Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Chaudhry ABDUL RAZZAQ and others VS Respondent: THE STATE and others
Court Name: High Court of Azad Jammu and Kashmir Judge(s): Ghulam Mustafa Mughal, Sher Zaman Chaudhary Title: Chaudhry ABDUL RAZZAQ and others vs THE STATE and others Case No.: Criminal Appeals Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of 2002 Date of Judgment:2002-06-17 Reported As: 2002 YLR 96 Result: Appeal accepted
Judgment ORDER ' GHULAM MUSTAFA MUGHAL, J.---The above captioned appeals are directed against the even dated judgments of the Ehtesab Court Mirpur recorded in References Nos. 5, 6,7,8 and 9 on 5-1- 2002. ' All the convict-appellants have challenged their conviction by filing the aforesaid appeals whereas feeling aggrieved and dissatisfied with the quantum of sentence awarded by the trial Court, the Azad Jammu and Kashmir Ehtesab Bureau has also challenged the same with a further prayer for recalling the acquittal order recorded under section 5(2) of Prevention of Corruption Act, 1950. As the allegations levelled against the accused-convicts are of similar nature and the main question that needs determinations is the same, therefore, all the appeals can be conveniently disposed of together through this single judgment. However, for proper perception of the facts, the case of the Ehtesab Bureau as unfolded in all the references is summarized hereinafter respectively. All the references against the convict-appellants were filed on 17-2-2001. In all the references, it is alleged that Chairman, Azad Jammu and Kashmir Ehtesab Bureau, received a complaint to the effect that the Chairman, Mayor, Administrator, Municipil Corporation Mirpur in their respective tenure have made the allotments of plots in the name of the persons separately incorporated in the above mentioned references. It is stated that the allotments have been made in violation of the rules and criteria provided by Mirpur Municipal Committee and regulations for development and disposal of the plots and estates, Regulations, 1985 (which is hereinafter to be referred as Regulations). On receiving the complaint, the Chairman Ehtesab Bureau deputed Sardar Muhammad Kabir Khan, D.S.P Investigation Ehtesab Bureau, for -facts finding inquiry who after doing needful, reported the matter and endorsed the complaint earlier received by the
---
## Page 2
Chairman. On being satisfied about the violation as alleged in the complaint, the Chairman ordered the Investigation. All the convict-appellants were apprehended. The references contained that the accused-appellants in their capacity as. a. Chairman, in their respective tenure have either made the allotments of plots or regularised the same in violation of Regulation 9(2) of the said Regulations. It is also pointed out that Regulation 8 and 16 of the said Regulations have not been complied with while making or regularizing the allotments. According to the prosecution, in this view of the matter, the accused-appellants have committed the offences listed in the references. The prosecution filed all the references on 17-2-2001. After leading the evidence, the trial Court convicted the appellants under section 4 of Azad Jammu and Kashmir Official Misdemeanour Act, 1948 as well as under section 6(5) of Public Office (Misconduct) Ordinance, 1965. The learned Judge, however, acquitted all .The accused in the offence under section 5(2) of the P.C.A It is the aforesaid judgments of conviction which are now under challenge. ' At trial, the prosecution examined four witnesses in all the references i,e, Muhammad Ramzan Record Keeper, Shabir Ahmed Junior Clerk, Muhammad Farid Junior Clerk, Muhammad Mushtaq Constable and Muhammad Kabir Khan, D.S.P. Beside the aforesaid evidence, the prosecution also relied upon the allotment files which were taken into possession from the office of the Municipal Corporation Mirpur. All the files are relied upon by the prosecution as a documentary evidence of the cases. These files have been produced as P-1 to P-20 in each reference and it is worthwhile to mention here that only 20 allotments in each of the references have been picked up to have been made in violation of the rules referred hereinabove. ' The learned Advocates appearing for the appellants have contended that for proving the charge against the accused-appellants, it was enjoined upon the prosecution to prove by the cogent evidence:- (i) That the disputed allotments have been made in violation of Regulations 16, 9(2) and 8 of the Estates Disposal Regulation, 1985. To ascertain the legality and correctness of the allotments, the prosecution was bound to prove the contents of the files recovered from the office of the Municipal Corporation. The files have not been exhibited and their contents have not been proved as per requirement of