2002 PLP 1914 (YLR)

15. Muhammad Bashir Qureshi, Examiner of Questioned documents, Forenisc Science Laboratory, Lahore appeared as P.W.4 and stated that since 1968 he has been working as Handwriting Expert. He took one year training in to job from the Forensic Science Laboratory and examined thousands documents and appeared in Courts to testify them. In the instant case S.P. of Police Range Crimes, Lahore addressed letter, dated 28‑11‑1997 to the Director, Forenisc Science Laboratory for examination of question deed of exchange Exh.PA, one Mutation No.251 Exhs. PC and 29 routine documents Exh. R/1 to Exh.R/29 which were admitted signatures of G.F. Gebrial received in the office of Forenisc Science Laboratory on 29‑11‑1997. The case was marked to him for their examination and comparison. He examined the disputed English signatures marked as Q/1 to Q/6 on the three sheets of Exh.PA and Exh.Q/7 and Exh.PC with the admitted signatures of G.F. Gebrial marked R.1. to R.29. After comparison he was of the opinion that the disputed English signatures Q/1 to Q/7 did not bear identical characteristic with the signatures of G.F. Gebrial on documents R.1. to R.29. He submitted his report as Exh.PD which bear his signatures. He prepared enlarged photographs of the questioned documents and the signatures written with his remarks. Report is Exh.PE. Points of dis‑similarity have been mentioned in the enlargement of the documents.

16. Ahmad Daud, Junior Clerk, D.C. Office, Okara was examined as P.W.3 who stated that he brought record of Wasiqa No.2118, dated 25‑9‑1995. According to routine two photo copies of the deed are also prepared. He brought original application moved by Ishtiaq Ahmad Bhatti, Advocate, Okara as a Local Commissioner for exchange of land with Mst. Shamim through G.F. Gebrial as attorney. Photocopies of N.I.C. of G.F. Gebrial and accused Ishtiaq were also appended with the same. Exh. PB is attested copy of the application made by Ishtiaq Ahmad accused. On the exchange deed Exh.PA, on its back the signatures of G.F. Gebrial Q.3 were written and was signed by Ch. Nazir Ahmad Bhatti, Advocate according to the record Ch. Nazir Ahmad, Advocate as Local Commissioner produced the registered deed to the Sub‑Registrar and earlier on the application Exh.PB vide his vernacular order appointed Ch. Nazir Ahmad Bhatti as a Local Commissioner. The trial Court compared the attested copy of application Exh.PB with the original and returned the same. This witness was not cross‑examined.

17. Nazir Ahmad Bhatti, Advocate/Local Commissioner after having been granted pardon appeared as approver as P.W.1. He stated that he was appointed as Local Commissioner but through fraud practised by Abdul Haq and Ishtiq he was misled. Abdul Haq, Wasiqa Nawees Okara, Ishtiaq Ahmad and Muhammad Ali, Patwari accused came to him. Abdul Haq told him that: Ishtiaq was his friend and cultivated the land in Mauza Saidpur, Tehsil Depalpur by taking the land on lease from others including Mst. Shamim who was resident of Lahore. G.F. Gebrial is her husband and attorney. Ishtiaq told him that he wanted to buy the land but Mst. Shamin was not willing to sell it and as such he would get this land at every cost. He was told that he would be appointed as Local Commissioner and through a fictitious exchange deed they would secure the land. He consented to it. On 17‑9‑1995 the accused persons came Whim alongwith Islam‑ud‑Din. Abdul Hamid, Sarbrah Lambardar and Abdul Haq alongwith Ishtiaq accused. They had with them exchange deed Exh.PA, according to which 200 Kanals of land owned by Mst. Shamim was to be exchanged with 19 Marlas and 3 Sarsai of land situated in Cooperative Housing Society at 2/4‑L, Okara. In his presence Islam‑ud‑Din, Abdul Haq and Abdul Hamid, Serbrah Lambardar had witnessed this deed whereas the remaining signatures of the concerned persons and the witnesses were already present on the deed. G.F. Gebrial neither appeared before this witness nor was present. However, his signatures were already present on the deed. The witness stated that he never visited Lahore to meet G.F. Gebrial or his wife Mst. Shamim and portion A to A on the back of Exh.PA stood already written in vernacular and he also signed it at their instance. He appeared before the Sub Registrar and got the exchange deed registered. Portion B to B on Exh.PA also contained his signatures and this portion was also signed by Ishtiaq and Abdul Hamid accused. He stated that the exchange deed was the result of fraud to which he had also been made a party.

