2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned miscellaneous application, applicant Dilbar Hussain Khokhar has impugned order dated 09.09.2015, passed by learned Special Judge Anti-Corruption (Provincial) Sukkur Division in Cr. Case No.124 of 2007, Re: State v. Fazul Muhammad and others, whereby application under section 249-A, Cr.P.C. filed by applicant, was dismissed.

2. Relevant facts spelt out from instant application are that Inspector Malik Rahim Bux, Circle Officer Anti-Corruption Establishment, Naushahro Feroze lodged FIR on application moved by Habib-ur-Rehman stating that he is owner of land vide Survey No.316, Deh Bharand to the extent of 50% share with equal share of his brothers, such entry dated 23.04.2003 was made in record of rights, and possession of the land is also with them. One Ali Khan Bhutto in collusion with his brother Muhammad Pannah, Kotar in league with area Tapedar, committed forgery and fraudulently changed the record in the name of Ali Khan vide entry No.322, dated 14.05.2001, in Form VII-B; they have also managed papers in respect of S.No.316, Deh Bharand, along with S.No.1103, dated 5.11.1986, have been shown as a sale. On the basis of registered entries, Mukhtiarkar Abdul Shakoor Qureshi issued Passbook No.414481 and kept entry No.322, dated 14.05.2001, in Form VII-B, Deh Bharand, which is mortgaged by Ali Khan Bhutto, who got sanctioned a loan worth Rs.2,30,000/-from ADBP Naushahro Feroze, and during enquiry such responsibility has been fixed upon accused Tapedar Ghulam Shabbir Solangi, Fazal Muhammad Panhwar, MCO of Zarai Taraqiati Bank, Naushahro Feroze and Ali Khan Bhutto. After conducting investigation, case was recommended to the Committee for approval of Challan against accused persons, but subsequently, another Investigating Officer on the basis of statement of an unconcerned Mukhtiarkar namely Syed Paryal Shah, implicated the applicant falsely in present crime.

4. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in instant case; that the commencement of trial of instant case is based on the statement of Mukhtiarkar namely Syed Paryal shah, who has friendly terms with remaining accused belonging to same District and he also served there for about 20 years; that there is bar under section 195, Cr.P.C. and such case cannot be lodged against applicant; that it is sole jurisdiction of Civil Court to determine first the liability and then pass appropriate orders; that at the most it was the matter of departmental enquiry but the Anti-Corruption police malafidely involved the applicant in such matter; that present applicant never remained under sub-ordination of Mukhtiarkar Syed Paryal Shah, hence he was completely unaware to identify the signatures of applicant; that signatures of applicant were not sent to the handwriting expert by Investigating Officer, which shows mala fide and ulterior motive on his part; that subsequently, owner of the land and accused entered into compromise and accused got the land released after payment of loan amount to the Bank and revenue record has been rectified to its original position; that dispute is pertaining to private Qabooli land and not to the Government land, but Anti-Corruption Police has illegally involved the applicant though name of applicant does not transpire in the FIR but malafidely in second investigation report, name of accused has been included due to enmity of applicant with Hidayatullah Rajper, the then D.C.O. Naushahro Feroze as applicant had filed Constitution Petition before the High Court against D.C.O. concerned and Mukhtiarkar Syed Paryal Shah close friend of said Hidayatullah Rajper while first Investigating Officer has exonerated the applicant. Learned counsel for applicant relied on the case of Muhammad Moosa v. State (2005 CLC 487).

5. Learned counsel for respondent No.1 contended that the respondent had moved an application for rectification of the entries to the revenue authorities and after compliance of required formalities, name of respondent No.1 has already corrected and said land has been entered in his name; learned counsel extended no objection if application under section 249-A, Cr.P.C. moved by applicant, is allowed.

6. Learned APG supported the arguments advanced by learned counsel for the applicant and contended that impugned order has been passed without considering the material properly.

7. Heard learned counsel for the parties and examined the material available on record minutely.

8. Perusal of record emanates that applicant has been implicated in Cr. Case No.124 of 2007 lodged vide FIR No.9 of 2005 of Police Station ACE, Naushahro Feroze, under sections 409, 420, 467, 468, 471, 34, P.P.C. read with section 5(2) Act-II of 1947. Indeed, respondent No.1 Habibur Rehman and his brothers are owners of land bearing S.No.316 (3-17) acres situated in Deh Bharand and such entry dated 23.04.2013, was maintained in revenue record. Accused Ali Khan Bhutto in collusion with Muhammad Pannah Kotar, Ghulam Shabeer Tapedar and Dilbar Hussain Khokhar Mukhtiarkar got entered the above survey number of applicant with other survey numbers vide entry No.321, dated 06.05.2001, showing to be purchased vide registered sale deed No.11034, dated 05.11.1986 and prepared a false Passbook No.414481 in the name of accused Ali Khan Bhutto by committing fraud and forgery, which was signed by Tapedar Ghulam Shabeer Solangi and verified by Mukhtiarkar Abdul Shakoor Qureshi. On the strength of said Passbook accused obtained loan worth Rs.2,30,000/- illegally in connivance with MCO Fazal Muhammad Panhwar of ADBP and such mortgage entry No.322 of form-VII dated 14.05.2001, was made in revenue record of rights.

