P L D 1957 Lahore 207 (PLP)

MUHAMMAD SHARIF, J.‑

Amanat Ali son of Muhammad Din, caste Arain, aged about 20 years, resident of Mozang, Lahore, Muhammad Azim son of Muhammad Din, caste Arain, aged about 23 years, also a resident of Mozang, Lahore, and Muhammad Sharif, were tried under sections 420, 419 and 109 P. P. C. by Mr. Muhammad' Jaleel, Magis trate 1st Class, Lahore, who convicted the first on two counts under section 419/109, P. P. C. and the second also on two counts under section 419, P. P. C., respectively, and sentenced the former to two years' rigorous imprisonment on each count, and the latter to nine months' rigorous imprisonment on each count. The sentences on the two counts in each case ‑were directed to run concurrently. Muhammad Sharif, the third accused in the case, was acquit ted. On appeal the learned Sessions judge acquitted the two convicts on the first count under sections 419 and 419/109, P. P. C. respectively, but maintained their convictions under the second count under those sections and reduced their sentences from two years' rigorous imprisonment to one year's rigorous imprisonment in the case of Amanat Ali and from nine months' rigorous imprisonment to six months' rigorous imprisonment in the case of Muhammad Azim. They have now submitted two separate revision petitions (Nos. 890 and 891 of 1956) to this Court against their convictions and sentences. In brief, the case for the prosecution is this Muhammad Azim is a matriculate of the Punjab University, having passed that examination in 1952 under Roll No. 14565, while Amanat Ali intended to appear in that examination in the year 1953. Feeling that he would not be able to pass the said examination, Amanat Ali approached Muhammad Azim and asked him to personate the former in that examination, to which the latter agreed. As Amanat Ali was not attending any school he had to appear as a private candidate and had for that purpose to send his two photographs along with his admission form, duly attested by a Magistrate of the 1st Class, to the University. As one of these photos remains with the Superintendent of the Examination and the other is affixed at the table of the candidate in order to facilitate his identity, it was decided by the two accused persons that the photos to be sent along with the admission form should also be those of Muhammad Azim accused, who had agreed to appear in the examination for Amanat Ali accused. Consequently. Muhammad Azim accused, along with two copies of his photograph, Exhs. P, 1 and P. 2, and the admission form Exh. P. B., appeared in the Court of Mr. Abdul Hayee, Magistrate 1st Class, Lahore, on the 13th of November, 1952 before whom he was identified as Amanat Ali accused by Muhammad Sharif accused who has since been acquitted in the case. The admission form and the two photos were then submitted to the Punjab University, from where the "hall ticket" was issued to Amanat Ali accused and which had been received by Muhammad Azim accused before entering the examination hall of Mozang High School, Lahore. The matriculation examination started in April 1953 and continued up till 7th of May, 1953, on which date Muhammad Azim accused was suspected of personating Amanat Ali and interrogated on that behalf by Sh. Maqbul Hussain (P. W. 5), before whom Muhammad Azim accused became nervous and stated that he could be identified by Mr. Gulzar Hussain, Headmaster, Mozang High School, Lahore. He then left the hall after depositing the answer book with the examiner on the pretext that he would bring his father, but did not return: Mr. Maqbul Hussain, Superintendent, after having waited for Muhammad Azim accused for some time, took the two photos‑one, which he had in his possession, and, the other, which had been affixed at the desk where Muhammad Azim accused had sat doing the papers‑to the Headmaster, Mozang High School, for identification of Muhammad Azim accused. The Headmaster, however, showed his ignorance of the person whom those photographs represented. On this Mr. Maqbul Hussain drafted the report Exh. P. A. and sent it, along with the two photos, to the Punjab University authorities who, after holding an enquiry into the matter, disqualified Amanat Ali accused and also entrusted the case to the police. The petitioners when examined in Court under section 342 of the Code of Criminal Procedure pleaded not guilty and examined some witnesses in their defence. The defence of Amanat Ali accused was that he had neither filled in the Form Exh. P. B., nor he had asked Muhammad Azim accused to appear for him in the metric examination held in 1953. According to him he had never intended to appear in the said examination at all. In the end he stated that particulars of one Amanat Ali as entered in the admission form did not tally with his description as given by him in Court and consequently he must be some person other than himself. The main plea of Muhammad Azim accused was that he was employed as a Clerk in the Ice Factory of Muhammad Sharif (D. W. 2) in 1953 and had throughout remained in attendance at the said factory during the days when the matriculation examination for that year was being held in Lahore. As to the merits of the case, I have no doubt in my mind that it was none else than Muhammad Azim accused who had appeared for Amanat Ali accused during the Matriculation Examination held in April and May, 