law; therefore, it is not established as to who has made the allotments and the manner of alleged violation remained shrouded in mystery.. (ii) That not only proof of violation of the aforesaid rules was condition precedent for proving the charge but it was equally essential to prove that the allotments were made by misusing the authority by the convict-appellants and such misuse fell within the mischief of `misconduct' as envisaged by section 2(d) of the Public Office (Misconduct) Ordinance, 1965 and section 4 of Azad Jammu and Kashmir Official Misdemeanour Act, 1948. (iii) That the prosecution has failed to comply with the mandatory provisions of section 342 of the Cr.P.C, therefore, the documents referred to and relied upon by the prosecution could not be read against the appellants and the same were liable to be ruled out of consideration; thus, the judgment of the trial Court is against the settled principles of the Criminal Jurisprudence. The learned Judge has not properly appreciated the record and the legal position, therefore, fell in error in convicting the appellants. All the cases were the cases of no evidence; neither the criminal intention nor the mens rea was proved, therefore, conviction is unsustainable. (iv) That the mandatory provisions of section 234, Cr.P.0 have been violated and thus the trial stands vitiated. (v) That the trial has been conducted in total violation of the rules as the documents relied upon by the prosecution were not supplied to the accused-appellants. (vi) That the conviction recorded is also violative of section 26 of the General Clauses Act, 1877 as adapted in Azad Jammu and Kashmir.
---
## Page 3
' The learned Advocates for the convict-appellants in support of the appeals referred to and relied upon 1969 PCr.LJ 8, 1977 SCMR 109, PLD 2000 Kar. 24, 2000 PCr.LJ 1105; PLD 1973 Azad J&K 11, 2001 YLR 2936; 1999 PCr.LJ 1339; PLD 1987 Azad J&K 133; PLD 1977 SC (AJ&K) 1, 1981 PCr.LJ 661; PLD 1959 Kar. 56 and PLD 1961 Lah. 269. ' The arguments raised on behalf of the learned Advocates for the appellants have u.:en controverted by the learned Chief Prosecutor Ehtesab Bureau. The learned Chief Prosecutor vehemently contended that there was documentary evidence in support of the charge against the convict-appellants. The trial Court has properly appreciated the evidence and has rightly convicted them, after finding them guilty, in the offences under which they were charged. The learned Chief Prosecutor further argued that the manner of proof of files has never been objected to by the appellants, therefore, in appeal they are precluded from raising such objections. The learned Advocate maintained that keeping in view the corruption in the society, the technicality of law should not be allowed to frustrate the very object of Ehtesab. The convict-appellants were alive of the proposed evidence, hence, they were bound to rebut the same. The learned Advocate also repelled the contention of the learned Advocates for the appellants that the trial stands vitiated in view of section 234 of Cr.P.C. The learned Chief Prosecutor is of the view that the trial could only be vitiated in .View of sections 529 and 530 of the Cr.P.C. The learned Advocate also objected to the judgment on the ground that in case where charge is proved by the documentary as well as by oral evidence, then it is enjoined upon the trial Court to pass the maximum sentence provided by the Penal Law. There was no justification for leniency in the sentence nor the trial Court has given any reason in support of the lesser punishments. The learned Chief Prosecutor also argued that acquittal under section 5(2), P.C.A, is also violative of law liable to be recalled and appeals filed by the Ehtesab Bureau have to be accepted and the accused-convicts be punished under section 5(2) of the P.C.A. ' We have heard the learned Advocates for the parties and have perused the record as well as the evidence in the cases. Before discussing the prosecution evidence led in support of the charge, it is useful to reproduce the relevant provision of law under which the convict-appellants have been convicted. The learned Ehtesab Judge through the impugned judgment held that accused- appellants have violated the Regulations 8, 9(2) and 16 of the Estate Disposal Regulations, 1985 and, thus have committed the offence under section 4 of Misdemeanour Act, 1948 as well as the offence of misconduct as visualized by section 6(5) of the Public Office Misconduct Ordinance, 1965. Sections 3 and 4 of the Misdemeanour Act, 1948 are reproduced as under:- "3. What is misdemeanour.