18. Kamal‑ud‑Din who was granted pardon by the Court appeared as approver as P.W.2 and stated that he was resident of village Saidpur and was an agriculturist by profession. He admitted that Mst. Shamim wife of 6.F. Gebrial owned 326 Kanals and 19 Marlas of land in his village. G.F. Gebrial was the husband and general attorney of Mst. Shamim. Ishtiaq accused had taken the land on lease. He had come to Lahore to see G.F. Gebrial and learnt that Mst. Shanum wanted to sell the land but when he met G.F. Gebrial in the year 1996 he was told that there was no desire to sell the land. 6/7 months later Ishtiaq told him that against 19 Marlas and 3 Sarsai of land he had taken in exchange 200 Kanals of land belonging to Mst. Shamim. Later on Ishtiaq and Muhammad Ali, Patwari told him that the remaining 126 Kanals of land owned by Mst. Shamim could be sold if he pays Rs.2 lacs in consideration of which they would give him 42 Kanals, 6 Marlas. He paid Rs.2 lacs to, both Ishtiaq and Muhammad Ali, Patwari and got mutation with respect to 42 Kanals, 6 Marlas sanctioned in his favour. At the time of sanction of mutation G.F. Gebrial was not present and the mutation was based on fraud. Out of remaining land of Mst. Shamim 32 Kanals was mutated in favour of Mst. Sakina wife of Muhammad Ali, Patwari while 10 Kanals of land was given to Ismail and the remaining 42 Kanals, 7 Marlas was mutated fraudlently in favour of Ishtiaq accused. When he came to know about this fraud he returned possession of the land to the son of G.F. Gebrial.

19. After closure of the prosecution evidence the accused were examined under section 342, Cr.P.C. Ishtiaq admitted execution of general power‑of‑attorney by Mst. Shamim in favour of her husband G.F. Gebrial. He admitted lease of land in his favour. He denied fraud being practised by him in connivance with other and stated that Mutation No.251 relating to sale was sanctioned on 28‑11‑1996 on which date presence of the parties was not required as their statements had already been recorded by the Revenue Officer on 11‑10‑1995. He further admitted execution of exchange deed, which, according to him, was correctly made and registered and that no forgery had been committed. As regards the testimony of Kamal Din and Nazir Ahmad Bhatti, Advocate he stated that they took a somersault in connivance with the complainant and are not dependable witnesses. In reply to the question as to why the prosecution has brought the case against him, it was stated that at the time of sale land measuring 326 Kanals, 19 Marlas was deserted and after sale he made it fertile which increased its value and a metalled road passed through the land. Since price of the land increased the complainant got greedy and manoeuvred the case against him. Earlier the complainant forcibly tried to occupy the land for which he got registered two F.I.Rs. bearing Nos. 190 of 1997 and 240 of 1997 with Police Station Hujra Shah Muqeem. The other accused also made similar statements.

20. Appellants produced D.W.1 Muhammad Arshad in defence who stated that G.F. Gebrial was friend of his father and his son came to him in the year 1997 and in the beginning of 1998. Since his father was a marginal witness of exchange deed and was requested by G.F. Gebrial to either become as witness or resile from his statement. Since his father did not agree a false case was registered. His father died in July, 1998. In cross‑examination he stated that he did not know G.F. Gebrial nor he knew anything about the exchange or sale.

