2013 PLP 183 (MLD)

SYED ZAKIR HUSSAIN, J.

This matter pertains to the prayer of quashment of the proceedings pertaining to the charge sheet bearing Case No. 62 of 2007 based on the F.I.R. No. 17 of 2007 of Anti-Corruption Establishment, Karachi under sections 161, 167, 420 P.P.C. r/w section 5(2) of Prevention of Corruption Act, 1747, carrying the facts that the sub-attorney namely, Waseem Khan exercised the powers as sub-attorney (for and on behalf of the attorney Muhammad Yousuf-ur-Rehman of the principal Noorullah Khan, who had executed in his favour, the general power of attorney) and executed as many as 19 sub-lease deeds and presented them for registration before the sub-Registrar in capacity of the builder of the building constructed and disposed it of, portion wise, to the sub-lessees on his part respectively. The sub-Registrar namely, Khudadad Jakhrani of the relevant time, registered 17 sub-lease deeds and kept the remaining two as unregistered for want of payment of capital value tax (CVT). The said tax stood abolished by the government subsequently, and therefore, the sub-attorney pressed the registration of the said two sub-tease deeds too. By that time, the applicant Sarfaraz Ahmed stood posted as sub-Registrar in place of the previous one, who registered the said sub-lease deeds and the matter as to the registration thereof, also stood to be over. During the intervening period, the attorney Muhammad Yousuf-ur-Rehman reportedly, made a request to the previous sub-Registrar Khudadad Jakhrani not to register the remaining said sub-lease deeds, since he had decided to revoke the said sub-power of attorney, but the sub-Registrar did not pay any heed to such objection of the attorney, and performed his functions accordingly. The attorney approached the Anti-Corruption Department with the allegations of illegality, which according to him, stood committed in the matter in hand on the part of the officials referred to above, in connivance with others namely, Waseem Khan and Muhammad Iqbal against illicit consideration. The enquiry was conducted and the I.O. formed an opinion that no corruption had taken place in the matter and the case was not open to be prosecuted as such. Finally, the interim challan was submitted in the court of Anti-Corruption Judge, Karachi against four nominated persons referred to above, on the charges of corruption, and that of illegality in question. Final challan has not been submitted and similarly, no charge has been framed in the matter, yet an application under section 249-A Cr.P.C. moved on behalf of the co-accused Waseem Khan and Muhammad Iqbal, was heard and disposed of in their favour, with the result, they stood acquitted of the charge of the case on the ground that the case was not likely to land in conviction in the circumstances of the case. Surprisingly, the application of the applicant Sarfaraz Ahmed of similar nature, was dismissed although the facts and grounds, which had become basis of the acquittal of the co-accused Waseem Khan and Muhammad Iqbal were the same and or the case of the present applicant was quite identical to that of the aforesaid acquitted persons, and the rule of consistency was in favour of his acquittal, which has riot been put to practice rather two orders in question though carrying identical position in all respects including the facts and application of law, but stand conflicted in point of conclusion arrived at by the learned judge owing to application of two altogether different yardsticks on his part, to dispensation of justice, which according to the learned counsel, has resulted in frustration of justice since the proceedings to the knowledge process of law, while he had formed the opinion that no illegality took place in execution of the registered sub-lease deeds in question in his earlier order referred to above. The learned Additional Prosecutor General pointed out the legal position that a registered document of like nature cannot be adjudicated in point of its propriety by a criminal court of law and that until a competent civil court has adjudicated contrary to the execution of such documents, a prima facie presumption of fairness thereof, is attached therewith, in terms of sections 59 and 60 of the West Pakistan Registration Rules, 1929. The learned Additional Prosecutor General also pointed out another legal position that the Registrar/sub-Registrar is bound to register the documents and that he cannot refuse registration of the same after the same has been presented with the proper execution thereof, in terms of the rule 135 of the West Pakistan Registration Act, 1929. The learned trial judge in the case of the co-accused Waseem Khan and Muhammad Iqbal in their respective order under section 249-A Cr.P.C. has given favourable reasonings while in the case of the applicant, he has expressed contrary or conflicting views to what he has already stated in the matter of the said co-accused persons, which I am afraid are an outcome of mala fides or malice. On factual aspect, the learned counsel stated that the I.O. investigated the matter and suggested no prosecution. The challan, which is interim in nature, shows no witness as cited as P.W. in the matter except the said attorney, whose solitary statement, could hardly be sufficient for the purpose of coming to the conclusion that the matter involves commission of crime the applicant is charged with, particularly when he is an interested person, and that the power of attorney being irrevocable itself, is conclusive in all respects, and a sub-power of attorney executed thereunder, does naturally carry same irrevocability as a matter of effect thereof, and since the principal of the general power of attorney had no power to revoke the same, his attorney thus, would naturally carry no power to revoke the sub-power of attorney after its execution in favour of his sub-attorney, and hence, in other words, no question did legally arise for revocation of the said sub-power of attorney of the said sub-attorney, on the part of the said attorney at all. Even otherwise, the registration of the said deeds after their presentation by their executants, to the sub-Registrar concerned, was legally an unquestionable matter in all respects, and the propriety of the said execution and registration etc. were not open to be called in question, merely on the basis of any subsequent revocation of the sub-power of attorney of sub-attorney the co-accused Waseem Khan, which (i.e. revocation referred to above), if ever so existed, carried no adverse effect thereagainst. Reliance is placed on 1999 SCMR 2718. The relevant headnotes whereof are as follows:

