BAGH ALI Versus STATE
The four petitioners in this case, along with one Allah Dad who was acquitted by the appellate Court, were convicted under sections 423 and 468 of the Pakistan Penal Code. They were sentenced to undergo two years' and four years' R. I. on the respective charges. Mst. Khatoon and Bahadur petitioners and Allah Dad, the acquitted accused, were also convicted on a separate count under section 468, P. P. C. and were sentenced to undergo four years' R. I. each. On appeal, Mr. Rasul Bakhsh Leghari, the learned Additional Sessions Judge, Multan, acquitted Allah Dad but maintained the conviction and sentences of the petitioners on all the counts.
2. The allegations on which the conviction of the petitioners is based are these: One Shah Muhammad owned 107 kanals 7 marlas of land in village Kanun Tehsil Shujah Abad, District Multan. He had no issue and he, therefore, transferred the. entire land to his wife Mst. Qaim Khatoon by a mutation. The case of the prosecution is that Babadur petitioner posed as Shah Muhammad and his wife Mst. Khatoon posed as Mst. Qaim Khatoon and a registered deed (copy Exh. P. D: on the record) and an affidavit. Exh. P. A. purporting to have been executed on 3-7-63 on behalf of Mst. Qaim Khatoon in favour of Shah Muhammad, disposing of the said land by sale for a consideration of Rs. 3,000 were executed. Bagh Ali and Muhammad Yaqub petitioners were the marginal witnesses of the sale-deed and Allah Dad had identified Mst. Khatoon petitioner as Mst. Qaim Khatoon, wife of Shah Muhammad at the time of the execution of the registered deed and also of the affidavit. Shah Muhammad died on 4th of July 1964, and his widow Mst. Qaim Khatoon shifted from village Kanun to Kabirwala. Some time after the- death of her husband, she came to get batai from the tenants but was told by Bahadur petitioner that the land stood transferred to him. Mst. Qaim Khatoon then approached Muhammad Siddiq (P. W. 2) and Imam Din (P. W. 3) who belong to Chak No. 32 in Tehsil Khanewal. According to the prosecution, they are related to Bahadur petitioner. These two persons came to village Kanun and made queries from Bahadur, who made confession before them that he had manipulated the registration of the land in dispute in the name of Shah Muhammad and had produced Mst. Khatoon, his wife, as Mst. Qaim Khatoon before the Registrar. He, however, promised to return the land to the lady. This was not done and a complaint was filed on 21st of January 1965, under sections 423, 420 and 468 read with sec tion 34 of the Pakistan Penal Code.
3. At the trial, Mst. Qaim Khatoon appeared to state that she had not effected any registered deed in favour of Shah Muhammad. She also stated that she and approached Imam Din, Muhammad Siddiq and Ismail, the relatives of Bahadur, and before them Bahadur confessed that he had committed a mistake and promised to return the land. This promise was not kept later on. On a question having been put that she under took to return this land to her husband in case he was restored to health, and denied this suggestion. Muhammad Siddiq (P. W. 2) and Imam Din (P. W: 3) supported the story of the prosecution in so far as it related to extra judicial confession. They stated that they went to village Kanun on the complaint of Mst. Qaim Khatoon and Bahadur made a confession. Imam Din further stated that Bahadur had confessed that he had produced his wife in place of Mst. Qaim Khatoon. Nazar Husain Reader to the Naib-Tehsildar who was the registration clerk, appeared and stated that the registered deed was presented before the Tehsildar who " had also attested the affidavit Exh. P. A. During cross-examination, he stated that the affidavit had been produced by Mst: Qaim Khatoon but he was not able to say whether Mst. Qasim Khatoon was the same woman who was present in Court or it was some other woman. Abdur Rahim petition-writer is the scribe of the sale-deed as well as the affidavit Exh. P. A. He categorically stated that Mst. Qaim Khatoon who was present in Court was not the woman who had thumb-marked the register at the time of the execution of the documents. That woman had, however, represented that she was Mst. Qaim Khatoon. Bakhoo (P. W. 6) was produced to prove the earlier transfer of property by Shah Muhammad in the name of his wife. Ch. Abdul Aziz D. S: P. (P. W. 7) is the Handwriting Expert and he gave an opinion that the thumb mark on Exh. P. A. in the name of Mst. Qaim Khatoon was actually that of the right hand thumb of Mst. Khatoon petitioner: He was not cross-examined on this point.
