P L D 1962 Supreme Court 397 (PLP)

B. Z. KAIKAUS, J.‑--Rana Muhammad Afzal Khan appellant was tried by the Additional Sessions Judge, Multan, along with two others Muhammad Sharif alias Sharif and Sattar Muhammad alias Sattar of offences under sections 181, 182/109, 419, 420 and 419/109, P. P. C. Sharif and Sattar Muhammad were acquitted. The appellant was acquitted in respect of the charge under section 182, P. P. C. on the ground that there was no complaint by the officer concerned. He was convicted under sections 420 and 419, P. P. C. in respect of the document, Exh. P. W. 5/B and was sentenced to one year's rigorous imprisonment under each section. He was further convicted under section 420/511 and section 419/511 in respect of the document, Exh. P. W. 5/D and sentenced to nine months imprisonment on either charge, all sentences were ordered to run concurrently. His appeal to the High Court failed. The facts that should be regarded as established for deciding the questions of law that arise in this appeal are the following. Sattar Muhammad acquitted accused was at the relevant time a teacher in a school at Gujranwala. Sharif acquitted accused is his son who had passed the F. Sc. Examination and who wanted to secure admission to the Nishtar Medical College, Multan. In the Nishtar Medical College there were some seats which were open to competition on All‑Pakistan basis and there were some seats which had been reserved for the D. G. Khan District. Sharif failed to secure a seat out of those that were open to competition and the appellant then made an attempt to obtain for him a seat out of those reserved for the D. G. Khan District by representing that Sharif was resident of D. G. Khan City, For this purpose the appellant contacted Tehsildar Abbas Ali (P. W. 4) on the 12th of October 1956, representing to him that the appellant was one Aftab Ahmad, P. C. a. and asked Tehsildar Abbas Ali to endorse a certificate on the application of Sharif that he was a. resident of D. G. Khan. The Tehsildar told the appellant that ho would first have to get a certificate from some Lambardar or a Municipal Commissioner. The appellant then went to Nawabzada Ijaz All (P.W.6), a Municipal Commissioner D. G. Khan, and asked him to grant a certificate as to Shaif being a resident of D. G. Khan. He told Nawabzada Ijaz till that he was a Magistrate at Lahore and was a brother of Rana Aftab Ahmad, P.C. S., who had some time before been a Magistrate at D. G. Khan. He at the same time told Nawabzada Ijaz Ali that Sharif was In fact a resident of Block No. 14, D. G. Khan City. Nawabzada Ijaz Ali made an endorsement, P. W. 5/B, on the application of Sharif attesting the fact that he was a resident of D. G. Khan City. The appellant then took the application to the Tehsildar and he too on the strength of the attestation by Nawabzada Ijaz Ali made the endorsement P. W. 5/C on the application certifying the residence of Sharif. The appellant then were to the office of the Provincial Transport at D. G. Khan and representing himself to be Rana Aftab Ahmad Magistrate asked the Inspector of Provincial Transport to inquire from the Deputy Commissioner, D. G. Khan, on the phone if he could see Rana Aftab Ahmad. The Deputy Commissioner expressed his willingness to see Rana Ahab Ahmad in the evening and so fn the evening the appellant went to him. The Deputy Commissioner made the recommendation, Exh. P. W. 5,/D or, cite application on the strength of the endorsements that already existed. Looking into the application, however, the Deputy Commissioner discovered that the residence of the father seas Mentioned as Gujranwala. The Deputy Commissioner inquired from the appellant how it was that the father or the Troy was residing at Gujranwala. The appellant replied the he was employed as a teacher although he originally belonged to D. G. Khan. The Deputy Commissioner who was all the time under the impression that he was talking to Rana Aftab Ahmad then questioned the appellant as to the amount criminal work in Lahore and the number of Magistrates who were functioning there. The appellant was unable to give any satisfactory reply to the questions. Then some further questions convinced the Deputy Commissioner that the appellant was an impostor and on being pressed the appellant confessed that he was not Rana Aftab Ahmad but was Rana Muhammad Afzal. The Deputy Commis sioner then rang up the Deputy Superintendent of Police and related to him the whole story. In fact. he handed over to hint a complaint relating all the facts. The appellant was then arrested and after investigation was sent up for trial. The main question argued in the appeal is that the facts proved do not cstablisn a charge tinder section 419 or section 420 of the Pakistan Penal Code. It is urged that in the case of either of these two sections there has to be cheating and the definition of cheating is not applicable to the facts of this case. Cheating is defined in section 415, P. P. C. which runs:

"Whoever, by deceiving any person, fraudulently dishonestly induces me person so deceived to deliver any property to any poison, 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'. Explanation.‑A dishonest concealment of facts Is a deception within the meaning of this section." It is not denied that the appellant deceived Nawabzada Ijaz Ali, the Tehsildar, and the Deputy Commissioner, But it is contended that there has to be a delivery of property or a consent to retain property or the result of deception should be the doing of anything which causes or is likely to cause damage or harm to the person deceived in, body, mind, reputation or property, and in the present case neither of these alternatives exists. The Sessions Judge as well as the High Court were of the opinion that the certificate granted by Nawabzada Ijaz Ali or that granted by the Tehsildar was movable property and its delivery would satisfy the requirements of section 415, P. P. C. Words used in a statute are presumed to be used in their technical sense or, in the absence of a technical sense, in their, ordinary grammatical sense: The word 'property', as will appear from a reference to any Law Lexicon or any work on A Jurisprudence, involves even in its widest sense the ownership of a legal right. In Wharton's Law Lexicon the word 'property' is explained thus :‑‑ "the highest right a man can have to anything, being used fear that right which one has to lands or tenements, goods or chattels, which does not depend on another's courtesy," Perhaps it will be better instead of referring to a number of commentaries to reproduce from Salmond's Jurisprudence some paragraphs under the head "Meaning of the term property" where there is a full discussion of its different meanings. These paragraphs run ; "The substantive civil law is divisible into three great departments, namely the law of properly the lam of obligation and the law of status. The first deal with proprietary right, in rem, the second with proprietary rights in personam, and the third with personal or non‑proprietary rights, whether in rem or in personam. In this chapter we shall consider in outline the first of these branches, and we shall then proceed to deal in the same manner with the law of obligations. The law of status, on the other hand, is not of such a nature as to require or repay any further consideration from the point of view of general theory. The terns property, which we here use as meaning proprietary rights in tern, possesses a singular variety of different appli cations having different degrees of generality. These are the following : (1) All legal rights.‑In its widest sense, property includes all a person's legal rights, of whatever description. A man's property is all that is his in law. This usage, however, is obsolete at the present day, though it is common enough In the older books. Thus Blackstone speaks of the property (i.e. right) which a master has in the person of his servant, and father in the person of his child. 'The Inferior', he says 'bath no kind of property in the company, care or assistance of the superior, as the superior is held to have in those of the inferior'. So Hobbes says : Of things held in propriety, those that are dearest to a man are his own life and limbs ; and in the next degree, an most men, those that concern conjugal affection ; and after them riches and means of living'. In like manner Locke tells us that `every man has a property in his own person', and he speaks elsewhere of a man's right to preserve 'his property, that is, his life, liberty, and estate'. (2) Proprietary rights : (dominium and status).‑In a second and narrower sense, property includes not all a person's rights, but only his proprietary as opposed to his personal rights. The former constitute his estate or property, while the latter constitute his status or personal conditions. In this sense a man's land, chattels, shares, and the debts due to him are his property ; but not his life or liberty or reputation. In this sense we may oppose to Locke's statement, that a man has a property in his own person, the saying of Ulpian : Dominus membrorum suorum nemo videtur. This Is probably the most frequent application of the term at the present day, but in the case of a word having so many recognized varieties of usage it is Idle to attempt to single out any one of them as exclusively correct. (3) Proprietary rights in rem: (dominium and obligatio).