21. Allah Ditta, Qanungo. appeared as D. W.3 and stated that he has brought register of Roznamcha Waqiati for the year 1995‑

96. According to Entry No.5, dated 5‑9‑1995 G.F. Gebrial in his capacity as general attorney of his wife Mst. Shanum in presence of Mehr Muhammad son of Suleman Yatti Dar identified by Muhammad Hanif Lambardar and in presence of Lal Din Dogar sold 476 Kanals, 2 Marlas and 126 Kanals, 4 Marlas in favour of Ishtiaq, 42 Kanals, 7 Marlas was soil to Kamal Din son of Masta, 42 Kanals, 6 Marlas in favour of Ismail and Mst. Sakina accused. The land was sold for Rs.4 lacs and it was mentioned in the report that G.F. Gebrial received whole of the consideration and Mutation No.251 was sanctioned. Similarly Mutation No.271 was sanctioned for exchange. This witness admitted in cross‑examination that Roznamch Waqiati was in possession of the Patwari Halqa who was also its scribe. Muhammad Ali accused was Patwari of Halqa to which entries pertained. All the entires were in the hand of Muhammad Ali, Patwari. He admitted that in Report No.5, dated 5‑9‑1995 signatures of G.F. Gebrail are not available. Mutations Nos.251 and 271 are in the hand of Muhammad Ali, Patwari and he was not present when the Patwari produced these mutations before the Consolidation Officer: He further stated that it was not in his knowledge whether the vendors appeared before the Consolidation Officer or not. Neither he was aware whether G.F. Gebrial signed mutation in presence of the Consolidation Officer.

22. Tausif Ahmad Chughtai, Handwriting Export appeared as D.W.4 and stated that he was given photostat copies of exchange deed, dated 17‑9‑1995, photostat copy of general power‑of‑attorney, dated 17‑8‑1992 and photocopy of the lease deed, dated 9‑1‑1993, copy of Cheque No.807711, dated 1‑7‑1995 and 807712, dated 28‑10‑1995, etc. He compared the signatures of G. F. Gebrial on the exchange deed on 17‑11‑1995 and other documents referred to above and found that all the signatures were in the same hand. His report is Exh.DQ. No credibility can attached to this witness as he had only compared the photostat copies of the documents and expressed his inability to know that photostat copies are not admissible in evidence. Original documents were not shown to him and the photostat copies were given by Ishtiaq for which he was paid professional charges. He did not mention from which institution .he received his education as an expert.

23. Learned counsel appearing in various appeals argued on behalf of the respective appellants at length. The main question agitated was that no fraud was committed, Gebrial in his capacity as attorney for his wife of his own free‑will and volition entered into the transaction of exchange resulting in the exchange deed and thereafter sold the remaining land through Mutation No.251. They stressed that no forgery or fraud with respect to any document was committed and it is only that the value of the land enhanced that Gebrial became greedy and tried to reverse the transactions by foisting a false case. It was further pleaded that a number of inquiries were held in which the appellants were exonerated. Lastly it was contended that the matter being purely of civil nature resort to criminal litigation amounted to arm twisting which has to be condemned.

24. I have heard in length on a number of dates counsel for the appellants and the complainant and have minutely perused the record.

25. Ishtiaq one of the appellants admits that Mst. Shamim as owner of the land and Gebrial her husband to be her attorney. He further admits that the land in question was given to him on lease. However, the moot point is whether the exchange deed was entered voluntarily by Gebrial in favour of Ishtiaq or was the transaction manipulated through forgery. Rana Sultan Mahmood, Inspector/Investigating Officer stated in reply to the question in cross‑examination that he went to the treasury and recorded the statement of Muhammad Afzal, Head Cashier about the issuance of the stamp paper to be used for the exchange deed. Register of issuance of stamp paper contained an entry which was signed by a Munshi having received the stamp paper. There was no signatures of any Wasiqa Nawees of the purchase of the stamp paper. Muhammad Afzal, Head Cashier could not tell in whose favour the stamp paper was issued. This piece of evidence, to begin with, proves that the stamp paper was not obtained by Attorney Gebrial. Evidence of Nazir Ahmad Bhatti, Advocate Okara as P. W.1 is very relevant to reach a just conclusion. Undoubtedly Nazir Ahmad Bhatti, Advocate was arrayed as an accused. He expressed his desire for becoming an approver alongwith Kamal Din son of Masta. Both these accused were examined in detail by the trial Judge and he came to the conclusion that it was out of remorse and feeling of guilt that the two accused wanted to become witnesses in the case after being granted pardon. Fully satisfying himself pardon was granted to Nazir Ahmad Bhatti, Advocate and Kamal Din, their ‑statements were recorded by the trial Court and after their examination as witnesses in the trial it was found that they have given true facts by giving testimony which was in complete accord with their statements trade to the trial Judge at the time of granting of pardon. I am aware that approver's, evidence has to be taken with a pinch of salt. However, none of Defence counsel pointed out any infirmity, legal or factual, to convince me that their evidence is otherwise tainted. Magistrate observed all formalities mandated by law in granting pardon to the accused for becoming an approver. Not a single ruling of the Superior Court was presented to show that the statement of the approver, for any reason be discarded from consideration. I, therefore, accept the statements of Nazir Ahmad Bhatti, Advocate who appeared as P.W.1 and Kamal Din son of Masta appearing as P.W.2. Besides their statements the ensuing paragraphs of discussion will show that we have corroboration lending support of their testimony.