4. At the trial, Mst. Khatoon and Bahadur denied the allegations. Bahadur also denied that he made a confession before Siddiq and others. Muhammad Yaqub petitioner also denied all the allegations and stated that he was involved because he was the real uncle of Bahadur petitioner. Bagh Ali petitioner was stated to be a nephew of Bahadur by Mst. Qaim Khatoon but no question was put to him with regard to this relationship. He stated that actually Shah Muhammad had produced him before the Sub-Registrar and that he did not know that the woman who represented herself as Mst. Qaim Khatoon, was not Qaim Khatoon. Allah Dad stated that Bahadur, Bagh -Ali and Yaqub had compelled him to identify the woman. They had told him that this was a matter relating to their family. He further stated, that he did not know that Mst. Khatoon was playing a trick. The petitioners also produced defence evidence. The evidence of Ghulam Muhammad (D. W. 1) is to the effect that Shah Muhammad had taken the signatures of Bagh Ali at Shuja Abad on some papers after representing to him that he wanted to file a suit about batai. Ghulam Haider (D. W. 2) also corroborated this witness. Jan Muhammad (D. W.. 3) who according to Ghulam Haider was accompanying them, stated a different story. According to him, it was Bahadur petitioner who had obtained the signatures of. Bagh Ali by representing to him that he wanted to file a civil suit. This witness further stated that he had not seen Yaqub and Allah Dad at the spot. Wahid Bakhsh (D. W. 4) and Gut Muhammad (D. W. 5) were produced to support the defence plea that Mst. Qaim Khatoon had undertaken to return the property to her husband in case he restored to health. It was the case of these witnesses that Shah Muhammad had regained his health and it was after that that Mst. Qaim Khatoon had returned the property.
5. The learned counsel for' the petitioners, Mr. M. A. Salim, has submitted that there was long delay in filing the complaint. The two documents in dispute were executed on 3rd of July 1963, but the complaint was filed on 21st of January 1965, although Shah Muhammad had died on 4th of July 1964. It is further submitted by the learned counsel that there is no evidence, worth the name, against Bahadur, Yaqub and Bagh Ali. His objection is that it has not been proved by any witness of the prosecution that Bahadur took any part in the execution of the sale-deed., It is further submitted by him that the thumb-mark on Exh. P. A. which purported to be that of Shah Muhammad and according to the prosecution was that of Bahadur, was not examined by the Finger Print Expert and there is no opinion that this is not the thumb-mark of Shah Muhammad. There learned counsel submits that the contention of the defence that the transfer of property was made in favour of Shah Muhammad may well be true. As for Yaqub, it is pointed out that none of the prosecution witnesses has named him. When examined under section 342, Cr. P. C. he denied all the allegations including the fact of his putting his thumb-mark on the registered deed. Bagh Ali stated that he had appeared before the Sub-Registrar and had thumb-marked the registered deed but his case was that it was at the instance of Shah Muhammad himself that he had done it and he did not know that the woman appearing before the Sub Registrar was not Mst. Qaim Khatoon, the wife of Shah Muhammad. It is stated on these facts that no offence has been made out at least agaiust Yaqub, Bahadur and Bagh Ali.
6. The learned counsel for the State, Mr. Nazar Muhammad Mufti, states that there is no reason to discard the extra-judicial confession made by Bahadur before Imam Din and Muhammad Siddiq. Both of them are stated to be the relatives of Bahadur. The defence did not question this assertion. of relationship. No enmity has been suggested between these two witnesses and Bahadur. The documents it is submitted, were executed in the interest of Bahadur and although the prosecution has unfor tunately not produced any evidence regarding his participation, a strong presumption arises that without his participation the impugned documents could not have been executed. He further points out that according to Jan. Muhammad (D. W. 3) that it was Bahadur who had obtained the signatures of Bagh Ali.
