1968 P Cr (PLP)

Criminal Appeals Nos. 527 and 528 filed by Sohna appellant are directed against two separate orders of his conviction under section 417, P. P. C. recorded by the Special Judge, Jhang, on 30th June 1964, awarding him a sentence of a fine of Rs. 300 in each case or three months R. I. in default of payment thereof.

2. The brief facts giving rise to the cases are that Mukhtar Ahmad Piracha, Naib Tehsildar (P. W. 1) sanctioned three mutations of gift purporting to have been made by Mst. Pahnan widow, and Mst. Fateh and Mst. Bakhan and Mst. Sahban daughters of Salabat in favour of Rustam the brother of the latter and son of the former. it appears that Salabat held land in three different villages namely, Shadipur, Tibbi Lalaira and Maru Qilla. Mutation No. 268 related to the gift of land situate in village Shadipur and was sanctioned by the Naib‑Tehsildar on 25th July 1961, whereas mutations Nos. 269 and 276 relating to villages Tibbi Lalaira and Maru Qilla respectively were sanctioned by him one day earlier on 24th July 1961. On 26th July 1961, one Muhammad Shah of a neighbouring village Thatha Shah Jamal who appeared as P. W. 5, informed the Naib Tehsildar that two fictitious ladies had been produced before him at the time of the sanctioning of mutation in place of Mst. Pahnan and Mst. Fateh, and as such a fraud had been committed on him. The Naib Tehsildar showing exceptional promptitude in the matter immediately moved for the review of the three mutations and himself started an enquiry. It was revealed to him during his enquiry that Mst. Alan daughter of Mohabta resident of village Tibbi Lalaira had been produced to represent Mst. Pahnan while Mst. Sahban wife of Amir of the same village had been produced to personate Mst. Fateh. Subsequently, report Exh. P. K. was drawn up by Sh. Imam Din S.

1. Police Station Bharana on 29th May 1962, which led to two different challans against the appel lant and his co‑accused. In the meantime, however, the appellant was suspended from the post of Lambardari on 11th August 1961, and during a departmental enquiry instituted by the Tehsildar, Chiniot, made statement Exh. P. L. before him on 29th November 1961, in which the allegations were totally denied. The Col lector's sanction for his prosecution was obtained in both the cases and in one it is Exh. P. O. while in the other it is Exh. P. N.

3. At the trial the same set of witnesses appeared against the accused‑persons including the appellant in both the cases. The appellant pleaded not guilty to the charge. However, when examined under section 342, Cr. P. C. he gave a detailed explana tion of his false implication and stated that he had submitted several applications to the Deputy Commissioner pleading his innocence. He also alleged that his signatures had been obtained by the Naib Tehsildar on 26th July 1961, under duress when he was also given a beating by the Naib Tehsildar. He, however, led no evidence in defence. His co‑accused Rustom, however. produced one witness in defence namely, Mst. Fateh his sister who tried to shift the entire responsibility on Muhammad Ashraf Patwari who was stated to be related to them.

4. The prosecution evidence in both the cases rested mainly on the testimony of the same set of witnesses who appeared in same serial order in both the cases and whose statements were completely identical. Mukhtar Ahmed Piracha, the principal witness deposed that the appellant had appeared before him in his capacity as Lambardar identifying all the donors and it was on his identification that the three mutations had been sanctioned by him. He further deposed that mutations Exh. P. A. and Exh. P. B. in appeal No. 528 and mutation Exh. P. A. in Appeal No. 527 were signed by the appellant in his presence at the relevant time. Jalal Din Chowkidar of village Shadipur deposed about the death entry of Mst. Pahnan in Exh. P. C. in Appeal No. 528 Haji Rehmat Ullah (P. W. 4) and Muhammad Shah (P. W. 5) did not fully support the prosecution and were allowed to be cross‑examined by the Public Prosecutor. Similarly, the state ment of Ghulam Akbar Shah (P. W. 6) was not of much avail to the prosecution. Consequently, all the co‑accused of the appel lant were acquitted. His case was, however, found by the learned Special Judge to be distinguishable from those of the rest in both the cases and he was convicted mainly on the basis of the statement of the Naib Tehsildar coupled with his admitted signatures on the three mutations in his capacity as a Lambardar. It was found for a fact that being the village Lambardar, the appellant had a positive knowledge of the death of Mst. Pahnan which took place seventeen days prior to the entry of the mutations, having himself signed the relevant death entry in his capacity as a Lambardar. Consequently, his conviction in both the cases was recorded under section 417, P. P. C., as stated earlier.