In a third application, which is that adopted it the chapter, the term includes not even al: proprietary rights, but only those which are both proprietary and in rem. The law of property is the law of proprietary rights in rem, the law of proprietary rights tar personam being distinguished from it as the law of obligations, According to this usage a freehold or leasehold estate In land, or a patent or copyright, is property ; but a debt or tile, benefit of a contract is not. (4) Corporeal property (dominium corporis and dominium juris).‑Finally, in the narrowest use of the term, it includes nothing more than corporeal property‑that is to say, the right of ownership in a material object, or that object itself. Thus property is defined by Ahrens as 'a material', object subject to the Immediate power of a person, and Bentham considers as metaphorical arid improper the extension of the term to include other rights than those which relate to material things." It will be observed that whatever the meaning which may be attached to it the word property necessarily connotes a legal right. Unless therefore there was any indication to the contrary and such indication there is none, we should assume the word `property' to be used in section 415, P. P. C., as necessarily Involving a legal right. In the present case It is not possible to urge that a certificate as to residence granted by any of the public servants concerned would have entitled Sharif as of right to get himself admitted into the Nishtar Medical College or to any other benefit or advantage, and legal right is defined in jurisprudence as an interest recognized and protected by a rule of right. It is any interest, respect for which is a duty, and disregard of which is a wrong. Unless and until the effect of the certificate was that in consequence somebody would be legally obliged to do something or to refrain from doing some thing it could not be said that the certificate carried with it any` legal right. It is not sufficient for being included within the term property that the thing concerned may be of some help to a person or that be may put some value on it. It is necessary that it should have a forcing consequence. Every report, every recommendation, every statement of fact made by a public servant which favours a person is of value to the person concerned. But it certainly is not property for that reason alone. The High Court as well as the Sessions Judge were of opinion that the certificate was property because it is a paper and paper was moveable property, It appears to have been overlooked that the paper itself had no value and the paper belonged to Sharif or to the appellant and not to the person who endorsed the certificate. Even if it had belonged to the person who endorsed the certificate its value was so small that its delivery would not be an offence in view of the provisions of section 95 of the Pakistan Penal Code according to which a harm which is so slight that "no person of ordinary sense and temper" would complain of it is to be ignored for determining whether an offence has been committed. So the paper itself was not liable to be taken into consideration at all and so far as the endorse ment on it is‑.earned that created no right and was not property. There is another reason whoa it was rot possible to regard the certificates granted in this case as property. They could not be of any help to Sharif. The rule according to which some seats were reserved for D. G. Khan District had been altered in September 1956, and according to the altered rule some seats were reserved only far the excluded areas of D. G. Khan, the result being that a resident of D. G. Khan City could receive no advantage from the fact of his being such resident. While the rule had been altered in September the present occurrence took place on the 12th of October 1956. It appears that the appellant's attempt as well as the certificates granted were based on a misapprehension about the rules. On behalf of the State it was urged that although the first part of section 415 was not applicable to the circumstances of this case the second part, that is, the one according to which an act is cheating if harm results to the person deceived in body, mind, reputation or property from what he is induced to do on account of the deception is applicable. It is contended that in the present case a harm did occur to the reputation of Nawabzada Ijaz Ali or the Tehsildar because it would be said that they were persons who were granting incorrect certificates. There are number of considerations that militate against the acceptance of the contention put forward by learned counsel for the State. In the first place, it cannot be said that if a person acts in consequence of being deceived the reputation suffers particularly from a single act. For the purpose of judging as to whether an act is likely to cause harm to reputation we have to assume a reasonable public. Just because some member of the public may unreasonably make an adverse inference it would not be correct to say that the act done 1n consequence of being deceived 10 was likely to cause harm in reputation. On the other hand, if we were to assume that every act of being befooled causes harm to reputation there will be cheating in every case in which a person has been deceived and has acted in consequence so that the ingredients of cheating apart from the fact of deception would become redundant. Another consideration is that the loss of reputation should not be a remote effect of the impugned act. A reference to decided cases will show that the mere fact of having acted wrongly and to the detriment of some person in consequence of the deception has never been regarded as an act which is likely to cause harm to reputation. In Legal Remembrancer v. Manmatha Bhusan Chatterjee and Legal Remembrances v. Hridoy Narain and others ((1924) I L R 51 Cal. 250), the facts were that the accused in conspiracy with some servants of the East Indian Railway Company had by fraudulent means secured more wagons for the use of a particular colliery than was sanctioned by the Coal Transportation Officer. The question was whether the act of the accused was cheating within section 415, P. P. C. No financial harm had been caused to the Eastern Railway Company because the wagons had been paid for. On behalf of the prosecution an argument was advanced that the Railway Company had suffered loss in reputation on account of the issue of more wagons than were allowed