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Petitioner: Mst. SAKINA BIBI VS Respondent: THE STATEHonorable Justice Riaz KayaniA.D. Nasim,Sh. Ghias-ud-Din
2002 Y L R 1914
2002 Y L R 1914
[Lahore]
Before Riaz Kayani, J
Mst. SAKINA BIBI‑‑‑Appellant
Versus
THE STATE‑‑‑Respondent
Criminal Appeals Nos.982, 983, 984, 1513 and 1158 of 2000, decided on 16th April, 2001.
(a) Penal Code (XLV of 1860)‑‑‑
‑‑‑‑Ss. 420, 468 & 471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑ Appreciation of evidence‑‑‑Exchange deed allegedly executed by the Attorney who was wife of the owner of the land in question, in favour of accused, was found to be a transaction manipulated through forgery Stamp paper had not been obtained by the said Attorney of the complainant‑‑‑Exchange of 200 Kanals of valuable land with 19 Marlas of land though situated in a Housing Colony and sale of land measuring 126 Kanals and 19 Marlas in favour of accused through an oral mutation, were based on fraud having been committed with active connivance of the Patwari who had prepared and written the document which was not signed by the Attorney‑‑‑Proceedings under the criminal law could be initiated if dishonest intention to cause wrongful loss to the owner and wrongful gain to the accused through forgery or cheating was proved‑‑ Impugned judgment of Trial Court was based on proper appraised of evidence conforming to the judicial standard laid down by the superior Courts‑‑‑Convictions and sentences of accused were upheld in circumstances.
(b) Practice and procedure‑‑‑
‑‑‑‑ Administration of justice‑‑‑Initiation of civil and criminal proceedings together‑‑ Civil and criminal proceedings both can be taken simultaneously‑‑‑By way of abundant caution criminal proceedings should be stayed and adjudication from civil forum should be awaited.
A.D. Nasim for Appellant.
Sh. Ghias‑ud‑Din for the Complainant.
JUDGMENT
Through this single judgment I intend to dispose of Criminal Appeal No.982 of 2000 tiled by Mst. Sakina Bibi, Criminal Appeal No.983 of 2000 filed by Muhammad Ismail, Criminal Appeal No.984 of 2000 by Abdul Haq Shahid Khan son of Sakhi Muhammad, Criminal Appeal No.1513 of 2000 by Muhammad Ali, and Criminal Appeal No.1158 of 2000 by Muhammad Ishtiaq son of Muhammad Abdullah whereby Mst. Sakina Bibi was convicted under section 420, P.P.C. and sentenced to 9 months R.I. and a fine of Rs.2,000. In default of payment of fine to further undergo 30 days S.I. She was also convicted under section 471, P.P.C. and sentenced to 9 months R.I. and a fine of Rs.2,000 failing which she had to undergo 30 days S.I. She was further convicted under section 468, P.P.C. and sentenced to 9 months R.I. and a fine of Rs.2,000 and in case she fails to deposit the fine she had to undergo 30 days S.I. All the sentences were ordered to run concurrently except the sentence for non payment of fine. Benefit of section 382‑B, Cr.P.C. was extended.
2. Muhammad Ismail appellant was convicted under section 420, P.P.C. and sentenced to 2 years R. I, and a fine of Rs.2,000. In default of payment of fine to further undergo 30 days S.I. He was also convicted under section 471, P.P.C. and sentenced to 2 years R.I, and a fine of Rs.2,000. In default of payment of fine to further undergo 30 days S.I. Further conviction was under section 468, P.P.C. and was sentenced to 2 years R.I. and a fine of Rs.2,000. In case of failure to pay the fine to further undergo 30Rdays S.I. All the sentences were ordered to run concurrently except the sentence of payment of fine. Benefit of section 382‑B, Cr.P.C. was extended.
3. Abdul Haq appellant. was convicted under section 468, P.P.C. sentenced to two years. R.I. and, a fine of Rs.10,000. In default of payment of fine to further undergo three months S.I. He was ,also convicted under section 471, P.P.C. and sentenced to two years R.I. and a fine of Rs.10,000. In case of failure to pay the fine he was ordered to undergo three months S.I. All the sentences were ordered to run concurrently except non‑payment of fine. Benefit of section 382‑B, Cr.P.C. was extended.