5. The learned counsel for the appellant has raised the following contentions before me :‑ (i) That even if full reliance is placed on the entire evidence on the record, no offence would be made out against the appel lant under section 417, P. P. C., inasmuch as the essential ingredients of the offence of cheating as defined under section 415; P. P. C. are not established. It is argued that there was no person cheated as the only persons namely, the donors to whom some damage or harm could have been caused were arraigned as co‑accused of the appellant. (ii) That the date below the Patwari's entries Exh. P. A/1 in mutation Exh. P. A. and Exh. P. B/I in mutation Exh. P. B. relating to Appeal No. 528 had been definitely tampered with. This coupled with the fact that the signatures of the appellant on all the three mutations appear to be in the same ink as used by the Naib Tehsildar himself at the time of his orders of review, would clearly indicate that the appellant was not at fault and that his signatures were subsequently obtained by the Naib Tehsildar under duress. It is further argued that in the peculiar circum stances of the case in which at least one of the Patwaris was stated to be a relative of the so‑called donors and the donee, it would be inconceivable that the appellant had been instrumental in getting a false mutation entered through the Patwari and then allowing it to be sanctioned by false identification of fictitious persons.

6. As stated at the outset, the most peculiar and interesting feature of the two cases against the appellant is that even the three daughters of Salabat the so‑called donors and the sisters of his son Rustam the so‑called donee had never made any grievance of the mutations having been sanctioned alleging any damage or harm to them. It was further argued that assuming that it was the Naib Tehsildar who was the person deceived in the case, there was no question of any damage or harm done to him. Reliance was placed in this regard on A I R 1941 Lah.

460. In this authority in a similar situation where misrepresentations had been made to sanction a false mutation in respect of a bogus transaction of sale of landed property, it was held by their Lordships that the Naib‑Tehsildar was not a person deceived and as such conviction under section 419 or 420, P. P. C. was not sustainable.

7. The question could also be viewed from yet another aspect. Keeping in view the tampering with the dates of the mutations and the normal procedure laid down or adopted in regard to the sanction of mutations commencing with an entry by the Patwari and culminating in the attestation by the Revenue Officer on the identification of the parties usually by a Lambardar it is inconceivable that the two Patwaris had not played any part in the case. In fact, the role played by the Patwari to such cases is more important than that of the Lambardar. Proceeding on that assumption, one cannot avoid an impression that the principal offenders in the cases had some how managed to escape and bad gone scot free. Having carefully considered the signatures of the appellant on the three mutations, I am inclined to agree with the learned counsel for the appellant that in all probability, the Naib Tehsildar had obtained his signatures subsequently on the 26th of July 1951, as alleged by the appellant. It is in evidence that the Deputy Commissioner had to encamp at Sheikan Rest House on that day close to village Shadipur where the Naib Tehsildar was also supposed to be present. The true facts having been revealed to him he might have considered it safer in order to save his own skin to obtain the signatures of the Lambardar which clearly are in the same ink as used by the Naib Tehsildar making an, order seeking permission for the review of the mutations on 26th July 1961. In this view of the matter, even if it is assumed that he was at fault it does not appear to be proper to make him alone the scapegoat when the principal offenders namely, the Patwaris have already been acquitted. Shama v. State (P L D 1966 Dacca 269) would be an authority in point. Once it is conceded that the Naib Tehsildar had in order to shift the responsibility or to save his own skin, subsequently obtained the signatures of the appellant, this would render his testimony completely devoid of all sanctity so as to be made the basis of a conviction.

8. It could perhaps be argued that the role played by the appellant could still fall within the mischief of some other section of the Pakistan Penal Code, but since the ingredients of an offence, if any, were not precisely put to the appellant who has already undergone the agony of a trial and suspense 'besides his suspension from the post of Lambardari, I am not inclined to consider that aspect of the matter at such a late stage.

9. In consequence, I allow the appeals, set aside his convictions and sentences and direct that the fine of Rs. 300 if already paid by the appellant may be refunded to him. Appeals allowed.