P L D 1960 (W (PLP)

4. After going through the evidence on the record, I am of the opinion that even if the allegations of the prosecution are established beyond doubt against Ghulam Mustafa and Wahid Bakhsh, then also the petitioner and Wahid Bakhsh are entitled to an acquittal. The charge against both these accused was that they had cheated Khan Saadat Nawaz Khan, Magistrate 1st Class, by falsely representing that Ghulam Mustafa was the son of Ahmad Khan and that Wahid Bakhsh was Khuda Bakhsh Lambardar.

5. The question, which arises for determination, is whether Ghulam Mustafa petitioner and Wahid Bakhsh have committed an offence falling within the purview of section 419 of the Pakistan Penal Code. Section 419 reads as follows:‑-- "Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 6. "Cheating by personation" is defined in section 416 of the Pakistan Penal Code and reads as follows :‑ "A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is." Explanation.‑"The offence is committed whether the individual personated is a real or imaginary person."

7. It will be thus seen that mere false personation does not constitute an offence under section 419, Pakistan Penal Code, unless by such false personation the person cheats. "Definition of cheating" is given in section

415. This section requires ; (1) deception of any person, (2) (a) fraudulently or dishonestly inducing that person, (i) to deliver any property to any person ; or (ii) to consent that any person shall retain any property, or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit' if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

8. The learned Magistrate did not discuss at all as to how it was established that the petitioner and Wahid Bakhsh had cheated the Magistrate. The Additional Sessions Judge, how ever, while dealing with this aspect of the matter, observed as follows:‑-- "Now there is no doubt that the appellant (Ghulam Mustafa) deceived Khan Saadat Nawaz Khan, Magistrate, into the belief that the appellant was "Ghulam Mustafa son of Ahmad Khan" and he fraudulently induced the Magistrate so deceived to attest the bail bond which entailed the passing of an order as to the release of Ghazi Khan; and also that the order of release constitutes property."

9. The word "property" is not defined anywhere in the Penal Code. However, in section 22, Pakistan Penal Code, it is laid down that the words "movable property" are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth." There is authority for the view that whether an article is or is not "property" does not depend upon its price in money or market value and if it has some special value for the person concerned, it is "property" even though its value cannot be measured in money. I have grave doubts that the release order passed by the Duty Magistrate can be described as "property" within the meaning of section 415, Pakistan Penal Code. Besides, that release order has not been placed on the file and Khan Saadat Nawaz Khan has not said anything to the effect that he had issued any release order. Although there can be no doubt that such a release order must have been issued, but then if the petitioner was to be made liable on the basis of that release order that should have been proved and brought on the record. The charge, as framed by the Magistrate, does not specify at all that the accused had obtained "property" in the form of a release order. The petitioner and Wahid Bakhsh, therefore, could not be legally convicted under section 419, Pakistan Penal Code, on that basis.

10. The learned Sessions Judge, while dealing with the second part of the definition of "cheating" observed as follows :‑ "In this case, the appellant (Ghulam Mustafa) deceived Khan Saadat Nawaz Khan, Magistrate, into the belief that he was "Ghulam Mustafa son of Ahmad Khan" and intentionally induced the Magistrate to attest the bail bond Exh. P. A., which the appellant had executed as "Ghulam Mustafa son of Ahmad Khan" and which attestation the Magistrate would not have made if he had not been deceived into the belief that the appellant was "Ghulam Mustafa son of Ahmad Khan" and which attestation is likely to harm the Magistrate in his reputation as a responsible person, attesting bail bond only after a due inquiry."