--Any person holding office under the Azad Jammu and Kashmir Government, shall be deemed to be guilty of misdemeanour if:--- (a) he oppresses any citizen of Jammu and Kashmir State within his jurisdiction, under the colour of his office or authority: or (b) he wilfully disobeys or omits, forbears or neglects to execute any lawful order or instructions of the Ministry of the Government or his superior officers: or . (c) he is guilty of wilful breach of trust or neglect of the duties of his office; or (d) being a Minister, Head of Department or being a person employed or concerned in the collection of revenue or administration of justice, he is concerned or has any dealings or transactions by way of trade or business in any part of Azad Jammu and Kashmir State for the benefit either of himself or of ,any other Person otherwise than as shareholders in any joint stock company or trading corporation, having been specially permitted to do so; or (e) demand, accepts or obtains, or agrees to accept or attempts to obtain from any person, for himself or for any other person any gratification, gift, gratuity or rewards other than legal remuneration, as a motive or reward for doing or for forbearing to do any official act, for showing or
---
## Page 4
forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or with any person, as such except in accordance with such rules as may be made by the Government as to the receipt of presents. 4 Punishment for misdemeanour.---Any person who commits misdemeanour shall on conviction by a Magistrate of the First Class, be punished with imprisonment of either description for a term which may extend to three years or with fine or both and shall in addition be liable to be dismissed from his 'office or appointment.' ' Similarly it will be useful to reproduce section 2(d) and subsection (5) of section. 6 of the Public Office (Misconduct) Ordinance, 1965. "2(d). 'Misconduct' means any subversive activity, the preaching of any doctrine or the doing of any act which contributes to political instability, . Bribery, corruption, jobbery, favouritism, nepotism, wilful mal administration, wilful misapplication or diversion of public money or moneys collected whether by public subscription or otherwise or any other abuse of whatsoever kind of power or position and any attempt at, or abetment of, such misconduct; ' Sections 62................... ' Subsection (5). Where after the conclusion of the trial the Special Court finds the Accused person guilty of misconduct it may pass a sentence of fine or of imprisonment for a term not exceeding three years or of both." ' Section 3 of Misdemeanour Act, 1948 reproduced above postulate that a holder of public office shall be deemed guilty of misdemeanour if he commits any act enumerated in clauses (a), (b), (c), (d) and (e) of section 3 and if the charge is proved, the accused is liable to be punished with the imprisonment of either description for term which may extent to three years. Section 2(d) of Public Office (Misconduct) Ordinance, 1965 covers all the acts mentioned in clause 2(d) as misconduct and on proving the aforesaid misconduct, the person is liable to be punished under section 6(5) to a sentence of fine or of imprisonment for a term not exceeding three years or both. The case of the prosecution is that by violating the Regulations 16, 9(2) and 8 of the Estate Disposal Regulation, 1985, the accused-appellants have committed the offence mentioned hereinabove. It is, therefore, equally essential to reproduce the relevant Regulations for proper appreciation of the case, hence, Regulations 8, 9 and 16 are respectively reproduced as under:- "8. Procedure for Allotment:- (1) (a) On receipt of applications a list shall be prepared and affixed on notice board. (b) The committee shall cause scrutiny of these applications to eliminate non-deserving applications and to determining the priority wise category to which a particular applicant belongs. Lists of these applications, category-wise will be prepared and placed on notice board. ' The list of non-deserving applications, with reasons for rejection shall be notified; (c) After scrutinising, the eligible applicants shall be given plots by drawing of lots in proportion approved vide Regulation 9(2). (d) Eligibility for applying for allotment of plots; (i) applicant must belong to any one of the categories given in Regulation 9(2) of these Regulations. (ii) Applicant must be major/ independent; (iii) applicant or head of his family have not been allotted any residential or commercial plot of more than 5 Marlas as the case may be, in Mirpur Town or Hamlets including those disposed off; (iv) for residential plots the applicant or head of the family or any of his dependents have not been allotted any residential Wapda Quarter/ Bungalow. (2). The procedure laid down in rule 8 sub-rule (1) clauses (a) to (d) (i-to iv) shall not be applicable in case of allotment/regularization of the Awkward land and the Chairman of the Committee shall be empowered for the disposal of such case on its merits.
