.33 in consideration of 2,50,000/- to Muhammad Rafique, complainant.

13. P.W. Ch. Arshad Mehmood stated before the Court that he was working as AC/Sub-Registrar Mirpur and general power of attorney titled "Muhammad Qurban v. Muhammad Rafique" was placed before him for attestation and he put his signature on the document Ex.PGG as Ex.PGG/6 with the consent of the parties.

14. P.W. Syed Muhammad ldrees, Junior clerk office of MDA in his statement deposed that in his presence the recoveries of files with regard to plot No. 50 measuring 10 marlas situated in sector Mujahid Town phase I Usman C Block Mirpur allotted in favour of Muhammad Qurban and File Ex.P-3 with regard to plot No.33 measuring one kanal allotted in favour of Muhammad Rasheed were made and recovery memo "Ex.PF" was prepared and he put his signature Ex.PF/1, as a witness therein.

15. It may be stated here that suggestions were put to all the P.Ws. from the defence side that documents were not prepared by them, however, they miserably failed to prove their stance. It is also relevant to mention here that files of different plots and upon which the admitted noting/writing made by the convict, Zia Ahmed Minhas were also matched with false the attestation/verification given by him regarding plot No.33 (Ex.PE) and after examination, the expert confirmed that the false verification was given by convict, Zia Ahmed Minhas and it reveals from the office record that the convict, Zia Ahmed Minhas had written "Ex.PE".

16. Furthermore, it is important to note here that writing/ verification "Ex.PE", which was issued by convict, Zia Ahmed Minhas was also recovered during inquiry/investigation and the same was sent for expert analysis along with the admitted documents/writing whereupon the convict, Zia Ahmed Minhas wrote some notes and also put his signatures to Director Technical Expert Directorate FIA Islamabad on 20.08.2010 as recovery memo "Ex.PNNN", which was returned on 24.08.2010 and the expert opined as under;- "Finding. The examination of documents in the above mentioned case has revealed that the questioned urdu writing marked as 'F' on the back of the letter No. EO/6470/96 dated 18.06.1996, is similar in characteristics with the corresponding specimen and routine writings of the suspect Zia Ahmed Minhas, marked as G to G/8 and D to D/4. The questioned signature has been executed in disguised manner, therefore, the specimen and previous routine signatures of the suspect Zia Ahmed Minhas of the same kind and pattern as questioned signatures Ex.C already explained vide our earlier letter No.103/C/TW/FIA/2010, is essential to prove the authorship of the questioned signature Ex. C All the factors such as formations, connections, alignments, initial and final impulses, proportional sizes, abbreviations, speeds, slants, curvatures and angles, line quality were taken into consideration while forming the above mentioned opinion." The above captioned findings were given by one Syed Muneer Hussain Shah, Assistant Director Technical Directorate, FIA, Islamabad, however, he died during the trial of the case and on his behalf the relevant Officer Ch. Sajjad Ahmed, DIG, appeared as witness. The said witness also affirmed the signature of the author and authenticity of the documents from "Ex.PH to Ex.PH/1/8", therefore, the objection raised by the learned counsel for the convict-appellants that writing expert did not appear before the Court as witness in support of his opinion/finding, as such the same has no evidentiary value is hereby repelled because, he died during trial and on his behalf responsible officer of the department who was acquainted with the signatures of the expert appeared as witness. Furthermore, it may be stated here that normally it is not safe to treat expert evidence as to handwriting sufficient for conviction, it should be supported by other evidence, but at the same time it is important to note here that opinion of an expert regarding any writing or signature would be relevant and admissible to reach a definite conclusion. My this view finds support from a case reported as "PLD 2007 Pesh. 83", wherein it was held as under;- "The most essential requirement of law is that an expert on particular subject whether Science, Art, or Law including Muhammadan Law must be a master in the relevant field because of special study, training, experience and extensive research work carried out. The opinion of such an expert alone would be relevant and admissible."

17. Moreover, it is important to note here that P.W. Raja Muhammad Rashed, Inspector, the investigating officer Ehtesab Bureau during his statement confirmed the whole proceedings, recoveries, statement of witnesses recorded under section 161, Cr.P.C, parcels which were sent for expert opinion, the preparation and completion of reference and after completion submission of reference Ex.PAA. It reveals from the record that this witness was put under lengthy cross-examination by the learned counsel appearing on behalf of the accused-appellants; however, they failed to extract anything from him favourable to the accused.