9. It is significant to mention that name of applicant is not mentioned in the averments of FIR and even he was exonerated by the first Investigating Officer, however, second Investigating Officer on the basis of statement of Mukhtiarkar Syed Paryal Shah, included the name of applicant in the array of accused. Admittedly, signatures of the applicant were not sent to the handwriting expert for comparison nor there is any IOTA of evidence available with the prosecution that applicant ever remained posted under supervision of Mukhtiarkar Syed Paryal Shah, thus his allegations for identification of signatures of applicant could not be believed. It is worthwhile to mention that applicant was not beneficiary of said forged entry, issuance of Passbook as well as sanction of bank loan nor such allegations were leveled by respondent No.1/complainant in his complaint. Moreover, accused Ali Khan Bhutto and owner of the land entered into a private compromise and application moved by respondent No.1 for correction of entry was also allowed by the competent revenue authorities and subject land again has been maintained in the name of respondent No.1 vide entry dated 28.02.2011. Indeed, the entire case of prosecution is based on statement of Mukhtiarkar Syed Paryal Shah which from the face of it, has no legal authenticity, as first Investigating Officer had exonerated the applicant, while second Investigating Officer has not collected any direct evidence to implicate applicant in the commission of alleged offence. In absence of any direct evidence against applicant, it was mandatory for Investigating Officer to send the specimen signatures of applicant to the hand-writing expert for comparison with the signatures available in revenue record and in view of such findings the fate of allegations, if any, against the applicant for commission of alleged forgery should have been decided but such exercise had not been done. In the case of fraudulent entries, comparison of signatures of accused are essential and mere on oral allegations against any officer could not be held responsible for the commission of alleged offence of forgery and fraud in revenue record.

10. Indeed, the land in question is private property and it is not a State land. It is well settled that the authority of Anti-Corruption police is restricted to investigate into the entries kept in respect of Government lands only and dispute pertaining to the private lands are exclusive subject to the jurisdiction of the Revenue Authorities or the Civil Courts to determine the authenticity of disputed entries in relevant revenue record. Anti-Corruption Police is neither conferred with any power nor authority to investigate the dispute arisen regarding to the entries pertaining to private lands nor Prevention of Corruption Act, 1947 permits the Anti-Corruption Police to entertain any complaint with regards to the title dispute between the private parties. In case of Khadim Hussain v. The State (2001 PCr.LJ 1006), it was held that the allegations against the appellant were that he while discharging the function of Director of Immigrants, Advisory Service, Mirpur, a non-governmental Organization, in lieu of the service rendered by him to the Immigrants of Azad Kashmir in United Kingdom received an amount of Rs.87,360 through drafts and charges from the Immigrants on the pretest that the funds were not available with the Advisory Service and deposited the said amount in his personal account at Mirpur. Trial Court without determining the status of accused as public servant and the nature of transaction and offence, had assumed jurisdiction on the basis of presumption. Accused was neither a public servant nor public property was involved in the case. Commission of an offence of misappropriation of the private funds by a person falling within definition of pubic servant would not be triable by the Special Judge Anti-Corruption.

11. In case of Muhammad Moosa (supra) it was observed as under:- "

9. It has been noticed during hearing that the Anti-Corruption Police who has authority under law to prosecute the Revenue Officers subject to sanction by the administrative head, are exceeding their authority by holding inquiries on anonymous applications and on spy reports. They law does not authorize Anti-Corruption Police to entertain any application of any private person in respect of private land. If a complaint of a private person pertains to any entry of land, which is not owned by the Government, is allowed to be entertained, it would amount to usurping the powers of Revenue Authority provide under the Sindh Land Revenue Act, 1967. The Officer of the Anti-Corruption can only take cognizance in those matters in which the Government land is involved and they do not have the authority to determine dispute in regard to entries pertaining to private lands nor the law authorize them to entertain any complaint in regards to title dispute between the private parties. The authority of Anti-Corruption police is confined to investigate into the entries kept in respect of Government lands and dispute in regard to the private lands are subject to jurisdiction of the Revenue Authorities and/or of the Civil Courts.

10. In future the Anti-Corruption Police is directed to stay its hands while entertaining complaints of private persons in regard to any entry in Revenue Record belonging to the private persons. In future any cognizance by the Anti-Corruption Police over private disputes would expose them to criminal prosecution for abusing their powers."

12. Considering the above facts and circumstances, I am of the view that complainant was not competent to lodge instant FIR against the applicant in respect of private land when owner of the land had approached the concerned revenue authorities for correction and rectification of the relevant entries in revenue record of rights. Learned trial Court has committed material irregularity and serious illegality while dismissing application under section 249-A, Cr.P.C. for acquittal by the applicant, thus impugned order attracts intervention of this Court and same stands set-aside. Consequently, instant criminal miscellaneous application stands allowed and applicant is acquitted from the charge under section 249-A, Cr.P.C. SL/D-12/Sindh Application allowed.