---
## Page 5
9. Policy directive for allotment---(1) The Committee may and when so directed by the Government shall issue from time to time, policy directive indicating the order of preference for making allotments to different applicants and other guide lines for ensuring homogenous, social, cultural and civic environment while making allotments. 2. Without prejudice to the generality of clause (1) the order of preference for applicants and the share of plots of different categories of applicants in Mirpur Town shall be as under:- (i) Mangla Dam affected person and their sons 60%: ' Provided that the affected persons defined in the Regulations may be given priority in allotment and the balance of the plots, if any, will be allotted to their deserving sons who are heads of their independent factms: ' Provided further that for the purpose of price, the sons of the affected persons shall be deemed to be non-affected. (ii) residents (Domicile) of ' Mirpur District 5% and (iii) other than categories (i) and (ii) above including professional groups like lawyers, doctors, journalists and Engineers etc... 5% (iv) Jammu and Kashmir Nationals... 5% (v) Special quota reserved for Prime - Minister. 25% 16. Regularization of encroachments etc.---The Chairman may regularise the encroachments subject to the provision of Master Plan and Local Government Ordinance on any piece of Government land/rejected area in a prescribed manner; provided that:- (i) The person who has encroached upon the Government land or rejected area, fall in criteria under clause 9(2) above. (ii) The encroachment does not affect the Master Plan/Original planning; (iii) The Encroachment may not affect any road, plot, or Or areas reserved for Government buildings, like Hospitals, schools, Dispensaries, or any other public institution or areas reserved for disposal works sewers of water supply lines, etc. (iv) The encroachment which has been effected prior to 30-6-1981 and the same is sufficiently approved by the 'official records; (v) The encroachment is by no means against the approved housing scheme and more than one Kanal." ' Regulation 8 reproduced above enjoins upon the authorities that whenever applications are received for allotment, then notice of those shall be affixed on the board. The Committee constituted under the aforesaid Regulation is required to cause scrutiny of these applications for excluding the non-deserving applicants and to determine the categories-wise priority to which a particular applicant belongs. After scrutiny, the plots are to be allotted by drawing of lots in proportion approved vide Regulation 9(2). Regulation 8(d) also postulates the eligibility for applying for the allotment with reference to Regulation 9(2) of these Regulations. It also incorporates that the applicant must be major/independent. It is also the requirement that such applicant or head of his family had not previously been allotted residential or commercial plot of more than 5 marlas. Similarly for residential plots, the applicant or, head of the family or any of his dependents must not have been allotted any residential WAPDA Quarter/Bungalow. Regulation 8(2) creates an exception for the allotment procedure by commanding that criteria mentioned in clauses (a) to (d) of rule 8 shall not be applicable to the cases of allotment/regularizing of awkward land and the Chairman of the Committee is empowered for disposal of any such case on its merits. Regulation 9 provides the policy directive for the allotment. A perusal of the same, as referred hereinabove, reveals that the Government has reserved the power to frame the policy and issue the directives from time, to time. It is further postulated that 60% of the total plots, shall be allotted to Mangla Dam affectees. The quota for the residents of Mirpur is fixed as 5% and other
---
## Page 6
than the categories mentioned in sub-clauses (i) And (ii) are also provided 5% quota. 5% quota is reserved for Jammu and Kashmir Nationals whereas 25% quota has been reserved for Prime Minister. Regulation 16 deals with the special situation i,e, for regularisation of encroachments etc. The regularization could only be made if the person seeking regularization fell in the criteria provided by Regulation 9(2), referred above. Another condition is that the encroachment should not affect the master plan/original planning. Similarly the regularization is prohibited where any plot or area is reserved for Government buildings like Hospitals, Dispensaries or for any other public institution. Another condition precedent is that only those encroachment shall be regularized which have been affected prior to 30-6-1981. Keeping view of above directive mentioned in the Regulations, case of the prosecution is to be judged in the light of the evidence led in support of the charge. The prosecution has examined witnesses, namely, Muhammad Ramzan, Shabir Ahmed, Muhammad Farid, Muhammad Mushtaq who are recovery witnesses of the record i,e, the files recovered or taken into possession by Muhammad .Kabir Khan, D.S.P(Investigating Officer in all the references). The learned Advocates appearing for the convict-appellants are right in contending that in order to