18. So far as the contention of the learned counsel for the convict-appellants that actually the dealing of plot between the complainant and accused, Qurban and others was not of plot No.33 and transaction between the parties was of plot No.50 measuring 10 marlas. In this regard, we have gone through the record as well as evidence, this version is belied by the evidence as the relevant documents of agreement to sell and power of attorney through which the transaction was made, pertain to plot No. 33 and this fact was also admitted by the accused-appellants. Furthermore, clerk of the office MDA/record keeper, Zia Ahmed Minhas also gave attestation/verification of the disputed plot No.33 through "Ex.PE"; therefore, this contention is hereby repelled.

19. So far as the contention of the learned counsel for the convict-appellants that through amendment made in subsection (6) of section 21 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, it was enjoined upon the learned Ehtesab Bureau to complete the inquiry/investigation within a period of one year, failing which, the cases shall be deemed to have been abated without any further action and consigned to record. In this regard, it is relevant to note here that the aforesaid Ordinance II of 2010, made Act of Assembly through Act V of 2010, dated 17.06.2010, whereby, Ehtesab Bureau respondent was bound to complete inquiry or investigation within a period of one year from the receipt of complaints as per amendment in subsection (6) of section 21 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, through (third amendment), Act, 2010. The aforesaid subsection (6) of section 21 reads as follows;- "

21. Cognizance of offence;- (1). ........... (2) ............... (3) ............... (4) ............... (5) ............... (6) Any inquiry or investigation under this Act, shall be completed as expeditiously as possible: Provided that if any inquiry or investigation initiated by Ehtesab Bureau under clauses (a) and (b) of subsection (2) respectively, has not been completed within one year from the date of receipt of the complaint or taking action, as the case may be, shall be deemed to have been abated and such cases shall, without any further action, be consigned to the record: Provided further that the delay, if any, caused by an act of the accused shall not be counted towards the period of one year. A bare reading of subsection (6) of section 21 of the said Act makes it abundantly clear that any inquiry or investigation shall be completed as expeditiously as possible. It is provided that if an inquiry or investigation initiated by Ehtesab Bureau under clauses (a) and (b) of subsection (2) respectively, has not been completed within one year from the date of receipt of the complaint or taking action, as the case may be, shall be deemed to have been abated and such cases shall, without any further action, be consigned to the record. It is further provided that the delay, if any, caused by any act of the accused shall not be counted towards the period of one year. However, it clearly mentions in clause 1 of subsection (2) that it shall come into force at once and shall be deemed to have taken effect from 13.06.2009, therefore, we are of the considered view that the cases of convict- appellants do not come within the purview of subsection (6) of section 21 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 vide (Third Amendment Act, 2010). As the inquiry/investigation was initiated before the said amendment and through any such amendment the legislature gives effect ordinarily prospectively and not retrospectively, such power is subject to certain constitutional and judicially recognized restrictions. According to the canons of construction, every statute including amendatory statutes, prima facie, is prospective, based on the principle of nova constitutio futuris formam imponere debet, non praeteritis' (which means a new law ought to regulate what is to follow, not the past, as per Osborn; Concise Law Dictionary); unless it is given retrospective effect either expressly or by necessary implication. In other words, a statute is not to be applied retrospectively in the absence of expressed enactment or necessary intendment, especially where the statute is to affect vested rights, past and closed transactions or facts or events that have already occurred. As the complaint was instituted against the convict-appellants in the year 2008 and the amended subsection 6(6), of Act, supra has been given effect from 13.06.2009, hence, the same could not be read in cases of convict-appellants retrospectively. The aforesaid view finds support from case reported as "Nizam Din and others v. Custodian and 15 others" (2011 SCR 390), wherein, at page 400 of report, it was opined as under;- "The golden principle of interpretation of statutes is that no statute is to be constituted to have retrospective effect unless its language so necessitates or unless it is expressly so provided. Where a matter stands decided and the decision attains finality as a transaction past and closed, the subsequent amendment in the law will not affect the decision in absence of express intention of the law if it touches a right or existence of a right at that time unless expressly provided, it will not operate retrospectively." The similar point came under consideration before the apex Court of Pakistan in case titled "Zila Council Jehlum through District Coordination Officer v. Messrs Pakistan Tobacco Company Ltd. and others" [PLD 2016 SC 398]. At page 405 of the report, it was held as under,- "Although the Legislature can Legislate prospectively and retrospectively, such power is subject to certain constitutional and judicially recognized restrictions. According to the canons of construction, every statute including amendatory statutes is prima facie prospective, based on the principle of nova constitutio futuris formam imponere debet, non praeteritis (which means 'a new law ought to regulate what is to follow, not the past, as per Osborn; Concise Law Dictionary); unless it is given retrospective effect either expressly or by necessary implication. In other words a statute is not to be applied retrospectively in the absence of express enactment or necessary intendment, especially where the statute is to affect vested rights, past and closed transactions or facts or events that have already occurred. This principle(s) is attracted to fiscal statutes which have to be construed strictly, for they tend to impose liability and are therefore, burdensome (as opposed to beneficial legislature). Furthermore, it is not only the wording/text of the statute which is to be considered in isolation; we are not to examine simpliciter whether such, law has a retrospective effect or not, rather it has to be examined holistically by considering several factors such as, the dominant intention of the legislature which is to be gathered from the language used, the object indicated or the mischief meant to be cured, the nature of rights affected, and the circumstances under which the statute is passed."

