Patwari sentenced to ten years Patwari to falsify records But the Lahore High Court upheld the sentence of 3 years imprisonment under Section 420, 5 years imprisonment under Section 468, and 2 years imprisonment under Section 471. date of hearing 15.10.2024 Crl. Appeal No.909/2012

Patwari sentenced to ten years
Patwari to falsify records
But the Lahore High Court upheld the sentence of 3 years imprisonment under Section 420, 5 years imprisonment under Section 468, and 2 years imprisonment under Section 471.
date of hearing 15.10.2024
Crl. Appeal No.909/2012

HCJDA 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Crl. Appeal No.909/2012

Muhammad Arif Zaman and another

versus

The State and another

J U D G M E N T

Date of hearing:

15.10.2024

Appellant by:

Mr. Osama Zaman, Advocate for and with the

appellants (appellants have been identified by their

learned counsel).

State by:

Rana Muhammad Shafique, Deputy Prosecutor

General along with Muhammad Younas, A.S.I.

Complainant by:

Nemo.

Farooq Haider, J.:- This appeal has been filed by Muhammad

Arif Zaman and Zulfiqar Ali (appellants) against the judgment

dated: 10.05.2012 passed by learned Special Judge Anti-Corruption,

Faisalabad Division, Faisalabad/trial court whereby in case arising out of

F.I.R. No.245/2009 dated: 05.06.2009 registered under Sections: 420, 468,

471 PPC {subsequently, offence under Section: 5 (2) of the Prevention of

Corruption Act, 1947 was also added during investigation of the case} at

Police Station: City Toba Tek Singh, appellants have been convicted and

sentenced as under:-

MUHAMMAD ARIF ZAMAN

Conviction

Sentence

Under Section:

420 PPC

“Two Year’s Rigorous Imprisonment” with fine of

Rs.10,000/- and in default thereof to further

undergo S.I. for two months.

Under Section:

468 PPC

“Two Year’s Rigorous Imprisonment” with fine of

Rs.10,000/- and in default thereof to further

undergo S.I. for two months.

Under Section:

471 PPC

“Two Year’s Rigorous Imprisonment” with fine of

Rs.10,000/- and in default thereof to further

undergo S.I. for two months.

Under Section:

5 (2) of PCA,

1947

“Two Year’s Rigorous Imprisonment” with fine of

Rs.10,000/- and in default thereof to further

undergo S.I. for two months

Criminal Appeal No.909/2012

ZULFIQAR ALI

Aforementioned sentences were ordered to run concurrently and

benefit of Section: 382-B Cr.P.C. was also extended to the

appellants/convicts.

It is pertinent to mention here that Muhammad Akhtar accused

became absent after recording of his statement under Section: 342

Cr.P.C. therefore declared as proclaimed offender.

Brief facts of the case in hand are that Zafar Yaseen (complainant/

PW-2) moved application (Ex.PT) for registration of case to Zahid Hussain

S.I. (PW-5) while mentioning therein that accused persons namely

Muhammad Akhtar, Zufiqar Ali resident of House No.234, Street No.2,

Mohallah Islampura, Toba Tek Singh and accused Arif Zaman Patwari

resident of Chak No.320-GB (ب ج), in connivance as well as consultation

with each other, with malafide intention while deceitfully committing fraud

and forgery, prepared a forged, fictitious and fabricated Fard Jamabandi

pertaining to the land bearing Khewat No.642/634, Khatooni No.750,

measuring: 2-K, 0-M (out of total measuring 22-K, 16-M) pertaining to two

plots one Kanal each, reference to Mutation No.11223 dated: 12.02.2008 in

connection with oral sale of land measuring 10-Marla; copy of Daily Diary

No.785 dated: 12.02.2008 and Mutation No.11256 dated: 25.02.2008

situated at Chak No.327/JB, Tehsil & District: Toba Tek Singh regarding Criminal Appeal No.909/2012

the agreement to sell dated: 05.03.2007, whereby they agreed to sell land

@ Rs.52,500/- per Marla and received Rs.600,000/- as earnest money

@ Rs.300,000/- per Kanal whereas remaining amount of sale consideration

of Rs.7,50,000/- was received in the office of Arif Zaman Patwari situated

at Faiz Colony, Toba Tek Singh in presence of Hafiz Abdul Razzaq,

Muhammad Umar and misappropriated the amount with the pretext to sell

the lands; upon completion of period of agreement it came into knowledge

of the complainant that Fard Jamabandi is a forged, fictitious and

fabricated document; accused persons are not owner of the land; they in

consultation with each other having mala fide intention, cheating and fraud

in their hearts, grabbed a sum of Rs.10,50,000/- from the complainant,

which was as a trust with them till completion of agreement and the same

had been misappropriated with mala fide intention; the complainant along

with witnesses went to the accused persons, protested and demanded return

of his amount, whereupon, they while confessing their guilt sought pardon

and promised to return the amount but now they have flatly refused to do

so; upon which, the complainant himself paid amount of agreement to sell

of Rs.10,50,000/- to Muhammad Shafique; when demanded back said

amount from the accused persons, they threatened for involving him in

false cases.