4. Muhammad Ali Patwari was convicted under section 420, P.P.C. and sentenced to two years R.I. and a fine of Rs.10,000. In default of payment of fine to further undergo three months S.I. He was also convicted under section 468, P.P.C. and sentenced to four, years R.I. and a fine of Rs.10,000. In default of payment of fine he was ordered to further undergo three months S.I. He was convicted under section 471, P.P.C and sentenced to four years R.I. and a fine of Rs.10,000. In default of payment of fine to further undergo three months S.I. Lastly he was found guilty under section 5(2) of the Prevention of Corruption Act, 1947 and was sentenced to four years R.I. and a fine of Rs.10,000. In case of non‑payment of fine to further undergo three months S.I. Benefit of section 382‑B, Cr.P.C. was extended to him.
5. Muhammad Ishtiaq was convicted under section 420, P.P.C. and sentenced to two years R.I. and a tine of Rs.10,000. In case of non‑payment of fine to further undergo S.I. for three months. Conviction under section 468, P.P.C. was also recorded and sentenced passed was for four years R.I. and a fine of Rs.10,000. In case the fine was not paid he was ordered, to suffer S. I for three months: He was also convicted under section 471, P.P.C and sentenced to four years R.I. and a fine of Rs.10,000 and in case the fine was not deposited he was ordered to suffer three months' S.I. All the sentences were ordered to run concurrently except the sentence of non‑payment of fine. Benefit of section 382‑B, Cr.P.C. was extended.
6. Half of the fine if recovered was to be paid to the complainant while the remaining half was to be deposited in the Government treasury.
7. Complainant Mst. Shamim; wife of G.B. Gebrial has filed Criminal Revision No.777 of 2000 seeking enhancement of the sentence awarded to the appellants. This petition shall also be decided alongwith the appeals.
8. Through a written complaint H.F. Gebrial son of G.F. Gebrial addressed to the S. H. O. Police Station Hujra Shah Muqeem on 25‑4‑1997 at 3‑30.p.m. submitted that his mother Mst. Shamim was, owner of 326 Kanals, 19 Marlas of agricultural land situated in Mauza Saidpur but since she was physically and mentally ill and was unable to move she appointed her husband and complainant's father as general attorney who leased out complete land measuring 326 Kanals and 19 Marlas to Muhammad Ishtiaq son of Muhammad Abdullah resident of Chak No. 1/4‑L, Tehsil and District Okara for five years commencing from 16‑.1‑1993 through a registered lease deed. His father G.F. Gebrial was taken ill and for this reason Muhammad Ishtiaq making use of his ailment alienated in his name land measuring 25 Acres through a bogus and fraudulent exchange deed. His father's health worsened and was admitted in Shaikh Zayed Hospital on 15‑11‑1996 who later on died on 21‑11‑1996. On 28‑11‑1996 Muhammad Ishtiaq sold the remaining land in favour of Kamal Din son of Masta Dogar, Sakina Bibi and Muhammad Ismail son of Muhammad Fazal in connivance with Muhammad Ali, Patwari Halqa Basirpur, Islam‑ud‑Din son of Muhammad Suleman resident of Okara and Abdul Haq Shahid Khan son of Sakhi Muhammad khan and in this manner deprived his mother Mst. Shamim of her total land measuring 326 Kanals, 19 Marlas through exchange deed and oral sale affected through Mutation No.251, dated 28‑11‑1996. Through the fraudulent transactions the accused deprived them of a sum of Rs.50 lacs being the value of the property.
9. At this juncture it would be pertinent to mention that originally ten persons were arraigned as accused, out of whom Islam‑ud -Din died and proceedings against him came to an end on 15‑6‑1999 whereas Abdul Hamid Lambardar also died and proceedings against him stood abated on 29‑2‑2000, Ch. Nazir Ahmad Bhatti, Advocate and Kamal‑ud‑Din accused applied for tender of pardon which was accepted vide order of the Court, dated 10‑8‑1999 and 14‑9‑1999 respectively after which both of them appeared as prosecution witnesses. Abdul Hamid, Lambardar also died on 12‑2‑2000 and the proceedings against him came to an end. Muhammad Hanif and Abdul Haq also moved applications for grant of pardon. However, on 20‑1‑2000 the trial Court rejected their application. On 2‑2‑2000 Muhammad Hanif confessed his guilt and keeping in view his age and health a lenient view was taken, therefore, he was convicted under section 468, P.P.C. and sentenced to nine months R.I. and a fine of Rs.1,000. In default of payment of fine he was ordered to suffer S.I. for one month.