20. So, far as the objection of the learned counsel for the convict-appellants that prosecution failed to prove its case through cogent and convincing evidence and there are contradictions in the statements of witnesses, as such, on the basis of such evidence conviction cannot be awarded to convict-appellants. In this regard, it is relevant to mention that, we have examined the evidence and found that there is no material contradiction in the statement of prosecution witnesses. The witnesses are consistent in their stand. No material contradictions or improvements could be pointed out by the learned counsel representing the appellants in the statements made by the witnesses at the trial. Furthermore, the witnesses were subjected to lengthy cross-examination, but nothing favourable could be extracted by the defence. Moreover, it is by now settled principle of law that minor discrepancies in the statement of witnesses are to be overlooked, reference can be made from a case reported as "2010 SCMR 1791"

21. As far as the contention of the learned counsel for the convict-appellants that any mens rea was not proved against the convict-appellants is concerned, in this regard, it is relevant to note here that criminal liability stems from criminal intent not by presumption or analogies to be drawn from circumstances. Such intention is to be proved by the prosecution by placing on record the evidence that the accused knew that what they were doing was illegal as that it was done dishonestly and in a deceitful manner. It is proved from the record that the convict-appellants committed fraud by sale of plot to complainant knowingly they were not the owner of the disputed plot, as such this contention is also repelled.

22. As far as the objection raised by the learned counsel for the convict-appellants that the requirement of section 367, Cr.P.C. was also not fulfilled, while making correction in the judgment is concerned, in this regard, it is relevant to mention here that earlier while passing the order on suspension application filed by the convict-appellants, this Court had already discussed this point in detail, however, for the safe administration of justice, it is to be noted here that the learned Court below while passing the impugned judgment has made the correction which was clerical in nature, therefore, the objection is hereby repelled.

23. So, from the overall evidence and connected material, it transpires that convict-appellant Muhammad Shafique, intentionally, by making a preplan, by misusing his authority being an employee in the office of MDA prepared a fake and fictitious file of plot No.33 in the name of his father, Qurban, accused and they were fully abetted by accused Zia Ahmed Minhas, who issued fake and fictitious verification for the purpose of sale-deed, while the accused, Qurab, who is the father of accused Shafique, knowingly that plot No.33 is not allotted to him, as he had not applied for the questioned plot nor deposited any earnest amount in MDA and thus collusively, with the help of his accused son, prepared fake and forged documents and obtained money from the complainant fraudulently, as such, the allegations levelled against all the three accused are fully proved.