On the basis of said application of Zafar Yaseen (complainant/

PW-2), case vide F.I.R. No.245/2009 (Ex.PT/1) dated: 05.06.2009 under

Sections: 420, 468, 471 PPC was registered at Police Station: City Toba

Tek Singh.

After investigation, report under section 173 Cr.P.C. was submitted in

the Court; Muhammad Arif Zaman, Zulfiqar Ali (appellants) and

Muhammad Akhtar (now P.O.) were put for trial; charge under Sections:

420, 468, 471 PPC read with Section: 5 (2) of the Prevention of Corruption

Act, 1947 was framed against them to which they pleaded not guilty and

claimed trial. Prosecution during trial examined eleven witnesses whereas

Mushtaq Hussain, Assistant Commissioner, Toba Tek Singh was examined

as Court Witness (CW-1); thereafter statements of both the appellants as well

as of Muhammad Akhtar were recorded under Section: 342 Cr.P.C. on

03.08.2011 wherein they refuted case of the prosecution against them; the

appellants did not opt to record their statements under Section: 340(2)

Criminal Appeal No.909/2012

Cr.P.C. however Muhammad Akhtar (now P.O.) produced some documents

in his defence. Thereafter, an application was moved on behalf of the

complainant for producing further evidence which was allowed

on 28.09.2011; Muhammad Akhtar accused became absent and was declared

as proclaimed offender; Statements of Abid Hussain Patwari as PW-12 and

Ali Gardawar as PW-13 were recorded; both the appellants were again

examined under Section: 342 Cr.P.C. on 20.03.2012 wherein they refuted the

allegations levelled against them; they did not opt to appear under Section:

340 (2) Cr.P.C. however documents Ex.DK and Ex.DL were produced in

defence on behalf of Arif Zaman (appellant No.1). Trial court after

conclusion of trial has convicted and sentenced the appellants as

mentioned above through impugned judgment dated: 10.05.2012.

Learned counsel for the appellants has submitted that convictions

recorded against and sentences awarded to the appellants through

impugned judgment are against the ‘law and facts’ and result of nonreading/misreading of evidence. Learned counsel for the appellants

finally prayed for acquittal of the appellants.

Conversely, learned Deputy Prosecutor General has supported the

impugned judgment and prayed for dismissal of the appeal.

Arguments heard. Record perused.

Case of the prosecution against Zulfiqar Ali (appellant No.1) is

that he and Muhammad Akhtar (accused now P.O.) executed Iqrar

Nama (agreement to sell/Ex.PW) with Zafar Yaseen (complainant/

PW-2) regarding two plots measuring 1-Kanal each while receiving

Rs.600,000/- as earnest money; subsequently, Muhammad Akhtar

accused in furtherance of said Iqrar Nama (agreement to sell/Ex.PW)

got entered two mutations bearing No(s).11223 dated: 12.02.2008

(Ex.PG) and 11256 dated: 25.02.2008 (Ex.PJ) in revenue record in

favour of one Muhammad Shafique vide oral statement qua sale on the

basis of Mutation No.9981 (Part Patwar/Ex.PE and Part Sarkar/

Ex.P.E/1) which was entered on the basis of Rapt No.571 (Ex.PF)

Criminal Appeal No.909/2012

So far as Iqrar Nama (Agreement to Sell/Ex.PW) is concerned, it

is relevant to mention here that original of the same was neither

produced nor got exhibited; so much so that it was not got compared

with copy of the same, which was exhibited in the Court; even any

material has not been brought on the record to show that original has

been destroyed or not available in order to justify production of

secondary evidence i.e. copy of the same and in this regard, cases of

“Mst. AKHTAR SULTANA Versus. Major Retd. MUZAFFAR

KHAN MALIK through his legal heirs and others” PLD 2021 SC

715 and “Mst. KHURSHID BEGUM and 6 others versus CHIRAGH

MUHAMMAD” 1995 SCMR 1237 can be advantageously referred;