Benefit of section 382‑B, Cr.P.C. was extended.
10. Rana Sultan Mahmood, Inspector conducted the investigation. On 20‑10‑1997 Ishtiaq appellant produced original exchange deed Exh.PA which was taken in possession through memo. Exh.PM. On the same day the complainant produced original general power‑of‑attorney Exh.PN and original lease Deed Exh. PO which were taken in possession vide memo. Exh.PQ. Application Exh.PR was moved to the Sub‑Registrar for permission to check the record of registered Deed No.2118 pertaining to exchange and the application for appointment of Local Commissioner. Another application Exh. PS was moved to the Treasury Officer, Okara for consulting the record and recording of .the statement of concerned clerk. Application, dated 30‑10‑1997 marked as Exh.PT was moved before the Sessions Judge, Lahore for permission to peruse the record of Standard Chartered Bank, The Mall, Lahore and United Bank Ltd. Dayal Singh Mansion, the Mall, Lahore where the general attorney and father of the complainant G.F. Gebrial had his account. The application was allowed. Accordingly on 17‑11‑1997 Muhammad Ashfaq, Second Officer, UBL, the Mall, Lahore produced specimen signatures card of G.F. General P.8 opening accounts Form No.3912 was taken in possession vide memo. Exh.PU while the Assistant Manager, Standard Chartered Bank, Lahore produced cheques Exhs.P.9 to P.13 which were taken in possession through memo. Exh.PV. These cheques were issued by G. F. Gebrial. On 12‑11‑1997 Shehzad Tariq, Account Officer Noon Brothers where G.F. Gebrial was employed produced documents P.1 to P.5 containing signatures of G. F. Gebrial which were taken in possession vide memo. Exh.PK. These documents containing signatures of G. F. Gebrial were secured in possession and were sent to the Forensic Science Laboratory for comparison of his signatures on the exchange deed Exh. PA and on the mutations etc. including the general power‑of‑attorney and the lease deed. On 21‑11‑1997 H.F. Gebrial complainant produced certificates Exh.PF to Exh.PH and the attendance register of Noon Brothers, dated 5‑9‑1995 and a copy of the Report No.5 also, dated 5‑9‑1995 of Roznamcha Waqiati Exh.P.14, two parts of Mutation No.251 which were taken in possession vide memo. Exh.P.W. All the accused persons were on bail and treated as arrested thereafter through S.H.O. Police Station Hujra Shah Muqeem the challan was submitted in Court.
11. Shahzad Tariq, Accounts Officer Noon Brothers (Pvt.) Ltd. appeared as P.W.6 and stated that G. F. Gebrial was working as Administrative Manager in the firm alongwith him. He joined investigation on 12‑11‑1997 and produced certain documents which were taken in possession by the Investigating Officer, mention of which has already been made. He brought the original register of attendance which indicated that on 5‑9‑1995 from 8 a.m to 4‑30 p.m G.F. Gebrial attended the office. Exh.P.6 was tendered as copy of the attendance register which was compared with the original and found correct. This witness was not cross‑examined by the prosecution.
12. Aftab Majid, Magistrate appeared as P.W.7 and stated that from August, 1995 till March, 1997 he remained Consolidation Officer, Okara and his jurisdiction extended to Depalpur and Renala Tehsil as well. Mutation No.251 Exh.PC, (relates to oral sale) was sanctioned by him on 26‑11‑1996. Mutation was put up to him for the first time on 11‑10‑1995. Parties to the mutation appeared before him and were identified by Muhammad Ali, Patwari who had entered the Mutation alonwith Muhammad Hanif, Lambardar and Mehr Muhammad Patti Dar. Mutation was finally sanctioned on 28‑11‑1996. Mst. Shamim Akhtar through G.F. Gebrial moved an application that they were not party to the transaction mentioned in the Mutation No.251 and that fraud was committed with them, upon which he checked the mutation and doubting its validity he moved the Collector, Okara for permission to review the same. After receiving sanction he directed the Tehsildar, Depalpur to give him the mutation but on the next day he was transferred. Mutation No.271 Exh.PL regarding exchange was also attested by him on the basis or registered exchange deed Exh. PA.