26. Nazir Ahmed Bhatti's examination -in‑chief has been summarised earlier. Abdul Haq, Waseeqa Nawees in Okara Courts knew the Advocate since many. years both carrying their respective business within the premises of Okara Courts. This witness categorically stated that Abdul Haq Waseeqa Nawees prepared the document which he signed as a Local Commissioner. He further stated that neither G.F. Gebrial appeared before him nor went to get his signatures. He never went to Lahore to visit Gebrial or his wife Mst. Shamim. Abdul Haq, Ishtiaq and Muhammad Ali, Patwari were the persons who met him and disclosed their intention to commit fraud. The exchange deed evidenced transfer of 200 Kanals of land owned by Mst. Shamim with 19 Marlas, 3 Sarsai of land owned by Ishtiaq. In presence of this witness Islam‑ud‑Din, Abdul Haq and Abdul Hamid, Sarbrah Lambardar witnessed the exchange deed which contained the signatures of Gebrial having been already appended. It boggles a prudent mind as to why 200 Kanals of land deriving income of Rs.45,000 per annum irrigated by canal water as well as tube‑well installed therein would be exchanged for 19 Marlas of land at Okara when the owner of the land alongwith her husband and family members are permanent residents of Lahore. It could have well be understood that the owners would desire to shift to Okara by building a house in this 19 Marlas land only if they retained the agricultural land measuring 326 Kanals situated in Mauza Saidpur at a distance from Okara but when the agricultural land itself is being alienated leaving metropolitan city of Lahore and shifting to a small city like Okara without any visible gain is simply astounding: Exh.PB, dated 7‑9‑1995 being an application made to the Sub‑Registrar, Okara for the appointment of Local Commissioner was prepared by Abdul Haq. However, neither the Local Commissioner visited Lahore to get the signatures of Gebrial nor Gebrial came to Okara to sign it. Evidence of the Handwriting Expert who is totally an independent witness working in a Government Department clinches the issue that the exchange deed was the result of forgery practised by Abdul Haq, Muhammad Ali, Patwari in connivance with Ishtiaq the main architect of the whole Drama. Muhammad Bashir P.W.4 examiner of the questioned documents, Forensic Science Laboratory compared the admitted signatures of Gebrial having obtained from documents which he executed in the banks where he had his account with the questioned signatures PA and Mutation No.251 Exh.PC and found that Gebrial's signatures were forged on the two documents mentioned above. This witness was not at all cross‑examined regarding his opinion. Therefore, his statement has to be taken as gospel truth, there being no earthly reason why he should give a false statement. He is a Government employee and is paid from the Government exchequer. He was not privately employed by the party. His diploma in Forensic Science and experience having examined thousands of questioned documents remains unquestioned in cross‑examination. All the documents containing the admitted signatures of Gebrial were obtained strictly in accordance with law after seeking permission from the Sessions Judge and the producers of these documents were examined in Court as prosecution witnesses, gist of their evidence has been given earlier. The statement of Gebrial that exchange deed was fictitiously prepared after manipulating the same and that he never signed any page of the deed drives last nail in the coffin of the defence. No motive has been attributed to Gebrial to give false evidence. Possession of the exchanged land stood automatically transferred in favour of Ishtiaq as he was the lessee being in possession previously. The plea of the defence that the value of the land enhanced by the efforts of Ishtiaq is negatived by the failure to produce Khasra Girdawaries to show that, the land when given on lease for the first time was barren and fallow and it was with the efforts of Ishtiaq that it was converted into green pastures, therefore, the consideration for the exchange of 200 Kanals of valuable land with 19 Marlas of land though situated in a Housing Colony at Okara is, for a gross and inadequate consideration and is a clear to tell tale that the transaction is a result of fraud and forgery.

