1980 P Cr (PLP)

4. Learned counsel appearing for respondents Nos. 4 to 7 has submit ted that the. Beshi allowed to the petitioners' predecessor‑in‑interest, the claimants, could not have been granted and had rightly been ordered to be withdrawn under the impugned order. As regards the cancellation of the allotment of the respondents Nos. 4 to 7's predecessor‑in‑interest, namely, Khushi Muhammad vide the impugned order of the learned Settlement Commissioner dated 30th April, 1978, the learned counsel for the respon dents submits that at this stage he cannot say anything in this behalf.

5. From the statement of facts made above and the contentions of the learned counsel for the parties, it would appear that for the sera & thur area allotted to the claimants i. e. the predecessor in interest of the peti tioners they were allowed 40% Beshi in accordance with Correction Slip dated 29th April, 1950 mentioned above and the area was accordingly allot ted in lieu thereof on 6th August, 1962. The order was never challenged in an appeal or revision and consequently, was final. In collateral proceedings, in absence of the persons likely to be affected, the same could not have been rendered ineffective by the Deputy Secretary (Rural) to the Chief Settlement Commissioner vide his memo dated 22nd July, 1965 quoted above. Besides that the memo. does not correctly comprehend the legal provision when it says that the Beshi can only be given at the time of allotment meaning thereby in the first instance. If for any reason the full entitlement including the one for Beshi is not satisfied at one stage, there is no bar that the balance or the deficiency may not be made up subsequently. In respect of direction that the action should be taken "after observing necessary formalities of law" as if that meant nothing to the Deputy Secretary (Rural), the direction toy was not even complied, when the allot ment at Khata No. 18 was just cancelled by recording an endorsement on that on 5th May, 1966. This is no way of exercising public powers. The appel late and the revisional authorities felt bound by the memo of the Deputy Secretary (Rural) to direct that the Beshi allowed should be withdrawn. As seen above, that was neither permissible nor could be done and the appellate as well as the revisional authorities fell in error in not applying their own independent mind and in abdicating judicial function in view of the memo from the Headquarters office.

6. In view of what has been stated above, it would be quite clear that the Beshi allowed and in lieu thereof allotment made on 6th August, 1962 was correct and final and could not have been interfered with. The orders to the contrary culminating in the. order of the learned Settlement Com missioner dated 29th March 1971 are declared to have been passed without lawful authority and of no legal effect. This disposes of Writ Petition No. 548/R of 1971. 1n the circumstances, the parties shall, however, bear their own costs. As regards Writ Petition No. 795/R/72, the title of the predecessor in interest of the petitioners, namely, Khushi Mohammad son of Jiwa in the allotment has since been found to be without any legal basis vide the order of the Settlement Commissioner/ Chief Settlement Commissioner dated 30th April, 1978. Earlier orders challenged in this petition call for no interference on behalf of the petitioners, though it may be said that‑ those orders have already been quashed as against the successors in interest of the earliest claimant allottees of the land in question. This petition has no force and is otherwise infructuous, This is dismissed as such. The parties shall bear their own costs, Land was allotted in the name of Khushi Muhammad son of Jiwa on Claim No. 6992 at Khata No. 20 of Chak No. 34/1113, Tehsil & District Sheikhupura on 9th May, 1966. It was sold in favour of Rajab Ali son of Ata Mohammad, Bashir Ahmad son of Farzand Ali, Ghulam Mohyuddin son of Ahmad Ali and Khushi Muhammad son of Akbar Din through mutations sanctioned on 19th April, 1969. The respondent No. 1, whose predecessor‑in‑interest had earlier been allotted some of the land, filed an application before the Anti‑Corruption Department on 2nd March, 1971 saving that the allotment in the name of Khushi Muhammad had been obtained by fraud and forgery in the year 1966 as Khushi Muhammad had died in U.S.A. in the year 1956. The sale on his behalf in the year 1969 in favour of the above vendees was obviously false. After investigation the Anti‑Corruption Police, Lahore registered a case under sections 468/109, 419/420, P.P.C. read with section 5(2) of Act 11 of 1947 against the petitioner and five others. The allegation against the petitioner being that he as a Lambardar identified a fictitious person as Khushi Muhammad. The case was put up before the learned Special Judge, Anti‑Corruption No. 1, Lahore, before whom a preliminary objection was taken that the allega tions constituted offences under sections 27 and 28 of the Displaced Persons (Land Settlement) Act, 1958. The learned Special Judge could not pro ceed with the matter in the absence of a complaint by an officer under the said Act in view of section 29 of the .Act. The learned Special Judge observed that the allegations constituted various offences under the Penal Code and even if those constituted offences under sections 27 and 28 of the Displaced Persons (Land Settlement) Act, 1958, the matter could still be proceeded by him. This is vide order dated 30th May, 1974. The petitioner has filed this petition for quashmant of the proceedings against him.