11. Unfortunately, section 415 and illustrations appended to it do not throw any light as to what is meant by "causing damage or harm to that person in body, mind, reputation or property". The requirements of the section are that the person deceived must have acted under the influence of the deceit and the, act of the person deceived causes or is likely to cause damage or harm to that person in body, mind, reputation or property. No procedure is prescribed in the Criminal Procedure Code which a Magistrate is required to follow while attesting a bail bond. I have no doubt in my mind that if the parentage of Ghulam Mustafa had been correctly given in the bail bond Exh. P. A., the Magistrate would have unhesitatingly accepted the bail bond. There is nothing to show that because of the wrong parentage given in the bail bond, the Magistrate was induced to accept the bail bond presented by Ghulam Mustafa. I agree that if the Magistrate had known that Wahid Bakhsh was falsely personating as a Lambardar, then he may not have accepted the bail bond, but in the circumstances of the case the Magistrate could not have done anything more. On the back of the bail bond, the valuation of the property of the surety is given and it is signed by Ghulam Mustafa and thumb marked by Wahid Bakhsh. I do not see how if later it was found that Ghulam Mustafa and Wahid Bakhsh had falsely personated, it could have g caused any harm to the Magistrate in his reputation as a responsible person. I am fortified in this view by the decision of a Division Bench of the Lahore High Court reported as Muhammad Bakhsh and another v. Crown (I L R 22 Lah. 718). In that case, a mutation was entered by the Patwari at the instance of one Allah Wasaya that he had purchased four hundred kanals of land from Ilahi Bakhsh Sahol for Rs. 430 and the thumb‑impression of Shahru Khan Lambardar was obtained on the mutation. The mutation was then placed before Mirza Mahmood Beg, Naib Tahsildar, when he was on tour. Allah Wasaya, Muhammad Bakhsh and Shahru Khan appeared before the Naib‑Tahsildar. Muhammad Bakhsh represented himself to be Ilahi Bakhsh Sahol vendor and Allah Wasaya pointing to Muhammad Bakhsh stated that he had purchased the land from Ilahi Bakhsh Sahol. Shahru Khan Lambardar identified Muhammad Bakhsh as Ilahi Bakhsh Sahol. In the course of the inquiry, the Naib Tahsildar became suspicious and did not sanction the mutation. Shahru Khan then filed an application before the Naib‑Tahsildar mentioning all the above‑mentioned facts and alleging that he had himself been deceived. The Naib‑Tahsildar, after making further inquiries into the matter, reported the case to the police. Muhammad Bakhsh and Allah Wasaya were challaned and con victed under sections 419 and 420 of the Indian Penal Code. Allah Wasaya was sentenced to two years' rigorous imprisonment on each count while a sentence of one‑and‑a‑half years' rigorous imprisonment was awarded to Muhammad Bakhsh on each count. Their appeal having been dismissed by the Additional Sessions Judge, Multan, they filed a revision petition before the High Court. The petition for revision came up for hearing before Dalip Singh, J., who was of the opinion that an important question of law was involved in the case and he accordingly referred the case to a Division Bench consisting of Bhide and Abdul Rashid, JJ. While dealing with the question whether the deception practised on Mirza Mahmood Beg, Naib‑Tahsildar, caused or was likely to cause damage or harm in body, mind, reputation or property, Abdul Rashid, J., with whom Bhide, J. agreed, observed as follows :‑ "In my opinion, no harm in body, mind, reputation or property was caused or was likely to be caused to Mirza Mahmood Beg as a result of the deception practised on him. Before the Patwari, Muhammad Bakhsh had represented himself to be Ilahi Bakhsh, vendor. Shahru Khan, Lambardar, had identified Muhammad Bakhsh as Ilahi Bakhsh, vendor. Before the Naib‑Tahsildar, a similar procedure was followed and it was after Shahru Khan, Lambardar, had identified Muhammad Bakhsh as I1ahi Bakhsh, vendor, that the mutation was entered. In these circumstances, it must be held that the Naib‑Tahsildar was not likely to suffer in mind, body or reputation if it was subsequently discovered that Ilahi Bakhsh had not sold the land in dispute, but that he had been personated by Muhammad Bakhsh. I am of the opinion, therefore, that the present case does not fall within the purview of section 415, and that no conviction under section 419 can, therefore, be sustained against the petitioner." In this case all the relevant authorities on the point were taken into consideration and the learned Judge further remarked that "it appears to me that the definition of `cheating' in section 415 of the Indian Penal Code requires modification to 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. It has been revealed in a number of cases that serious deception has been practised 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 section 415, Indian Penal Code, and the punishment prescribed in sections 419 and 420 cannot be awarded to persons who practise deception on Government servants which results in damage and harm to third parties." I am in respectful agreement with the above observations.

12. It therefore, follows that the conviction of the petitioners Ghulam Mustafa and Wahid Bakhsh cannot be upheld. It is true that Wahid Bakhsh did not file any appeal against his conviction and sentence and has not filed any revision petition, but as the record is before me and I am of the considered opinion that an offence under section 419, Pakistan Penal Code, has not been established against any of the accused, I set aside his conviction and sentence and acquit him in the exercise of the revisional jurisdiction of this Court. The result is that the petitioner Ghulam Mustafa and Wahid Bakhsh are acquitted. They shall be set at liberty forthwith.

13. Before concluding, I would like to add that the petitioner and Wahid Bakhsh could have been convicted under section 205 of the Pakistan Penal Code, and in fact charges were framed against them under section 205 also, but in the absence' of any complaint by Khan Saadat Nawaz Khan, Magistrate, the Court could not have taken cognizance of an offence under section 205, Pakistan Penal Code. I might also add that although it was pointed out by the Lahore High Court in the above mentioned case as far ago as 1941 that the definition of `cheating' in section 415, Pakistan Penal Code, required modification in order to cover cases where deception is practised on Government servants, yet the authorities concerned have not cared to amend the law. It is to be regretted, that in the present state of the law, the offenders in such cases escape punishment, which they otherwise deserve. A copy of this judgment may be sent to the West Pakistan Government for taking such action in the matter as it may deem fit. A.H. Order accordingly.