27. Sale of land measuring 126 Kanals, 19 Marlas in favour of Kamal Din, Ishtiaq, Sakina and Ismail through an oral Mutation No.251 Exh.PC is also based on fraud having been committed in active connivance with Muhammad Ali, Patwari.

28. Rappat No.5, dated 5‑9‑1995 Exh. PY in which it is stated that Gebrial attorney of Shamim appeared before having been identified by Muhammad Hanif, Lambardar and Kamal Din one of the vendees stating that he sold 126 Kanals, 19 Marlas to the vendees mentioned above for Rs.4 lacs and possession was delivered is nothing but a fairy tale story. This document was prepared and written by no one else but by Muhammad Ali, Patwari.

29. Allah Ditta, Qanungo appearing as D.W.3, witness of defence, states in clear words that the Roznameha Waqiati was in possession of Halqa Patwari who is also its scribe. He further stated that Muhammad Ali was Patwarf of Halqa Saidpur to which period the entry in the Roznamaha Waqiati related and Report No.5, dated 5‑9‑1995 is in his handwriting. On 5‑9‑1995 it has been proved from the evidence of Shehzad Tariq, Accounts Officer, Noon Brothers (Pvt.) Ltd. who appeared as P.W.6 that Gebrial worked in the private Enterprise alongwith him and the register of attendance for 5‑9‑1995 indicated that Gebrial was present in the premises of the firm at Lahore from 8 a.m. to 4‑30 p.m. Exh.P.6 was copy of the, attendance register which was compared with the original and‑found correct by the trial Judge. This witness has not at all been cross examined by the defence. Dr. Zia‑ur‑Rehman Siddiqui practised at Lahore while appearing as P.W.5 testified that on 5‑9‑1995 Gebrial came to his clinic at Lahore during his working hours from 5 p.m. to 8‑30 p.m. for checking up and he issued receipts Exh.PF and Exh.PJ and also certificate Exh.PH showing that Gebrial visited him on 5‑9‑1995. Evidence of P.W.5 and P.W.6, therefore, proved that Gebrial was in Lahore on 5‑9‑1995 from & a.m. to 8 p.m. Roznamcha Waqiati Exh.P.5 relating to Entry No.5, dated 5‑9‑1995 was entered sometime during the day. How on God's earth could Gebrial be present at Saidpur a village situated at a certain distance from Okara which city itself being 70 miles from Lahore is a complete mystery and only points to one thing that Exh. PY was a fabricated document prepared by Muhammad Ali, Patwari. This document nowhere has been signed by Gebrial.

30. Aftab Majeed, Magistrate who appeared as P.W.7 stated that he worked as Consolidation Officer from August, 1995 to March, 1997 at Okara and his jurisdiction extended to Depalpur and Renala Tehsil as well. He stated that Mutation No.251 which is Exh.PC and relates to the oral sale shows transfer of 126 Kanals from vendor Mst. Shamim through her attorney Gebrial in favour of four persons mentioned above was sanctioned on 28‑11‑1996 of which neither Mst. Shamim nor Gebrial appeared. Mutation was entered by Muhammad Ali, Patwari who also identified the vendor and the vendees alongwith Muhammad Hanif and Mehr Muhammad, Patidar. This witness states that an application was made by Mst. Shamim and Gebrial that they were not party to the transaction in Mutation No.251 and that a fraud was committed. He immediately made inquiries and doubting sanction of the Mutation he moved the Collector Okara to permit him to review the Mutation but before could take any constructive steps he was transferred. The witness stated in cross examination that he could not tell whether on 11‑10‑1995 Gebrial appeared having been identified by Muhammad Ali, Patwari, Lambardar and Patidar. However, this part of the statement is no help to the defence because on 5‑9‑1995 through Rappat No.5 in the Roznamcha Waqiati Exh. P.5 it has been proved beyond shadow of doubt that Gebrial never appeared admitting sale or transfer of possession, therefore, from the very beginning stance of Gebrial was that no oral sale was made on behalf of his wife Mst. Shamim for whom he acted as an attorney. Therefore, on 11‑10‑1995 Gebrial did not appear before Aftab Majeed who was then acting as Consolidation Officer.