13. H.F. Gebrial son of G.F. Gebrial appeared as P.W.14 and while reiterating the contents of the F.I.R. stated that Ishtiaq in collusion with Muhammad Ali, Patwari, Abdul Haq and Islam‑ud‑Din accused fabricated a fictitious exchange deed Exh.PA through which 200 Kanals of land belonging to his mother were shown to have been exchanged with 19 Marlas of land; the signatures on Exh.PA of his father were forged and that regarding remaining 126 Kanals, 19 Marlas of land Ishtiaq accused alongwith Kamal Din Dogar, Muhammad Ismail and Sakina Bibi managed to transfer the land in their favour through Mutation Exh.P.C. bearing No.251. On 21‑11‑1997 he produced Medical Certificate, dated 5‑9‑1995, receipt for reimbursement and another revenue document which were taken in possession by the Investigating Officer through memo. Exh.PG, Exh.PH and Exn.PI. He categorically stated that his father had not exchanged on behalf of his mother 200 Kanals of land for 19 Marlas nor had alienated the remaining land in favour of lshtiaq Ahmad accused.
14. Dr. Zia‑ur‑Rehman Siddiqui, Specialist Physician and Consultant Ammer Medical Center Jail Road, Lahore appeared as P.W.5 and stated that G.F. Gebrial came to him for medical check up on 26 8‑1995 and 5‑9‑1995. He was patient of high blood pressure and kidney failure. Receipts, copies of which were exhibited as Exh.PF and Exh.PG were issued by him. He also issued certificate Exh.PH about the visit of G.F. Gebrial to his clinic on 26‑8‑1995 and 5‑9‑1995. Prescriptions Exh..PJ was in his hand and true copy of the original. Because of kidney problem he had advised him to Kidney Specialist Hospital and Sheikh Zayed Hospital. He stated in cross‑examination that the hours of his clinic were from 5 p.m. to 8‑30 p.m.
15. Muhammad Bashir Qureshi, Examiner of Questioned documents, Forenisc Science Laboratory, Lahore appeared as P.W.4 and stated that since 1968 he has been working as Handwriting Expert. He took one year training in to job from the Forensic Science Laboratory and examined thousands documents and appeared in Courts to testify them. In the instant case S.P. of Police Range Crimes, Lahore addressed letter, dated 28‑11‑1997 to the Director, Forenisc Science Laboratory for examination of question deed of exchange Exh.PA, one Mutation No.251 Exhs. PC and 29 routine documents Exh. R/1 to Exh.R/29 which were admitted signatures of G.F. Gebrial received in the office of Forenisc Science Laboratory on 29‑11‑1997. The case was marked to him for their examination and comparison. He examined the disputed English signatures marked as Q/1 to Q/6 on the three sheets of Exh.PA and Exh.Q/7 and Exh.PC with the admitted signatures of G.F. Gebrial marked R.1. to R.29. After comparison he was of the opinion that the disputed English signatures Q/1 to Q/7 did not bear identical characteristic with the signatures of G.F. Gebrial on documents R.1. to R.29. He submitted his report as Exh.PD which bear his signatures. He prepared enlarged photographs of the questioned documents and the signatures written with his remarks. Report is Exh.PE. Points of dis‑similarity have been mentioned in the enlargement of the documents.