succeed and to prove the charge, the prosecution was bound to prove that the alleged allotments have been made by the accused-appellants in their capacity as Chairman, Mayor, Administrator etc, as the case may be. It was also to be proved that while making the allotments, the procedure for allotment provided in Regulation 8(2) had been violated. Similarly, violation of the - policy directive for allotment as enshrined in Regulation 9 was also to be proved. Lastly, the learned Advocates maintained that the violation of Regulation 16 was also to be proved before recording the conviction of the appellants. The learned Advocates have vehemently contended that not only violation of the rules referred hereinabove was to be proved but it was to be further proved that such violation of rules and regulation was wilful and had been committed for the pecuniary advantage of the accused or undue favour to the allottees. The learned Advocates contended that these violations could be ascertained by proving the record which are the files of allotment marked by the prosecution as P.1 to P.20 attached with each reference. The contents of the files have not been proved and even not put to the convict-appellants, therefore, the basic requirement has not been proved. The crucial point for determination in all the appeals is as to whether the documents P.1 to P.20 incorporated in all the references in respect of allotments made in favour of the persons mentioned in the references could be considered as a legal evidence against the accused-appellants or not. As indicated in the references, the prosecution case rests upon the documentary evidence, therefore, we are of the considered view that contents of the files are to be proved as required by the Law of Evidence, whereby if a document is not proved, the same cannot be used as a legal evidence against the accused person. Chapter 5 Article 72 of Qanun-e-Shahadat, 1984 lays down the mode of proving the contents of the documents. The scheme of proof is further laid down up to section 100. Section 78 requires that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting on so much of the document as is alleged to be in that person's handwriting, must be proved to be in his handwriting. The superior Courts have laid down the following criteria for proving the contents and signature of a person:- (i) By calling the person who signed or wrote the documents. (ii) By calling a person in whose presence the 'document was 'signed or written. (iii) By calling a handwriting expert. (iv) By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written. (v) By comparing in Court the disputed signature or writing with some admitted signature or writing.
---
## Page 7
(vi) By proof of an admission by the person who is alleged to have signed or written the document that he signals or wrote it. ' Viewing the prosecution's case in light of the aforesaid criteria, it becomes crystal clear that none of the above reproduced requirement is fulfilled, therefore, the contents of the alleged files, relating to allotments and regularization of the plots, remain unproved. Such proposition has also received the attention of the superior Courts of Pakistan in various cases. The consensus I that in case of documentary evidence not on the document itself should be produced I evidence but its contents and signature of the person who allegedly, prepared the document should also be proved. A reference may made to P.LD 1969 SC 477 "Messrs Bengal Friends and Co, Dacca v. Messrs Gour Benode Saha and Co. Calcutta," wherein the learned Judges opined as under. "In the absence of such a provision in the Evidence Act regarding entries in books of account kept in regular course of business the mere production of the account books does not constitute evidence of the transaction and accounts therein recorded. Mr. Israrul Hussain further pointed out that the account Books containing Exh.G.B. 3 series were not even exhibited by the Deputy Registrar. In the affidavit of the respondent sworn on the 25th August, 1958, in paragraph the genuineness of the records, Exh.G.B. 1 to G.B. 10, is affirmed, but this bald statement did not constitute proof of the entries in these series unless they were in his handwriting and he swore to the correctness of the transactions mentioned therein. The documents Exh.G.B. 3 series relied upon by the respondent No, 1 in support of his claim that since 1937 he had been selling on large scale in Bengal and Assam including the reverine districts now constituting East Pakistan coaltar bearing trade mark "Jahaj Marka Al-Katra" with a device of a ship were in this view wrongly treated as evidence by the Courts below. ' The above criticism of Exh.G.B. 3 series and the supporting account books apply to the remaining series of documents produced by the respondent. Exh.G.B. (1) is copy of a judgment in Criminal Revision Case No, 886 of 1941 of the Calcutta High Court; Exh.G.B.2 is copy of the complaint filed in that case by respondent No, 1 in the Court of the Additional Chief Presidency Magistrate, Calcutta, under sections 482,483,485 and 486, I.P.C., against Sitaram and others…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.