S. 12

Suit for specific performance of agreement

Defendant, an attorney and co-sharer of other defendant had entered into agreement of sale of house with plaintiff/vendee on behalf of himself and other defendants on basis of power of attorney executed in his favour by other defendants

Suit for specific performance of agreement filed by plaintiff/vendee was resisted by defendants alleging that power of attorney executed by them in favour of attorney/vendor having been revoked, agreement of sale entered into by attorney with plaintiff-vendee could not have been executed

Validity

Power of attorney on basis of which defendant/vendor had entered into agreement of sale with plaintiff having been revoked subsequent to execution of agreement of sale, defendant/attorney had full authority under power of attorney executed in his favour, to enter sale agreement on behalf of other defendants/vendors

Deed of revocation executed subsequently by other defendants, would save transaction already made by attorney because other defendants being donors of power to their attorney were bound by act of donee/attorney which he had performed in accordance with terms of power given to him by power of attorney.

S. 12

Specific performance of agreement

Discretionary power of Court to grant decree

Scope

Grant of decree for specific performance, no doubt was discretionary with Civil Court, but said discretion could not be exercised arbitrarily but had to be exercised judiciously on sound judicial principles

Vendor who was attorney of other vendors on basis of power of attorney in his favour, having entered into agreement of sale of house with vendee/plaintiff, no reason existed as to why said discretion should not have been exercised in favour of plaintiff/vendee

Suit for specific performance of agreement, filed by plaintiff/vendee, was rightly decreed in his favour, in circumstances. Another case, which may serve the matter as case-law supporting the applicant is PLD 2007 Lahore 689 the relevant headnotes whereof are as under:

Ss. 51, 52(c), 58, 59, 60, 61 & 68(2)

Constitution of Pakistan (1973), Art. 199

Constitutional petition

Registered general power-of-attorney

Correction of description (boundaries) of land given in power-of-attorney, application for

Sub-Registrar finding boundaries not correctly given in power-of-attorney recorded thereon a note restraining attorney from alienating property till same was got corrected

Validity

Registrar/Sub-Registrar under Registration Act, 1908 did not have any power to take impugned action or pass impugned order

Registering Officer would be bound to register a document, if execution thereof was admitted by its executants

Registering Officer while registering or refusing to register document would not conduct an inquiry into title, possession or correctness of contents thereof

Registering Officer could rectify any error while copying documents in the Books to be kept under S. 51 of Registration Act, 1908, but could not amend document itself and that too after its registration

High Court set aside impugned order/endorsement on such power of Attorney while declaring same to be illegal void and without lawful authority

Principles.