by the rules to a particular colliery. The learned Judges were of the opinion that while there could be some loss to reputation this was too remote to be made the basis of the application of section 415, P. P. C. Richardson, J. with whom Suhrawardy, J. agreed said "I will not say positively that the Railway Company suffered no damage to its reputation but in view of the authorities I am disposed to conclude that the damage here complained of is indirect and ulterior rather than the direct natural or probable consequence of the action which the Company was deceived into taking. The direct consequence of one colliery getting more than their fair share of wagons is that other collieries must suffer the disadvantage of getting less than their fair share. If it be said that a suit might have been brought against the Company for damages for undue preference, such a possibility under section 415 would come under the head of damage or likelihood of damage to property and not of damage to reputation". There is an unreported case Kashinath Mahadev Phalah (1910) Criminal Appeals for Revision No. 402 of 1909, decided on 24‑2‑10 quoted in Ratan Lal's Law Of Crimes at p. 1055 in which a person bad secured an employment in the post office by suppressing the fact that he bad previously been dismissed from Government service. A question arose as to whether harm had been caused fn body, mind, reputation or property to the person deceived and the learned Judges considered an argument as to whether the Postal Department stood discredited by the employment of a man of doubtful character. The learned Judges held the consequence to be too remote. This is what one of the learned Judges said :‑ "I find no difficulty in concluding that the petitioner's silence regarding his previous employment deceived and was meant to deceive the authorities of the Post Office, and thereby procured him an appointment that he would not otherwise have obtained. But I do not think that this amounts to an offence under section 415, Indian Penal Code. For neither the act of appointment, nor the omission to inquire into the petitioner's antecedents caused or was likely to cause, damage or harm 'to the body, mind, reputation, or property' of the person deceived. Such damage or harm must, I take it, be the proximate and natural result of the act or omission and we cannot include in it such vague and contingent injury as might arise from the discredit that might attach to the Department, from the employment of a man of doubtful character. It has not been suggested that the damage to be apprehended was that which might be caused by the petitioner's dishonesty and this too would be a consequence too remote for the purposes of the section. I therefore agree that the conviction should be quashed." In 34 Punjab Records 1918 p. 90 a Lambardar was offered certain recruits for presenting them to the Recruiting Officer. The Lambardar questioned the recruits as to whether they had already been rejected and he received an answer in the negative. In fact, the recruits had already been rejected and the Lambardar came to know of this when he presented the recruits to the Recruiting Officer. A question arose whether the recruits were guilty under section 420, P. P. C. It was held that there was no harm likely to be caused to the Lambardar in mind, body, reputation or property. It was urged before the learned Judges that there was a harm to the reputation of the Lambardar. The explanation of the Lambardar that he had been deceived had been accepted by his superior officers. While rejecting the contention that there was a loss to reputation, the learned Judges said ;‑ "We are quite unable to hold that damage to Muhammad Kasim's reputation was the necessary consequence of his offering rejected recruits. There is no reason to assume that there was any likelihood that his explanation would be rejected and we see as a matter of fact that it was accepted. Under the circumstances we are unable to hold that there was any reasonable likelihood of Muhammad Kasim's suffering any damage or harm whatsoever from the fact that he innocently presented rejected recruits to the Recruiting Officer." It will be observed that in the first two cases cited above the suggested loss to reputation had been regarded as too remote and in this Paso It had been held that if the explanation was accepted, and there was no reason why it should not be accepted if the Lambardar was innocent, there would be no loss to reputation. In Ghulam Mustafa v. The State (P L D 1960 Lah, 290), the surety and the attesting witnesses of a bail bond had given wrong descriptions of themselves in order to have the accused person released on bail. The learned Single Judge of the High Court of West Pakistan dealing with the argument as to reputation said: "I do not see how if later it was found that Ghulam Mustafa and Wahid Bakhsh had falsely personated, it could have 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 the case relied upon the facts were that a person personated another before the patwari and made a statement that he had sold some land. He was then produced before the Naib‑Tehsildar and made the same statement for the purpose that a mutation may be effected. A question arose whether he had been guilty under section 419 and section 419/511. It was held that the act of the Naib‑Tehsildar if he had in fact sanctioned a mutation could not have caused any harm to him in body, mind, reputation or property. As regards the argument as to reputation Bhide and Abdul Rashid, JJ., were of the opinion that the Naib‑Tehsildar bad acted strictly in accordance with the rules and therefore no loss could occur to his reputation. While this case is distinguishable on the ground that the Naib‑Tehsildar acted in strict accordance with the rules, it does assist in the interpretation of section 415 to this extent that if the person concerned acts as he ought to a loss of reputa tion cannot possibly occur and if he does not act as he ought to then the loss of reputation is directly referable to his own lapse and the possible loss in reputation is rather a remote result of the deception. At the same time, it is to be observed that the question as to whether loss of reputation is likely to occur is after all one which has to be decided on the facts of a particular case. In the present case, it was not the contention of the prosecution either before the Sessions Judge or before the High Court that loss in reputation had been caused or