31. Kamal Din P.W.2 whose gist of evidence has been produced earlier clearly stated that he was sold 42 Kanals, 6 Marlas by Ishtiaq and Muhammad Ali, Patwari and 2 lacs of rupees by way of sale consideration was given to Ishtiaq and Muhammad Ali. He has in clear words stated that Gebrial was not present at the time of sanctioning of Mutation which was result of fraud. However, the beneficiaries of the fraudulent transaction of sale were Mst. Sakina, Ismail alongwith Ishtiaq. This witness in his cross‑examination stated that out of fear of God he appeared as a witness after having been granted pardon and that Mutation of sale bearing No.251 was sanctioned after the death of Gebrial. The fraudulent sale is further substantiated by the facts that it has not been proved whether any sale price was paid to Gebrial by the vendees. Evidence of P.W.4 Muhammad Bashir examiner of questioned documents that signatures of Gebrial on Exh.PC which is Mutation No.251 did not tally with his admitted signatures corroborates that Mutation No.251 was a result of fraud and manipulation.

32. The much trumpeted argument of the defence counsel was that the exchange/sale was validly made by Gebrial acting as attorney on behalf of his wife Mst. Shamim and the same was challenged before the Civil Court, therefore, no criminal case could be registered as the civil Court was seized of the matter, is totally devoid of force. It is now a settled law that both civil and criminal proceedings can be taken simultaneously. However, the Supreme Court has in many judgments observed that by way of abundant caution criminal proceedings should be stayed and adjudication from civil forum‑should be awaited, but in the present case the defence has reproduced copy of the plaint of civil suit Exh.DO and Exh.DP filed by Gebrial against the accused but no further progress has been indicated, meaning thereby that either proceedings before the Civil Court were abandoned or they were decided against the accused, therefore, nothing can be said with certainty as to what happened before the Civil Court. There is no bar for initiating proceedings under the criminal law if dishonest intention to cause wrongful loss to the owner and wrongful gain to the perpetrator of the crime either through forgery or cheating is proved which is not lacking in the present case as discussed.

33. Accused have been moving various Revenue Authorities from time to time agitating that the matter was of civil nature and criminal Courts should be stopped to proceed further. However, none of the authorities gave any concrete finding but left the matter to be decided by the Courts of law. Even otherwise an inquiry by executive cannot be substituted for a full‑fledged trial before a Court of law. The inquiry report if any, becomes insignificant after a competent forum has given its finding of fraud and forgery.

34. The upshot of the discussion, therefore, is that the prosecution has proved its case beyond any shadow of doubt. The judgment of the Special Judge, Anti Corruption, Lahore convicting the appellants, is unexceptionable and based on proper appraisal of evidence which conforms to the judicial standard laid down by the superior Courts from time to time. It may not be out of place to observe that the trial Judge has been lenient in awarding the sentence. All the appeals are without merit and are accordingly dismissed. The judgment of the trial Judge, dated 18‑7‑2000 is maintained.

35. Muhammad Ishtiaq is in jail after having dismissed his appeal, he shall serve his sentence.

36. Muhammad Ismail was granted bail on 2‑8‑2000 on statutory ground. He shall be taken in custody and sent to jail to serve his remaining sentence his appeal having been dismissed.

37. Muhammad Ali, Patwari is in jail after his appeal is dismissed. He would serve his remaining sentence.

38. Abdul Haq was allowed bail on statutory, ground. His appeal being dismissed District Magistrate, Lahore shall direct that he be taken in custody and remit to jail to serve his remaining sentence.

39. Similarly, Mst. Sakina Bibi who was allowed bail should be taken in custody and sent to jail to serve her remaining sentence.

40. Criminal Revision filed by Mst. Shamim is dismissed as sufficient long time has elapsed and further enhancement in sentence is not called for.

41. In all these appeals it is ordered that the District Magistrate shall make every effort to secure the custody of the appellants those who are on bail details of which have been given and shall be sent to jail to serve their remaining sentence. N.H.Q./S‑433/L Appeal dismissed.