Ss. 58, 59 & 60

Registration of document

Registering Officer, powers of

Scope

While registering or refusing to register a document, Registering Officer would not conduct an inquiry into title, possession or even correctness of contents of such documents

Principles. Upon the presentation of a document for registration, upon the appearance of the person or persons executing the documents and on his satisfaction that they are persons they represent themselves to be and if they admit the execution of the document, the Registering Officer is bound to register a document in accordance with sections 58 to 61 of the Registration Act, 1908. On the other hand, if a person denies the execution or appears to be minor, an, idiot or a lunatic or the execution is denied by the legal representatives of the deceased executants, the Registering Officer shall refuse to register the document. The conditions for exercise of jurisdiction by the Registering Officer while registering a document or refusing to register a document are clearly mentioned in the statute. This does not at all involve an inquiry into title, possession or even correctness of the contents of a document sought to be registered. Mr. Ghulam Shabbir Memon, Assistant Director, Anti-Corruption, Karachi, has appeared in the matter in place of the I.O. (who did not appear despite knowledge) and stated that the interim challan in question, was submitted without sanction from the ACC-1 and hence, the same carried no legal weight and sanctity in terms of section 11(2) of the Sindh Enquiry and Anti-Corruption Rules, 1993 that runs:-- "No criminal case shall be registered against accused public servant without prior approval of the "Competent Authority": Provided that such prior approval shall not be necessary for registration of case against public servant likely to be caught red-handed as a result of raid/trap, arranged by Establishment under the supervision of a Magistrate and in case of his non-availability the Gazetted Officer of the Establishment. Needless to mention that the proviso under the said provision of law, has no nexus with the facts of the instant case. He is also of the view that in terms of the report of the I.O., the case deserved no sanction for prosecution. The perusal of the record, goes to show that the complaint of the attorney Yousuf-ur-Rehman carried no substance justifying or warranting prosecution and trial for any offence generally, and for the offence applied in the matter in particular. The applicant and other accused are sub-Registrar and public servants and their acts brought in question through the criminal proceedings in hand, are part of their official functions and unless such official acts are tainted with malice or corrupt practice carrying grounds constituting offence of like nature or otherwise, the same would carry no criminal accountability and no prosecution and trial would stand warranted and justified thereby in the eye of law. Thus, there remains no dispute or reservations from either side to the effect that the case does carry no crime and or there is no-question of criminal accountability, yet it has been purposefully (for the reasons well known to the concerned people, which cannot be spelled out to be fair but tainted with malice, in the circumstances), put to the prosecution and trial, which has already collapsed partly at the hands of the learned judge, who as already state above, passed order dated 11-8-2009 under section 249-A Cr.P.C. holding thereby that there is no probability of the co-accused Waseem Khan and Muhammad Iqbal (the actual beneficiary of the registered sub-lease deeds in question) being convicted for any offence in the matter and therefore, they were thereby acquitted from the charge of the case in all respects, but simultaneously, the learned judge fell in serious error rather illegality, which too, seems to have resulted from unfair and unseen reasons, when he passed a contrary and conflicting order dated 11-8-2009, (to its earlier order under section 249-A, Cr.P.C. already pin pointed above), which is impugned in this application and whereby the request for acquittal on similar grounds in identical circumstances, stood refused for no lawful reasons. Consequently, the application therefore, deserves an order as prayed for. The same is allowed. Accordingly, the applicant Sarfaraz Ahmed is acquitted from the charge of the case. Simultaneously, the co-accused Khudadad Jakhrani also stands acquitted of the charge of the case. They are on bail, their bail bond stand cancelled and sureties discharged. MWA/S-47/K Application allowed.