16. Ahmad Daud, Junior Clerk, D.C. Office, Okara was examined as P.W.3 who stated that he brought record of Wasiqa No.2118, dated 25‑9‑1995. According to routine two photo copies of the deed are also prepared. He brought original application moved by Ishtiaq Ahmad Bhatti, Advocate, Okara as a Local Commissioner for exchange of land with Mst. Shamim through G.F. Gebrial as attorney. Photocopies of N.I.C. of G.F. Gebrial and accused Ishtiaq were also appended with the same. Exh. PB is attested copy of the application made by Ishtiaq Ahmad accused. On the exchange deed Exh.PA, on its back the signatures of G.F. Gebrial Q.3 were written and was signed by Ch. Nazir Ahmad Bhatti, Advocate according to the record Ch. Nazir Ahmad, Advocate as Local Commissioner produced the registered deed to the Sub‑Registrar and earlier on the application Exh.PB vide his vernacular order appointed Ch. Nazir Ahmad Bhatti as a Local Commissioner. The trial Court compared the attested copy of application Exh.PB with the original and returned the same. This witness was not cross‑examined.
17. Nazir Ahmad Bhatti, Advocate/Local Commissioner after having been granted pardon appeared as approver as P.W.1. He stated that he was appointed as Local Commissioner but through fraud practised by Abdul Haq and Ishtiq he was misled. Abdul Haq, Wasiqa Nawees Okara, Ishtiaq Ahmad and Muhammad Ali, Patwari accused came to him. Abdul Haq told him that: Ishtiaq was his friend and cultivated the land in Mauza Saidpur, Tehsil Depalpur by taking the land on lease from others including Mst. Shamim who was resident of Lahore. G.F. Gebrial is her husband and attorney. Ishtiaq told him that he wanted to buy the land but Mst. Shamin was not willing to sell it and as such he would get this land at every cost. He was told that he would be appointed as Local Commissioner and through a fictitious exchange deed they would secure the land. He consented to it. On 17‑9‑1995 the accused persons came Whim alongwith Islam‑ud‑Din. Abdul Hamid, Sarbrah Lambardar and Abdul Haq alongwith Ishtiaq accused. They had with them exchange deed Exh.PA, according to which 200 Kanals of land owned by Mst. Shamim was to be exchanged with 19 Marlas and 3 Sarsai of land situated in Cooperative Housing Society at 2/4‑L, Okara. In his presence Islam‑ud‑Din, Abdul Haq and Abdul Hamid, Serbrah Lambardar had witnessed this deed whereas the remaining signatures of the concerned persons and the witnesses were already present on the deed. G.F. Gebrial neither appeared before this witness nor was present. However, his signatures were already present on the deed. The witness stated that he never visited Lahore to meet G.F. Gebrial or his wife Mst. Shamim and portion A to A on the back of Exh.PA stood already written in vernacular and he also signed it at their instance. He appeared before the Sub Registrar and got the exchange deed registered. Portion B to B on Exh.PA also contained his signatures and this portion was also signed by Ishtiaq and Abdul Hamid accused. He stated that the exchange deed was the result of fraud to which he had also been made a party.
18. Kamal‑ud‑Din who was granted pardon by the Court appeared as approver as P.W.2 and stated that he was resident of village Saidpur and was an agriculturist by profession. He admitted that Mst. Shamim wife of 6.F. Gebrial owned 326 Kanals and 19 Marlas of land in his village. G.F. Gebrial was the husband and general attorney of Mst. Shamim. Ishtiaq accused had taken the land on lease. He had come to Lahore to see G.F. Gebrial and learnt that Mst. Shanum wanted to sell the land but when he met G.F. Gebrial in the year 1996 he was told that there was no desire to sell the land. 6/7 months later Ishtiaq told him that against 19 Marlas and 3 Sarsai of land he had taken in exchange 200 Kanals of land belonging to Mst. Shamim. Later on Ishtiaq and Muhammad Ali, Patwari told him that the remaining 126 Kanals of land owned by Mst. Shamim could be sold if he pays Rs.2 lacs in consideration of which they would give him 42 Kanals, 6 Marlas. He paid Rs.2 lacs to, both Ishtiaq and Muhammad Ali, Patwari and got mutation with respect to 42 Kanals, 6 Marlas sanctioned in his favour. At the time of sanction of mutation G.F. Gebrial was not present and the mutation was based on fraud. Out of remaining land of Mst. Shamim 32 Kanals was mutated in favour of Mst. Sakina wife of Muhammad Ali, Patwari while 10 Kanals of land was given to Ismail and the remaining 42 Kanals, 7 Marlas was mutated fraudlently in favour of Ishtiaq accused. When he came to know about this fraud he returned possession of the land to the son of G.F. Gebrial.
