P L D 1966 (W (PLP)

(ii) Under section 467, P. P. C.‑three years R. I. Both the sentences were to run consecutively. (2) Khushi Muhammad (i) Under section 420/109, P. P. C.‑two years' R. I. (ii) Under section 467/109, P. P. C.‑three years' R. I. Both the sentences were to run consecutively.

2. Briefly stated the facts of the case are that on the 14th of November 1961, both the appellants went to Muhammad Munir, Patwari, and stated before him that Mst. Khurshid Bibi wife of Muhammad Shafi, appellant, being dead, her inheritance mutation may be entered in the name of Muhammad Shafi. On having entered the mutation No. 1411 with the Patwari, Muhammad Shafi took the register of mutations and after some time returned the same to the Patwari expressing that the thumb- impression of Fateh Ali, Lambardar, on the mutation Exh. P. E. (No. 1411) was obtained by him. On the 27th of November 1961, Muhammad Shafi was identified by Khushi Muhammad before the Revenue Officer and the mutation was attested in favour of Muhammad Shafi at village Dulmanwali. The allegation against the appellants is that Mst. Khurshid Bibi was neither the wife of Muhammad Shafi nor she was dead and, therefore, the inheritance mutation was entered by them and got it attested with a view to have wrongful gain to Muhammad Shafi and to cause Wrongful loss to Mst. Khurshid Bibi P. W.

3. At the very outset a legal objection is raised by the learned counsel that the case against the appellants, even if assumed to be proved, their conviction is bad in law. Reliance was placed on the case of Muhammad Bakhsh etc. v. Emperor (A I R 1941 Lah. 460) wherein "A" went to Patwari and told him that "B" had sold him some land. He produced "M" who represented himself to be the alleged vendor, "B". The Patwari made an entry to this effect in the mutations register. The mutation was placed before the Naib‑Tehsildar and the same representation was made before him. Held that the case did not fall within the purview of section 415 and that "A" and "M" could not be convicted under section 419, P. P. C. They also could not be convicted under section 420, as the statement of "M" before the Naib‑Tehsildar could not be recorded as valuable security. The learned Judges referring to the case of Sunder Singh v. Emperor (25 P R 1904 (C R)) by D. B. of the Punjab Chief Courts, observed: "To justify a conviction for the offence of cheating, it is essential that the person made to deliver property, etc., or to do or to omit to do anything which causes or is likely to cause him damage in his body, mind or reputation or property, and which he otherwise would not have done, should be the person who has been deceived. The offence is not committed if a third party on whom any deception has been practiced sustains pecuniary loss in consequence of the accused's act." The learned Judges of the above‑stated authority relying on Rattan Singh v. Emperor (14 P R 1880 (C R)) A I R 1934 Lah. 833 and A I R 1938 Lah. 828, observed that the definition of cheating requires modification in order to cover cases where one person is deceived and another person suffers, or is likely to suffer, damage or harm in body, mind, reputation or property, The learned Judges further observed that it has been revealed in a number of cases that serious decep tion had been practiced on Government officials as a result of which certain other persons have suffered a great deal of harm in reputation or property. As the definition of cheating at present stands, such cases are not covered by this section and the punishment prescribed in sections 419 and 420, P. I'. C. cannot be awarded to persons who practice deception on Government servants which results in damage and harm to their property. The persons who practice such deception may be convicted under section 182, but the punishment prescribed for that offence is not sufficiently deterent, and it is desirable that such convicts should be liable to be heavily punished under section 420, P. P. C. which prescribes a maximum sentence of seven years rigorous imprison ment. I am in respectful disagreement with that authority. In the case of Muhammad Rashid v. The State (P L D 1960 S C 169) a contrary view was taken by the Full Bench "Section 27, P. P. C. lays down that when the property is in the possession of a person's wife, clerk, or servant on account of that person, it is in that person's possession within the meaning of the Code. Therefore, any Government property, in the possession of a Government servant should be deemed to be in the possession of the Government and if a criminal, by cheating Government servant, induces either him or another Government officer in consequence, to deliver to him certain property belonging to Government, the act of the criminal is governed by section 415, P. P. C." Explanation to the above quoted section runs: "A person employed temporarily or on a particular occasion in the capacity of a clerk or servant, is clerk or servant within the meanings of this section." The Patwari and the A. C. O. who attested the mutation are Government servants or more properly called public servants and any deception practiced on them comes under the purview of the above dictum laid down in the Supreme Court authority. A revenue officer is a public servant under the definition of section 27, P. P. C. read with section 21, P. P. C. Therefore, for the acts or omission of such public servant in his capacity as such causing damage or harm to another person, the application of section 415 is attracted. An owner of property has right in rem against every one who is subject to the law giving the right. It, therefore, follows that the official acting under the Land Revenue Act, acts not in his individual capacity but as an agent of the Government which guarantees protection to the rights of the subject.