was likely to be caused. No evidence was led on the point and the appellant was not questioned with respect to it. It would not be proper therefore unless the matter was quite clear and no question of prejudice was involved to maintain the conviction in this Court on the ground of loss in reputation. Cases in which misrepresentations are made before public officers properly fall under section 182, P. P.C. In the present case the appellant had been sent up for trial under section 182, P. P. C. but the Sessions Judge refused to convict him under that section on the ground that there was no complaint by the officer concerned. We have found that the appellant is not liable to be convicted under section 420 or section 419 because the act attributed to him does not amount to cheating. We could however have altered the conviction to one under section 182 P. P. C. for the acts on which that conviction would be based are the same on which the charge under section 419 or section 420 has been based. One argument advanced at the hearing against our altering the conviction to section 182 was that there had been an acquittal and there had been no appeal by the State against the acquittal and therefore we should not make an order which the High Court could not have made because the High Court only have set aside the acquittal and order a retrial. This contention can be repelled for the reason that what is called acquittal is really not an acquittal but a mere refusal, ~ to take cognizance. An acquittal would mean an acquittal on facts which creates a bar for further trial under section 403, Cr. P. C. What the Additional Sessions Judge said in respect of section 182 is only this that in the absence of a complaint he was not prepared to take cognizance. The refusal to take cognizance is no bar for a further trial and does not operate as an acquittal of a charge. While we are unaffected by the argument put forward there is another reason why we would not alter the conviction to one under section 182, P. P. C. As we have already observed that it is a case where the trial Court has refused to take cognizance. We do not think we should convict the appellant of an offence of which the Court has refused to take cognizance. We may state here that we are not satisfied as to the correctness of the order passed by the Additional Sessions Judge relating to the offence under section 182, P. P. C. The order was passed on the assumption that there was no complaint against him of an offence under section 182, P. P. C. This we regard as a very technical view because the Deputy Commissioner had prepared a complaint and had handed it over to the Police in order that they may investigate the case and send up the appellant for trial. We do not think it should make any difference that instead of filing a regular complaint before the Magistrate the Deputy Commissioner had filed a complaint before the Police and had asked them to investigate the case and send up the accused for trial. However, in spite of this we are not prepared to alter the conviction to one under section 182 because the Additional Sessions Judge, though for a wrong reason, did actually refuse to take cognizance. When a trial Court refuses to take cognizance we can direct it to do so, but we do not think we should ourselves convict the accused. Under the circumstances, we could by setting aside the order of acquittal under section 182, P. P. C. send back the case for trial, but we do not feel it necessary to do so because the acquittal recorded by the Additional Sessions Judge is not a bar to further prosecution. It is open to the public servants concerned to file complaints on which proceedings can be taken de novo. This appeal is accepted and the convictions of the appellant tinder sections 419, 420, 419/511 and 420/511 are set aside. HAMOODUR RAHMAN, J.‑

Although I agree with the order proposed to be made by my learned brother Kaikaus, J., I regret my inability to subscribe to the view that the certificate of the kind granted in the present case can never be property in the sense in which the said word has been used in section 415 of the Penal Code. Whether an article is or is not `property' does not, in my view, depend upon its possessing a money or market value. An article may not possess a market value and still it may have a value for its owner. It may still be capable of being owned, possessed or transferred and, therefore, capable of creating proprietary or legal rights In its owner, possessor, holder or transferor. It is in this sense that the word 'property' used in section 415 has been interpreted in a number of decisions by the Indian High Courts, Thus in Queen Empress v. Appasami (I L R 12 Mad. 151) a ticket entitling its holder to enter an examination room was held to be a property within the meaning of the said section. Again, in Queen Empress v. Sashi Bhushan (I L R 15 All. 210) and in Local Government v. Ganga Ram (A I R 1922 Nag. 229) certificate to the effect that a person had passed an examination were treated as property within the meaning of the said section. Similarly in the case of In re: Packianathan (A I R 1920 Mad. 131) a health certificate was treated to be property within the meaning of section 415 and a person obtaining the same by false personation was held to be guilty of an offence under section 419 of the Penal Code. I venture to think that If a certificate of this nature bad been stolen from the person to whom it was granted, it would be difficult to suggest that the thief could not be legally convicted' under section 379 of the Indian Penal Code for a theft of such a certificate. But if a certificate was not movable property, the thief who dishonestly took it out of the possession of a person to whom it was granted, could not possibly be convicted of theft in respect thereof. I am, however, agreeing with the order proposed by my learned brother, as in the present case the evidence has established that the rule according to which seats were to be reserved for students of Dera Ghazi Khan district had actually been altered in September 1956, before the occurrence, with which the appellant was charged, took place on the 12th of October 1956. The alteration of the rule regarding reservation of seats for Dera Ghazi Khan is a distinguishing feature which rendered the certi ficate obtained by the appellant in this case of no use either to him or to any one else and thus rendered it of no value at all even to the appellant. A.H Convictions set aside.