19. After closure of the prosecution evidence the accused were examined under section 342, Cr.P.C. Ishtiaq admitted execution of general power‑of‑attorney by Mst. Shamim in favour of her husband G.F. Gebrial. He admitted lease of land in his favour. He denied fraud being practised by him in connivance with other and stated that Mutation No.251 relating to sale was sanctioned on 28‑11‑1996 on which date presence of the parties was not required as their statements had already been recorded by the Revenue Officer on 11‑10‑1995. He further admitted execution of exchange deed, which, according to him, was correctly made and registered and that no forgery had been committed. As regards the testimony of Kamal Din and Nazir Ahmad Bhatti, Advocate he stated that they took a somersault in connivance with the complainant and are not dependable witnesses. In reply to the question as to why the prosecution has brought the case against him, it was stated that at the time of sale land measuring 326 Kanals, 19 Marlas was deserted and after sale he made it fertile which increased its value and a metalled road passed through the land. Since price of the land increased the complainant got greedy and manoeuvred the case against him. Earlier the complainant forcibly tried to occupy the land for which he got registered two F.I.Rs. bearing Nos. 190 of 1997 and 240 of 1997 with Police Station Hujra Shah Muqeem. The other accused also made similar statements.
20. Appellants produced D.W.1 Muhammad Arshad in defence who stated that G.F. Gebrial was friend of his father and his son came to him in the year 1997 and in the beginning of 1998. Since his father was a marginal witness of exchange deed and was requested by G.F. Gebrial to either become as witness or resile from his statement. Since his father did not agree a false case was registered. His father died in July, 1998. In cross‑examination he stated that he did not know G.F. Gebrial nor he knew anything about the exchange or sale.
21. Allah Ditta, Qanungo. appeared as D. W.3 and stated that he has brought register of Roznamcha Waqiati for the year 1995‑96. According to Entry No.5, dated 5‑9‑1995 G.F. Gebrial in his capacity as general attorney of his wife Mst. Shanum in presence of Mehr Muhammad son of Suleman Yatti Dar identified by Muhammad Hanif Lambardar and in presence of Lal Din Dogar sold 476 Kanals, 2 Marlas and 126 Kanals, 4 Marlas in favour of Ishtiaq, 42 Kanals, 7 Marlas was soil to Kamal Din son of Masta, 42 Kanals, 6 Marlas in favour of Ismail and Mst. Sakina accused. The land was sold for Rs.4 lacs and it was mentioned in the report that G.F. Gebrial received whole of the consideration and Mutation No.251 was sanctioned. Similarly Mutation No.271 was sanctioned for exchange. This witness admitted in cross‑examination that Roznamch Waqiati was in possession of the Patwari Halqa who was also its scribe. Muhammad Ali accused was Patwari of Halqa to which entries pertained. All the entires were in the hand of Muhammad Ali, Patwari. He admitted that in Report No.5, dated 5‑9‑1995 signatures of G.F. Gebrail are not available. Mutations Nos.251 and 271 are in the hand of Muhammad Ali, Patwari and he was not present when the Patwari produced these mutations before the Consolidation Officer: He further stated that it was not in his knowledge whether the vendors appeared before the Consolidation Officer or not. Neither he was aware whether G.F. Gebrial signed mutation in presence of the Consolidation Officer.
22. Tausif Ahmad Chughtai, Handwriting Export appeared as D.W.4 and stated that he was given photostat copies of exchange deed, dated 17‑9‑1995, photostat copy of general power‑of‑attorney, dated 17‑8‑1992 and photocopy of the lease deed, dated 9‑1‑1993, copy of Cheque No.807711, dated 1‑7‑1995 and 807712, dated 28‑10‑1995, etc. He compared the signatures of G. F. Gebrial on the exchange deed on 17‑11‑1995 and other documents referred to above and found that all the signatures were in the same hand. His report is Exh.DQ. No credibility can attached to this witness as he had only compared the photostat copies of the documents and expressed his inability to know that photostat copies are not admissible in evidence. Original documents were not shown to him and the photostat copies were given by Ishtiaq for which he was paid professional charges. He did not mention from which institution .he received his education as an…
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