Even any notary public who attested Iqrar Nama (Agreement to

Sell/Ex.PW) has not been produced as witness by the prosecution; apart

from this, Zulfiqar Ali (appellant No.2) merely posed himself as having

purchased the land and not expressly mentioned therein that he is full

owner of the land and same wording was used by the complainant

(PW-2) himself in the agreement (Ex.PX) which he executed with

aforementioned Muhammad Shafique and he (complainant) even

admitted said facts including the fact that Zulfiqar Ali (appellant No.2)

and Muhammad Akhtar (since P.O.) executed Iqrar Nama (Ex.PW) with

him on the basis of Iqrar Nama, which they made with Yar Muhammad

etc. regarding purchase of the land and relevant portion of his statement

in this regard is scanned below:

Criminal Appeal No.909/2012

Similarly, relevant portion of the statement of Abid Sagheer, Inspector

(PW-10) on the subject is also scanned as under: -

So, it has been admitted by the complainant (PW-2) that Iqrar Nama

(Agreement to sell/Ex.PW) was executed with him by Zulfiqar Ali

(appellant No.2) as well as Muhammad Akhtar (accused now P.O.) not

in the capacity of full owner of the land rather as purchaser of the land

and on the basis of agreement to sell, executed between Zulfiqar Ali,

Muhammad Akhtar and Yar Muhammad, etc.; it was duty of the

prosecution to prove that Zulfiqar Ali (appellant No.2) was not owner of

any land there but prosecution did not produce any evidence in this

regard. It is not the case of the prosecution that Zulfiqar Ali (appellant

No.2) while claiming himself as full owner of the land made statement to

Revenue Patwari regarding sale of the land to the complainant or any

other person on the asking of the complainant or any mutation of the

land was entered in the revenue record on the statement of Zulfiqar Ali

(appellant No.2) as owner; so much so, in the both impugned mutations

No(s) 11223 (Ex.PG) and 11256 (Ex.PJ), Zulfiqar Ali is not even

signatory in any capacity. Furthermore, as per Iqrar Nama (Agreement

to sell/Ex.PW), if Zulfiqar Ali (appellant No.2) fails to transfer land to

the complainant, then remedy is before Civil Court for specific

performance of the same or paying the double amount of the received

earnest money; in this regard, relevant portion of Iqrar Nama

(Agreement to sell/Ex.PW) is reproduced below: -

" ارگم

Criminal Appeal No.909/2012

Therefore, prosecution has been failed to prove the charge against

Zulfiqar Ali (appellant No.2) and there is no need to discuss defence

version qua him, hence, instant appeal to the extent of appellant No.2 is

allowed; resultantly, convictions recorded and sentences awarded to

appellant No.2 through impugned judgment are hereby set-aside; he is

acquitted of the charge; he is on bail after suspension of execution of his

sentence by this Court vide order dated: 20.06.2012 passed in Crl. Misc.

No.01/2012, his surety stands discharged from the liability of bail bonds.

Before discussing the case of Muhammad Arif Zaman (appellant

No.1), it is relevant to mention here that while deciding the criminal

case, approach of the Court must be inquisitorial instead of adversarial;

furthermore, in the case of forgery, cheating and particularly by the

accused who being official is also holder of the relevant record, it is not

easy to find out the direct evidence because such officials when become

cheater, they make planning, manage the atmosphere/material, try their

level best to conceal the relevant incriminating material and usually said

forgery comes to the knowledge of the affectee at belated stage and it is

more difficult to find out evidence at said stage due to passage of time;

therefore, in such offences, relevant material in the form of

documents/transactions can be given due weight while appreciating the

evidence in the light of maxim “Res ipsa loquitur” i.e. “the thing speaks

itself” instead of emphasizing the oral/direct evidence.