1953, and that the photographs Exhs. P. 1 and P. 2 are his. Had the photographs been of some person other than Muhammad Azim, Muhammad Azim could not possibly have been allowed to sit in the examination hall for such a long time without being detected earlier. On perusal of the evidence of Maqbul Hussain (P. W. 5) and Muhammad Yasin (P. W. 3), I am satisfied that their statements are true and the statement of Mr. Abdul, Hayee Khan, Magistrate 1st Class (P. W. 4) is not correct and had obviously been made under some misapprehension. I have myself seen the accused persons, who had been specially sent for from jail in order to enable me to determine whether the evidence of P, Ws. 3 and 5 was to be preferred to that of Mr. Abdul Hayee Khan, and after having seen them in Court I have come to the conclusion that the photographs Exhs. P. 1 and P. 2 are definitely those of Muhammad Azim accused and bear no resemblance whatsoever to Amanat Ali accused. It is further clear that Muhammad Azim accused, who had already passed the matriculation examination in the year 1952, would not have sat again for the same examination in 1953, and if he sat again, he did so not on his own behalf but on behalf of someone else. This brings us to the case against Amanat Ali accused. On his behalf, it has been argued that as his description as given in the admission form Exh. P. B., is not in accord with the description which he gave of himself in Court, when examined under section 342, Criminal P. C., the charge against him had not been proved. With this contention I am wholly unable to agree. The name, the parentage and the caste of Amanat Ali accused as stated by him in Court tally with the particulars described in the admission form Exh. P. B., and I attach no importance to a minor discrepancy between the residence of the accused person as given in the form Exh. P. B., and the one given in Court by the accused himself. I have no doubt that had any other person corresponding to the description as given in the admission form Exh. P. B., been in existence, Amanat Ali accused could not have failed to produce him in his defence. Moreover the defence witnesses have also not stated anything in Court on the point of his identity, and it is clear from the record that the police had no motive to substitute the accused for another Amanat Ali had such a person been in existence in Mozang. As Muhammad Azim accused had no motive of his own to personate Amanat Ali accused, it is obvious that he did so at the request of the latter. For these reasons I am also satisfied that Amanat Ali accused has been properly convicted of abetting the offence committed by, his co‑accused Muhammad Azim and the evidence produced by them in their defence is quite worthless and has been properly rejected by the Courts below. It is contended that even if the facts alleged against the accused persons are found to have been established against them, the case does not fall within the purview of section 415, P. P. C., and consequently the charge under section 419, P. P. C., against Muhammad Azim accused and the one under section 419 read with section 109, P. P. C., against Amanat Ali accused, cannot be sustained. It is necessary, therefore, to examine the legal aspect of the case in some detail and see if the case falls within the ambit of section 415, P. P. C. Now the charge of which Muhammad Azim accused has been convicted, is as follows :‑ "That you on 7th of May 1953, and even before that date, secured the hall ticket from the Punjab University for the matriculation examination held in that year in the Mozang High Court School, Lahore, dishonestly and fraudulently and appeared for Amanat Ali accused in the said examination and answered the question paper on his behalf". It is unnecessary to reproduce the first charge against Muhammad Azim accused as he had already been acquitted on that count and as Amanat Ali accused has only been convicted of abetting the offence, the charge against him too need not be reproduced. It will be noticed that the charge of which the accused persons have been convicted relates only to the cheating of the University and not to that of the Magistrate. Now, the provisions of section 415, P. P. C., are that: "Whoever, by deceiving any person, fraudulently or dishonestly indices the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived 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, is said to `cheat'." In order, therefore, to convict the accused persons under the second part of the section it must be established (1) that deception was practised on a certain person; (2) that by that deception the person deceived had been induced to do or omit to do something which he would not have done, or omitted to do, had he not been so deceived ; and (3) that such deception had caused or was likely to cause to the person deceived damage or harm in body, mind, reputation or property ; while under the first part of that section, it should be proved (1) that the deception was practised on a certain person, and (2) that by that deception the person so deceived had been induced to deliver any property to any person. It has been argued by the learned counsel for the accused persons that the present case is covered by the authority Muhammad Bakhsh and others v. The Crown (I L R 22 Lah. 718), and that the learned Sessions judge was not right in not applying the