24. We have gone through the impugned judgment. No illegality and misreading of evidence has been committed in finding the appellants as guilty. The judgment is based upon evidence with good reasoning to the extent of conviction; however, while awarding the sentence some legal mistakes have been committed, which are noticed. According to the concluding para of the judgment whereby accused-appellants were convicted, convict-appellant, Muhammad Shafique has been convicted for imprisonment of 10 years under section 409, A.P.C. which relates to criminal breach of trust by a public servant or banker etc. Convict-appellant, Qurab was awarded sentence under section 419, A.P.C. along with other offence as well. Section 419, A.P.C. pertains to cheating through personation; Instead of awarding punishment under section 11 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001. Section 11(A) has been referred in the last para of the judgment. Convict-appellant, Zia Ahmed Minhas has also been convicted under section 409, A.P.C. for imprisonment of 5 years' S.I., he has also been convicted under section 419, A.P.C. along with other offences as well. Again, while awarding punishment of 10 years imprisonment instead under section 11 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, wrongly section 11(A) has been written therein. Furthermore, convict-appellants, Muhammad Shafique and Zia Ahmed Minhas have been disqualified for life from holding any public office.

25. Now, in view of above errors noticed hereinabove, the question arises whether the offences under which the accused-convicts have been awarded punishment are attracted against them are not? In this regard, it is relevant to note here that, if a public servant or banker, merchant or agent commits breach of trust he is liable to be punished under section 409, A.P.C. The definition of criminal breach of trust has been given in section 405, A.P.C. which reads as under;- "405, A.P.C. Criminal breach of trust. Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust." According to above definition, if any such person is entrusted with a property and dishonestly he converts it to his own use or, dishonestly misappropriates or disposes of that property in violation of any direction of law or and legal contract, express or implied, touching the discharge of such trust, is said to have committed criminal breach of trust.

26. In the present case, the convict-accused have not been entrusted with any property by MDA which they misappropriated or converted to their own use in violation of law, rather allegation against them is that they collusively prepared a file of the plot No.33 by making fictitious, fake and forged entries and signatures etc. So, it is the case of forgery, fraud and misuse of powers as both the convicts i.e Muhammad Shafique and Zia Ahmed Minhas are employees of MDA and by misusing their authority, they took advantage of their posts, deceived the complainant and deprived him from his valuable money through fraudulent transaction of the said plot, but the ingredients which constitute breach of trust are not present in this case, so the punishment awarded to convicts-accused under section 409, A.P.C. is liable to be set aside.

27. The learned Court below has also awarded punishment under section 419, A.P.C. as well. Section 419, A.P.C. provides punishment for those offenders who cheat by personation but in the present case, the convict-appellants committed fraud and forgery. The definition of personation is given in section 416, A.P.C., which reads as under;- 416, APC. Cheating by personation:- A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is." Under the above definition given in the statute when a person poses or pretend to be some other person or authority which he is not, called as made personation. For example;- If property belongs to "A", who died and any other person in order to deceive an innocent citizen pretends himself to be as "A" and takes any money from "B" by executing some false documents in capacity of "A" it would be personation for cheating a person. In the present case, no such personation is complained rather, forgery and fraud has been committed, so section 419, A.P.C. also cannot be applied and punishment under said section is also liable to be set aside.

28. So far as the punishment given under section 11-A of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, it appears to be a clerical mistake, in fact the learned Court below has awarded punishment under section 11 of the Act and word "A" being additional and superfluous shall stand deleted.

29. It may also be stated here that when an accused person is convicted under Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, he can be disqualified for a period of 10 years, but the learned Court below while passing the impugned judgment disqualified both the convict appellant;- Zia Ahmed Minhas and Shafique for life which is not sustainable, because section 16 of the Act provides a period of 10 years for disqualification. So, this punishment is also liable to be amended.

30. Furthermore, the learned Court below also awarded punishment separately under section 109, A.P.C. Although all the convict appellants, while committing offence abetted each other collusively and they are liable to be punished under section 109, A.P.C., but at the same time to award punishment separately under sections 471 and 467, A.P.C. as well as under section 109, A.P.C., particularly to Zia Ahmed Minhas is not appropriate.