7. In my view, the conviction of the petitioners except that of Bahadar for fabricating and forging the registered deed cannot stand. There is no evidence that any of them participated in its fabrication. The original of the sale-deed was not produced at the trial perhaps because it may be in possession of the accused them selves. The thumb-marks of the executant, however, could be proved from the register of the petition-writer or from the permanent record of the Registrar. The petition-writer and the Sub-Registrar's clerk did not state that any of the petitioner were present at the time of the execution or registration of the sale-deed. Mst. Khatoon and Yaqub both denied that they ever thumb-marked the sale-deed. The case of Bagh Ali was that he had thumb-marked the sale-deed and the asking of Shah Muhammad the late husband of Mst. Qaim Khatoon. The Courts below dealt with this aspect of the case in a cursory manner. The learned Magistrate in para. 11 of his judgment observed as under: -
"Similarly the sale-deed was also forged with the same purpose and since this was done fraudulently and signed and thumb-marked as such by all the accused persons, 'the common interest being to get the transfer of the land of 107 kanals 7 marlas back in the name of Shah Muhammad."
Again, the observations of Mr. Rasul Bakhsh Leghari, the learned Additional Sessions Judge who decided the appeal on this aspect of the case were as under: -
"Affidavit Exh. P. A. bears the thumb-mark of Mst. Khatoon appellant. She had thumb-marked the same and the original sale-deed for Mst. Qairn Khatoon and thus represented herself as Mst. Qaim Khatoon. These thumb-marks have been proved to be of this appellant through the evidence of Ch. Abdul Aziz P. W. 7."
I may observe that there is no evidence to sustain the above statements of fact made by the Courts below so far as the sale-deed is concerned. The learned Additional Sessions Judge clearly fell into an error of fact when he observed that it had been proved that Mst. Khatoon petitioner had affixed her thumb mark on the original sale-deed. The original sale-deed was never produced at the trial nor does the evidence of Finger Print Expert advert to that. The gist of the evidence of the Finger Print Expert was that the thumb-impression on Exh. P. A., the affidavit, was that of Mst. Khatoon petitioner and not that of Mst. Qaim Khatoon complainant. I; therefore, set aside the conviction of Mst. Khatoon, Yaqub and Bagh Ali under section 423/468, P. P. C. and acquit them of this charge.
8. Bahadur had confessed before Imam Din and Muhammad Siddiq P. Ws. who are his relatives, that he was responsible for the execution of the sale-deed and had produced his wife in place of Mst. Qaim Khatoon at the time of the registration. The two Courts below have relied on this extra-judicial confession and I see no reason to differ with them on this aspect of the case. The two witnesses are related to Bahadur. No questions were put to them to show that they were to any way inimically disposed against him. Bahadur had the strongest motive to have the property trans ferred back in the name of his brother. He was the sole bene ficiary of the transaction. Allah Dad his co-accused had stated that he had been pressed by Bahadur. Bagh Ali and Yaqub to identify the parties and to sigh the affidavit Exh. P. A. I, therefore, find that the conviction of Bahadur under sections 423 and 468, P. P. C. has to be maintained. I order accordingly the sentences awarded under these sections are not excessive in the circumstances of the case and are, hereby, maintained.
9. The conviction of Bahadur on the second count under section 468, P. P. C. for fabrication of affidavit Exh. P. A., however, cannot be maintained. No evidence was produced by the prosecution to prove that he participated in the drawing up of this affidavit. The thumb-impression which purported to be that of Shah Muhammad was not got examined by the prosecution from the Finger Print Expert. It, therefore, cannot be said that thumb-impression which purports to be that of Shah Muhammad on Exh. P. A. is that of Bahadur. I, therefore, set aside the conviction and sentence of Bahadur under section 468, P. P. C. on the second count.
10. So far as the conviction of Mst. Khatoon on the second count is concerned, it has to be maintained. The thumb impression on Exh. P. A. has been proved to be that of Mst. Khatoon. This piece of evidence clearly connects her with the commission of this offence. I, therefore, hold that she was rightly convicted under section 468, P. P. C. for forging an affidavit in the name of Mst. Qaim Khatoon. I, however, find that the sentence awarded to her is excessive. She is a woman and was certainly under the thumb of Bahadur who is her husband. She became an instrument in his hands. I, therefore, reduce her sentence to one year rigorous imprisonment. She is on bail. She shall surrender to her bail bonds. This revision petition is decided accordingly.
Order accordingly.