same to the facts of the case in so far as they related to cheating of the University by the accused persons, when he had relied on that authority for acquitting them for cheating the Magistrate. He contended that on principle there was no distinction between the two cases and if the Magistrate could not suffer in body, mind or reputation by attesting the photos and the admission form; nor could the University suffer by issuing the hall ticket and the examina tion paper to Muhammad Azim accused, because his description tallied with the photos which were duly attested by Mr. Abdul Hayee Khan, Magistrate 1st Class, to be those of Amanat Ali. Having regard to the language of the charge as framed, this argument is, in my opinion, without force and the distinction made by the learned Sessions judge in applying the Lahore case to the first charge and not to the second charge, appears to be justified in the circumstances of the case. In Muhammad Bakhsh v. Crown the charges as framed against the three petitioners related only to their having misrepresented certain facts to the Patwari as also to the Naib Tehsildar and no property had been delivered to anyone of the (three) petitioners either by the former, who had entered the mutation, or by the latter, who dealt with it, as a result of those misrepresentations. The question, which fell for determination in the circumstances could not possibly have, therefore, covered the case where a person deceived is induced to deliver any property as a result of some deception practised on him by an accused person. As the property involved in the mutation belonged to a third party to whom no misrepresentation had been made by the petitioners, the only question to be decided in the case was, whether the Naib Tehsildar and the Patwari had suffered any damage or harm in body, mind or reputation as a result of the mis representations made to them by the petitioners and it was held that they had not so suffered. It was for this reason that the learned Sessions judge, following the Lahore case, acquitted Muhammad Azim and Amanat Ali of the first charge, while upheld their convictions under the second charge, because, whereas the Magistrate had not delivered any 'property' either to the two accused or to any other person as a result of deceit practised on him by them, the University had as a result of the deceit practised on them by the two accused delivered the hall "ticket" as also the "examination" paper to Muhammad Azim accused. Although in maintaining the conviction of the petitioners on the second count, the learned Sessions judge relied on Aswini Kumar Gupta v. Emperor (A I R 1936 Cal. 403), and not on Muhammad Bakhsh v. The Crown, he need not have, in my opinion, sought refuge under the former authority, because the Lahore authority was not opposed to the view which he took in the case. The aspect of the case which is now before me, could not, in the circum stances of the case as stated in I L R 22 Lah. 718, have been present to the mind of the learned judges who decided that case nor were the authorities, (1) 12 Mad. 151, (2) 28 Mad. 90 and (3) 15 All. 210, brought to their notice while deciding the case Muhammad Bakhsh v. The Crown, possibly, because those authorities were not found appropriate to the facts of that case. It appears that the learned judges in the Lahore case merely confined their arguments to the language of the charges as framed against the petitioners in that case and did not consider it necessary to examine the scope of section 415, P. P. C., in all its implications. In my opinion, the "hall ticket' as also the "examination paper" fall within the definition of the word "property" as used in section 415, and, therefore, when Muhammad Azim accused took that ticket as also the question paper by deceit, he had committed an offence under section 415, P. P. C., both under the first part of that pro vision as also under the last part of it. An article to be property need not possess a marked value, and if it has some special value for the person concerned, it is property even though its value cannot be measured in money. Now, if the hall ticket had been stolen from Amanat Ali or the examina tion paper from the Superintendent of Examinations, no one, I think, would suggest that the thief could not be legally convicted, under section 379, P. P. C., of the theft of those articles. After a careful analysis of the provisions of section 415, P. P. C., and after going through a large number of authorities, decided by the various High Courts in India, I have come to the conclusion that the scope of the case Muhammad Bakhsh and other v. The Crown, must be confined to the facts of that case and the principles stated therein cannot be extended to cover the case under review. For these reasons, I uphold the convictions of the two accused persons. The only other question which now remains to be determined in the case is that of sentence, and after giving my anxious consideration to that aspect of the matter, I am of opinion that while the sentence awarded to Muhammad Azim accused is not severe, the one passed against Amanat Ali is rather excessive, and calls for some reduction. Consequently I reduce his sentence from one year's rigorous imprisonment to six months' rigorous imprisonment. With this modification the two revision petitions are dismissed. K.B.A./A.H. Petition dismissed.