31. Mainly the allegation against the official convict appellants is that they have while making forged documents and misusing their authority practiced fraud upon complainant Rafique, deprived him from his valuable money of Rs.2,50,000/-. One can argue that these allegations do not come within the definition of corruption and corrupt practices. In view of the facts of present case, clause (f) of section 10 of the Act says that if holder of a public office misuses his position in any manner to gain any favour for himself or for any other person or fails to exercise his authority to prevent such undue gain and favour is also guilty of corrupt practices. The definition of corruption and corrupt practices is given in section

10. Relevant clause (f) of section 10 of the Act, reads as under;

10. Corruption and Corrupt Practices:- (1). A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices;- (a) ........................... (b) ........................... (c) ........................... (d) ........................... (e) ........................... (f) misuses his authority in any manner so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so or willfully fails to exercise his authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority;"

32. In the present case when both the convict-appellants Zia Ahmed Minhas and Muhammad Shafique were knowingly and deliberately involved in preparing fake and fictitious documents of allotment pertaining to plot No.33 and particularly convict, Zia Ahmed Minhas, who has also given verification as a record keeper obviously to gain benefits and favour for Muhammad Shafique and his father Muhammad Qurban. If both these accused-convicts were not involved in this illegal activity, they could have abstained themselves or could report the matter to the head of office, but they have not done so. So, it cannot be said that no act of corrupt practices can been attributed against them, because they facilitated and abetted the offences. The facts of fake documents prepared in shape of allotment order etc. and used for executing agreement to sell and thus they gained undue benefits by deceiving and receiving money of Rs.2,50,000/-, as such offence under sections 420, 467, 468 471, 109, A.P.C. read with section 11 of the Act are proved against the convict-appellants.

33. Punishment for offence of corruption is provided in section 11 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 instead of offence 419, A.P.C., the convicts have committed the offence under section 420, A.P.C., as they dishonestly induced and cheated the complainant to give them amount of Rs.2,50,000/ on the basis of fake documents.

34. Now the question arises whether quantum of punishment awarded to convicts are just, appropriate and fair. While keeping in view the overall circumstances of the case, in our opinion punishment of imprisonment awarded to the convicts upto 10 years maximum seems harsh particularly in view of the previous record of the convicts and nature of offence. Although, no offence can be treated lightly but the amount involved in this case is of Rs.2,50,000/- and there is no previous criminal history of all the three convict-appellants, neither it has been alleged or established by the prosecution that all the three convicts appellants are hardened, desperate and dangerous criminals. They are not previously convicts, all these mitigating circumstances have not been considered by the Court below while awarding the sentences.

35. So, it would be in the interest of justice that quantum of punishment should be reduced, particularly; the maximum punishment of imprisonment is liable to be reduced. Hence, the punishment to Muhammad Shafique, who remained instrumental in the process of fabrication and forgery, should be 7 years imprisonment and other two convict-appellants, Zia Ahmed Minhas and Qurban are to be awarded 5/5 years imprisonment maximum in the main offences separately and it would serve the purpose. Therefore, in the light of what has been stated above by partly accepting the appeals, convict-appellant, Muhammad Shafique is awarded punishment under section 467, 468, A.P.C. read with section 109, A.P.C. for imprisonment of 7/7 years' R.I and under section 11 of Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 for 7 years imprisonment (Rigorous) and convict-appellant, Qurban is awarded imprisonment (R) of 5/5 years under sections 467, 468, 471, 420, A.P.C. read with section 109, A.P.C., separately and fine of Rs.2,50,000/-. In default of payment of fine convict Qurban shall undergo sentence of six months' SI. Convict-appellant, Zia Ahmed Minhas is awarded imprisonment of 5 years under section 11 of The Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 and 5/5 years' R.I. Under sections 471, 468, 420 read with section 109, A.P.C.. Convict-appellant Shafique and Zia Ahmed Minhas shall stand disqualified for holding or seeking any public office/post for 10 years instead of life. The convict-appellants are also given the benefit of section 382(B), Cr.P.C. The punishment awarded to the convict-appellants under sections 409 and 419, A.P.C. are hereby set aside. All the sentences shall run concurrently. With the above modifications, the appeals stand disposed of accordingly. Copies of this judgment shall be annexed with all the appeals. JK/49/HC(AJ&K) Order accordingly.