1969L3076 (PLP)

Sayeed Hai v. The State P L D 1967 Kar. 768 and Abdul Barkat v. The State P L D 1959 Dacca 617 ref S. M. Hamid Ali for Appellant. Masud Ahmad Khan for A.‑G. for the State. Nizam Din (deceased) father of Muhammad Din, had left some landed property in village Nur Mahal, Tehsil Philaur, district Jullunder, Muhammad Din put in claim forms marked Exa. P. L. and Exh. P. T. in the year 1949, in respect of that land. On the basis of the Fard Haqiat Exit. P. A. 108 kanals and 6 marlas of land were shown to have been left by Nizam Din in village Nur Mahal, and Muhammad Din and his two minor brothers Taj Din and i/lulchtar Ahmact were allotted 160 kanals and four marlas of land in Chak No. 359/GB, District Lyallpur. It was discovered that Muhammad Din and his brothers had got land in excess of their entitlement and that their father had left only eight kanals and six marlas of land in the East Punjab. A case was registered against Muhammad Din and his two brothers, Taj Din and Mukhtar Ahmad and against Multammad Aslarn, Patwari inn the Central Record Room, who were alleged to have tampered with the Fard Haqiat Exh. P. A. to increase the entitlement front eight kanals and six marlas to 108 kanals and six marla. The Anti‑Corruption Department challaned the four accused. The learned Special Judge (Provincial) acquitted Taj Din and Mukhtar Ahmad under his orders dated the 17th of July 1964, and under his final orders dated the 5th of April 1965, he convicted Muhammad Din appellant under section 420, P. P. C. and section 168/109, P. P. C. and sentenced him to undergo rigorous imprisonment for one year on each count and also to a fine of Rs. 2,000 under section 420, P. P. C. The sentences of imprisonment were ordered to run concurrently and in default of payment of fine he was ordered to undergo rigorous imprison ment for a further period of one year. Muhammad Aslam Patwari was acquitted as no case was made out against him. Muhammad Din has come in appeal against his convictions ant sentences.

2. According to the prosecution, Nizam Din, father of tire deceased, had left some landed property in the East Punjab. The appellant put in two claim forms on the 25th of February 1949, which are marked Exh. P. E. (for himself) and Exh. P. T. (in respect of his minor brothers). The same were forwarded to the Central Record Office for verification. Naqal Fard Haqait Exh. P. K. was issued showing the area of the land left by Nizam Din to be 8 kanals and 14 murlas. Another Fard Haqiat Exh. P. A. was also issued and this showed the land left by Nizam Din to be 99 kanals and 18 marlas Chahi and 7 kanals and 14 marlas Barani. On the basis of the Fard Haqidt Exh. P. A., the appellant and his brothers were allotted 160 kanals and 4 marlas of land in Chak No. 359/G. B. On a complaint received from Muhammad Din P. W. the mistake was detected and the area allotted cancelled.

3. Muhammad Aslam (acquitted accused) had denied the prosecution allegations regarding the Fard Haqiat Exh. P. A. having been tampered with by him. The appellant admitted to have filed the claim forms Exh. P. E. and Exh. P. T. as alleged and to have been allotted in Cliak No. 359/G. B. 160 kanals and 5 marlas of land along with his brothers. He further stated that there was no fraudulent or dishonest intention, that he was of tender years and did not know how much land had been left by his father in the East Punjab and that his father had, while on death bed, told him that he was the owner of only 20/22 Ghumaons of land in village Nur Mahal in East Punjab. No evidence was produced in defence.

4. Learned counsel for the appellant has raised two points before me. His first contention is that the conviction of the appellant was not valid oil facts and particularly because Muhammad Aslam Patwari has been acquitted of the offence of having tempered with Fard Haqiat Exh. P. A. Counsel's second contention was that the prosecution of the appellant was barred by section 16 of the Pakistan (Administration of Evacuee Property) Ordinance XX of 1956, as the offence was covered by section 30 of the said Ordinance and the sanction of the Custodian had not been obtained for the prosecution. 'The learned Special Judge had dealt with this matter and I agree with him that the prosecution of the appellant in this case was not in respect of the facts covered by section 30 of the aforementioned Ordinance and that the prosecution under sections 420 and 458, P. P. C. was not barred by section 36 of the 1956‑Ordinance.

5. As regards the second point, I am of opinion that there is force in the contention raised against the conviction of the appellant. Section 468, P. P. C. deals with the commission of forgery with the intention that the document forged shall be used for the purpose of cheating. The appellant has been convicted for the offence embodied in section 468/109, P. P. C. Learned counsel for the appellant has urged that Muhammad Aslam Patwari has been acquitted of the principal offence under section 463, P. P. C. and there is nothing to indicate as to who l)ad committed the principal offence under section 458, P. P. C. and there is also nothing to indicate that the appellant had, in any way, abetted the said offence. Learned counsel for the State has frankly conceded that the conviction of the appellant under section 468/109, P. P. C. cannot be supported.

6. In my opinion, the conviction of the appellant under action 420, P. P. C, is also not supported by the evidence in the case. Section 420, P. P. C. purports to punish a man who cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed and which is capably of being converted into a valuable security." The learned Special Judge has been influenced by the fact that Fard Haqiat Exh. P. A. has been tampered with and that the appellant and his brothers had derived benefit under the tampered document Exh. P. A. In my opinion, these two facts atone do not attract tile provisions of section 420, P. P. C., which requires that the accused should have cheated some one and should have dishonestly induced the person cheated to deliver any property to any person etc. It is not clear from the case as to how had been cheated by the appellant and in what manner. If the entries in the Fard Haqiat Exh. P. A. were suspicious to the naked eye, as appears from the judgment of the learned Special Judge, the persons who were responsible for excessive allotment on the basis of this document might themselves have been a party t o the fraud and the question of the appellant having. cheated or deceived them into any false belief will not arise. Learned counsel for the appellant has relied on Sayeed Hai v. The State (P L D 1967 Kar. 768) and Abdul Barkat v. The State (P L D 1959 Dacca 617). In my view, the conviction of the appellant under section 420, P. P. C. or section 468/109, P. P. C. is not warranted by the evidence produced in the case. I, there fore, allow this appeal, set aside the convictions recorded against the appellant under the aforementioned sections and the sentences imposed upon. him and order him to be acquitted. He is on bail. His bail bond shall stand discharged. The fine, if paid, shall be refunded to him. Appeal allowed.