So far case of Muhammad Arif Zaman (appellant No.1) is

concerned, he was acting as revene Patwari of the relevant area Chak

No.328 “{Jeem Bay (ب ج(}”; he while acting as Patwari recorded Rapt

No.571 dated: 18.06.2006 (Ex.PF) in Roznamcha Waqiati, entered

mutation No.9981 (Ex.PE, Ex.PE/1) on 18.02.2006 regarding land in

favour of Muhammad Akhtar (accused since P.O.); he also entered

mutation No.11223 (Ex.PG=Ex.PN) dated: 12.02.2008 and mutation

No.11256 (Ex.PJ=Ex.PR) on the statement of Muhammad Akhtar

(accused since P.O.) in favour of one Muhammad Shafique s/o Sher

Muhammad; in this regard, statement of Ghulam Murtaza, Patwari

Criminal Appeal No.909/2012

(PW-4) and recovery memos (Ex.PC. Ex.PL and Ex.PS) can be safely

referred whereas relevant portion of Ex.PL is hereby scanned below: -

Muhammad Arif Zaman (appellant No.1) recorded aforementioned Rapt

No.571 dated: 18.06.2006 (Ex.PF) in favour of Muhammad Akhtar,

which is hereby scanned below: -

Perusal of said rapt reveals that it was incomplete, vague as well as

dubious because neither parentage of Muhammad Akhtar nor amount of

sale was mentioned in the same; similarly, measurement of the land

i.e. how much land has been sold and handing over of the possession has

also not been mentioned in the same. And with reference of said

incomplete rapt, mutation No.9981 was entered in the relevant register

on 18.02.2006 by appellant No.1 but it was never sanctioned/attested by

Criminal Appeal No.909/2012

any revenue officer and for the said reason same was of no value; in this

regard, case of “KARAM SHAH versus Mst. GHULAM FATIMA

and 3 others” (1988 CLC 1812) can be safely referred and relevant

portion of the same from its paragraph No.2 is hereby reproduced as

under: -

“An attested mutation may carry a rebuttable

presumption of truth but an unattested mutation entered simply

by a Patwari has no significance, importance or value in the

eyes of law”

(emphasis added)

Therefore, Muhammad Arif Zaman (appellant No.1) was having full

knowledge of incomplete/dubious feature/aspect of the rapt (Ex.PF)

being its author but he used the same and on the basis of said

incomplete/dubious rapt (Ex.PF), knowingly entered mutation No.9981

(Ex.PE, Ex.PE/1) on 18.02.2006 in favour of Muhammad Akhtar, which

remained unsanctioned/unattested and was of no value but even then, he

knowingly entered mutation bearing No(s).11223 (Ex.PG=Ex.PN) and

11256 (Ex.PJ=Ex.PR) on the statement of Muhammad Akhtar (accused,

now proclaimed offender) on the basis of said unsanctioned/unattested

mutation No.9981. Both mutation No(s).11223 and 11256 (mentioned

above) are subject matter of this case. Therefore, prosecution has

established that Muhammad Arif Zaman (appellant No.1) knowingly

committed forgery for the purpose of cheating, as well as cheating, used

forged document as genuine and also being public servant committed

“criminal misconduct”.

Now coming to the defence version of appellant No.1; relevant

portions of his answer to question No.10 during his statement recorded

under Section: 342 Cr.P.C. are hereby reproduced: -

“I am not part to the agreement Ex-PW dated:

05.03.2007 between the complainant and Muhammad Akhtar

and Zulfiqar accused. There is no evidence on record

regarding any payment; neither on 05.03.07 nor on its

implementation dated i.e. 01.08.2007 relating to my

intervention.

As regards mutation No.11223 and 11256 or their reports

No.785 and 841, the complainant is not concerned with any of

these documents. The alleged vendee Muhammad Shafique never

joined the enquiry investigation or trial proceedings of this case.

PW4 Ghulam Murtaza Patwari has clearly admitted that

Muhammad Akhtar accused was already owner of 2 Kanals 13

Marlas since 30.09.06 vide mutation No.10338, Ex-DA.”

Criminal Appeal No.909/2012

“The mutations No. 11223 and 11256 were further based

upon mutation No. 9981 dated 18.02.06 got entered by Tayyub

Maqbool in favour of Muhammad Akhtar, lying intact at that

time. A cancellation note, however, appears to have been forged

thereon by the prosecution through any hidden hand, hence not

blessed with the endorsement of any revenue officer”.

When aforementioned defence version of appellant No.1 has been

examined while keeping the same in juxta position with prosecution

version, then his version is of no avail whereas prosecution version is

cogent, convincing and based upon confidence inspiring evidence to his

extent.

Nutshell of the above discussion is that prosecution has proved its

case i.e. charge against Muhammad Arif Zaman (appellant No.1) beyond

shadow of doubt; he has been rightly convicted and sentenced by the

trial court; hence, aforementioned convictions recorded and sentences

awarded to appellant No.1 through impugned judgment under

Sections: 420, 468, 471 PPC Section: 5 (2) of the Prevention of

Corruption Act, 1947 and Section: 9 of the Criminal Law Amendment Act,

1958, are maintained in toto. Therefore, instant appeal to the extent of

Muhammad Arif Zaman (appellant No.1) is hereby dismissed. Order

dated: 20.06.2012 passed by this Court with respect to suspension of

execution of sentence of appellant No.1 is hereby recalled. Station House

Officer of police station concerned will proceed further in accordance with

law. Office is directed to transmit copy of this judgment to the trial court

for compliance in accordance with law.

(FAROOQ HAIDER)

JUDGE

APPROVED FOR REPORTING

(FAROOQ HAIDER)

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