4. The modus opperendi of the accused‑persons as stated by Munir Ahmad, Patwari, P. W. 13 was that Muhammad Shafi accompanied by Khushi Muhammad and Jalal Din went to him (the Patwari) at village Wachhoke and asked him to enter inheritance mutation on the death of Mst. Khurshid Bibi. He accordingly made entry to this effect in the register of mutations and called Fateh Ali, Lambardar, for attestation of this fact. At the suggestion of the accused‑persons, the register was handed over to them to get the thumb‑impression of Fateh Ali on the entry, as the latter being blind man could not come. The register was returned to the Patwari after having obtained the thumb‑impression of the Lambardar by them. The mutation was presented for attestation on the 27th of November 1961, before the A. C. O. Halqa, Khan Hayat Ahmad Khan, at village Dulmanwali where the three accused‑persons (one dead) were present but no Lambardar of village Wachhoke was present. The mutation in question was in this manner attested. Muhammad Munir, Patwari, P. W. stated that two or four days after the attestation of mutation, he was informed by Fateh Ali, Lambardar, that it did not bear his thumb‑impression and Mst. Khurshid Bibi was in fact not dead and that Khushi Muhammad accused thumb‑impressed the muta tion in his place (Fateh Ali). The Patwari brought this fact to the notice of the attesting officer (A. C. O. Hayat Ahmad Khan) and on his instructions the mutation No. 1428 was entered on the 9th of December and attested on the 26th of December 1961. These events developed in such a quick succession are note‑worthy.

5. It is to be mentioned here that Muhammad Shafi appellant, instituted a suit for conjugal rights on the 7th of March 1961, against Khurshid Bibi which was dismissed on the 15th of November 1963. Mr. Nur Hussain, Advocate (P. W. 18) was the counsel of the appellant in that case and Fateh Ali, Lambardar (P. W. 1) appeared as a witness for Muhammad Shafi and deposed in support of the alleged marriage of the appellant with Mst. Khurshid Bibi. It is argued by the learned counsel that under these circumstances it is not acceptable to the common sense that Muhammad Shafi may have admitted to express Khurshid Bibi as dead. One cannot read the complexity of human mind and it cannot be said with certainty to hold this view or the reverse of it. Fateh Ali, Lambardar, is equally related to Muhammad Shafi and Mst. Khurshid Bibi who went as far as he appeared as a witness for Muhammad Shafi but in the matter under considera tion he was not taken into confidence by Muhammad Shafi, is a fact which cannot be ignored. This witness stated that on the 27th of November 1961, he was present at village Dilmanwali before the A. C. O. when the mutations of village W achhoke were attested, but the appellants were not present. The learned trial Court has observed that the witness was blind. The presence of this witness was denied by Hayat Ahmad Khan, Qanungo, (P. W. 22) who attested the mutation. He rather stated that the thumb‑impression of Fateh Ali, Lambardar, having been present on the mutation, his presence was taken for granted and the identification of the parties by Fateh Ali, Lambardar, was noted down in his absence. This does not lead us any where. A responsible officer transferred the land on the basis of thumb- impression of a person and at the same time refuted the clear assertion of the same person who alleged his presence. It thus becomes a matter of perplexity to pin down the source whence the events started. Under section 37 of the Evidence Act, the Court has to form an opinion as to the existence of any fact of public nature. The procedure laid down for the attestation of mutations is the rule and departure from it is an exception. Ordinarily a revenue officer is not supposed to conduct himself in a manner as in the present case. Therefore, I do not hold the view that the mutations were attested in the absence of Fateh Ali, Lambardar. The statement of the Revenue Officer on this point does not inspire confidence. He stands contradicted by his own cross examination wherein be admitted to have sanctioned mutations Exh. D. A. to D. O. of village Wachhoke on the identification of Fateh Ali, Lambardar, but he denied the attestation of mutation No. 1411 Exh. D. E. the controvertial one, on the identification of Fateh Ali, Lambardar. He did not note down Khushi Muhammad as an identifier of the parties to the mutation.

6. Reverting to the statement of Muhammad Munir, Patwari (P. W. 11), who is the author of the matter from beginning to the end of it, requires a thorough search. The inheritence mutation was entered by him whose statement has not been supported by any piece of evidence. The only inference that Muhammad Shafi may have been benefited by this mutation and therefore may have made representation of Mst. Khurshid Bibi's death, there is no other circumstance from which such an inference could be drawn. An inference, however strong, cannot be substituted for a fact proved beyond reasonable doubt. Similarly the statement of this witness, that Khushi Muhammad thumb‑impressed the mutation in place of Fateh Ali, Lambardar, does not proceed beyond a mere surmise. This is not known as to where the thumb impression was affixed by Khushi Muhammad and in whose presence. This puzzle left by the prosecution unsolved still maintains its mysterious character. The original mutation (Exh. P. E.) produced by Muhammad Haroon (P. W. 14) allegedly bore the thumb‑impression of Khushi Muhammad, was not proved according to law.

7. On facts I am not satisfied that the guilt of both the appellants has been proved beyond any reasonable doubt and their conviction on the mere statement of Muhammad Munir, Patwari, cannot be maintained. The result is that I accept the appeal, set aside the conviction and sentence of the appellants and acquit them. K. B. A. Appeal accepted.