2. Learned counsel for the petitioner has urged that all the facts allegedly constituting crimes under the above‑referred sections of the Pakistan Penal Code in the present case fell within the mischief of sections 27 and 28 of the Displaced Persons (Land Settlement) Act, 1958 and under section 29 of the said Act "No Court can take cognizance of any of such offences without a complaint in writing made by an officer of the Settlement authorities, which complaint has not been filed.

3. Learned counsel for the respondent No. 1 has submitted that the allegations against the petitioner and others could be tried as ordinary crimes by the learned Special Judge. Anti‑Corruption as some of the accused persons were public servant.

4. The whole case of the prosecution against the petitioner and others is that they obtained allotment in the name of Khushi Muhammad in 1966 when he was already dead for 10 years in U.S.A. Further that the sale on his behalf in the year 1969 in favour of some four persons, was obviously fraudulent, The petitioner is alleged to have identified Khushi Muhammad as a person executing a power of attorney for obtaining allotment. The relevant provisions of law are as follows :‑‑ Displaced Persons (Land Settlement) Act, 1958. Section

27. Penalty for misrepresentation etc.‑Any person‑ (a) who in an application for allotment of land under section 14 or in any proceeding under this Act furnishes or abets the furnishing of any information which he knows to be false, or does not believe to be true, or fraudulently conceals or misrepresents facts, or abets such concealment or misrepresentation, or (b) who makes or abets the making of application to more than one Settlement Authority for Settlement or for allotment of land in lieu of the same property, or (c) who does not comply with the provisions of section 3, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Section

28. Penalty for unauthorised alteration in Records etc. Any person who, with intent to evade the provisions of this Act, conceals, destroys, mutilates, defaces or alters any book, ‑ record or other document relating to land, or knowingly allows such conceal ment, destruction, mutilation, defacement or alteration, to be caused, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

5. The allegations if read in conjunction with the aforesaid provision of law that‑ "Any person ‑(a) who in an application for allotment of land under section 14 or in any proceeding under this Act furnishes or abets the furnishing of any information which he knows to be false, or does not believe to be true, or fraudulently conceals or misrepresents facts, or abets such concealment or misrepresentation" is liable to be punished and that‑ "any person who with intent to evade the provisions of this Act, conceals, destroys, mutilates, defaces or alters any book, record or other document relating to land, or knowingly allows such concealment, destruction, mutilation, defacement or alteration to be caused, shall be punishable." would make it quite clear that the allegations amount to offences under the aforesaid two provisions of law, i.e. sections 27 and 28 of the Displaced Persons (Land Settlement) Act, 1958. There is no doubt . that if the allegations be correct, the petitioner would be liable under the aforesaid two provisions. However, no prosecution can take place without a complaint in writing of an authorised officer as provided for under section 29 of the Displaced Persons (Land Settlement) , Act, 1958 which lays down that "No Court shall take cognizance of any offence punishable under this Act save upon a complaint in writing made by an officer appointed under this Act". Since admittedly no such complaint had been made by an officer appointed tinder the aforesaid Act, the cognizance of the case against the petitioner could not be taken by any Court, including that of the learned Special Judge, Anti‑Corruption, Lahore, who is trying the matter. Moreover, the allotment in respect of which the allegations were made has already been cancelled by the Settlement Commissioner/Chief Settlement Commissioner vide order dated 30th April, 1978. In all the circumstances of the case, no useful purpose can be served by continuing the proceedings, which are otherwise without legal basis. The proceedings pending against the petitioner in the Court of learned Special Judge, Anti‑Corruption, Lahore are, therefore, quashed. Order accordingly.