UMAR DRAZ vs THE STATE

ORDER

' JAVED IQBAL, J.---This petition for leave to appeal is directed against the judgment dated 21-2- 2003 whereby criminal appeal preferred on behalf of petitioner has been dismissed and judgment dated 8-12-2000 passed by learned Special Judge, Anti-Corruption, Sargodha, whereby the petitioner was convicted and sentenced, as mentioned hereinbelow, has been kept intact:--

(i) Under section 419, P.P.C., they were sentenced to one year's R.I. With fine of Rs,2,000 each or in default to undergo 2 months' S.I.

(ii) Under sections 468 and 471, P.P.C. Read with section 5(2)/47 they were sentenced to undergo 12 years each with fine of Rs,2,000 each or in default to suffer further S.1. For 2 months. All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C."

2. Precisely stated the facts of the case as enumerated in the judgment impugned are that "all the appellants in connivance with each other produced Mst. Bharri one of the appellants before Umar Draz Patwari their co-accused instead of Mst. Rehmat Bibi the actual owner of the land and got entered a mutation in favour of Muhammad Azam, Muhammad Aslam and Muhammad Akram.

When the entry in mutation was produced before the Revenue Officer for attention he could not be satisfied with the identification of Mst. Rehmat who was being impersonated by Mst. Bharri. He postponed the attestation of mutation but on the next day all the alleged transferees and the person who identified the transferor did not appear before the Patwari, consequently the mutation was cancelled. The actual owner Mst. Rehmat Bibi filed an application in this regard. After thorough inquiry Police Station, Anti-Corruption, Sargodha challaned the seven accused/appellants under sections 419/468/471, P.P.C. Read with section 5(2)/47, P.C.A. Through F.I.R. No,7, dated 6-3-1997. On conclusion whereof the petitioner was convicted and sentenced as per details mentioned hereinabove.

3. Mr. Muhammad Kazam Khan, learned Advocate Supreme Court appeared on behalf of petitioner and contended that the petitioner could not have been convicted in absence of ally incriminating material which aspect of the matter has been ignored by the learned Trial and Appellate Courts which resulted in grave miscarriage of justice. It is urged emphatically that the petitioner had no intention to defraud Mst. Rehmat Bibi and no evidence worth the name has come on record in this context. It is next argued that the petitioner had never connived with the co-accused and prosecution has failed miserably to collect any incriminating material justifying the accusation of connivance or abetment. It is argued that it is beyond the physical competency of a Patwari of a Halqa to identify each and every landowner of his Halqa and therefore, the wrong identification of Mst. Rehmat Bibi can be attributed to the persons by whom she was identified as such and no responsibility can be attributed to the petitioner. It is contended that the parties are related inter se and the compromise executed subsequently between the parties is demonstrative of the fact that no criminal liability could be fixed against the petitioner as the controversy revolved around the monetary dispute between the parties. It is pointed out that the provisions as contained in sections 468 and 471, P.P.C. Have been misconstrued and could not have been invoked in the absence of any forged document.

4. Mian Abdul Qayyum Anjum, learned Advocate Supreme Court appeared on behalf of State and vehemently controverted the viewpoint as portrayed by learned Advocate Supreme Court for petitioner at the bar and contended that the alleged offences could not have been committed without any ktive connivance of the petitioner being Patwari of the Halqa and moreso, that the execution of compromise would have no substantial bearing on the merits of the case. It is also urged that reappraisal of evidence cannot be made by this Court while exercising jurisdiction under Article 185(3) of the Constitution of Islamic Republic of Pakistan.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of record of the case and perused the judgment impugned. We are not persuaded to agree with the prime contention of Mian Abdul Qayyum Anjum, learned Advocate Supreme Court who appeared on behalf of State that reappraisal of evidence cannot be made for the simple reason that this Court, while performing as a Court of ultimate jurisdiction has certainly power to do complete justice and re-examine the evidence to see whether all chances of false implication of accused had been excluded and further can go into the question of sufficiency of evidence for conviction where the case rests on ocular evidence which does not appear to be convincing or worthy of credence. In this regard we are fortified by the dictum laid down in cases Riaz Haider Zaidi v. State PLD 1965 SC 179 and Rehmat v. State PLD 1959 SC (Pak.)

109. There is no cavil with the proposition that leave may be granted to see as to whether correct principles concerning administration of justice had been applied by the Appellate Court for the appreciation of evidence or in case of failure to examine the, case from a correct angle. In this regard reference can be made to Muhammad Ashraf v. The State 1986 SCM R 1175; Daud v. State 1985 SCM R 1923; Nadeem- ul-Haq Khan v. State 1985 SCMR 510 and Abdus Sattar v. Muhammad Anwar PLD 1974 SC 266.

6. Be as it may the contentions as raised on behalf of petitionerneed consideration. We are, therefore, inclined to grant leave by converting this petition into appeal which may be fixed at some early date. The petitioner shall be released forthwith in case got registered against him vide F.I.R. No,7, dated 6-3-1997, Police Station, A.C.B. District Sargodha under sections 419/420, 468/471 read with section 5/2/47 of P.C.A. On furnishing surety in the sum of Rs,50,000 (rupees fifty thousand only) and P.R. Of the same amount to the satisfaction of the Judicial Magistrate, Sargodha.