ZIAUDDIN PATHAN Versus State
MUHAMMAD SALEEM JESSAR, J.--- At the very outset, learned advocates appearing for the appellant in Criminal Appeal No.127/2011 submitted that appellant Ziauddin Pathan has expired, therefore, Criminal Appeal No.127/2011 has become infructuous and, therefore, they do not wish to press the same, hence the same may be disposed of accordingly. The request made by the learned counsel is not opposed by learned D.P.G, Sindh. Order accordingly. Since the appellant was on bail, therefore, surety furnished by him shall also be deemed to be discharged.
2. As far as Criminal Revision Application No.117 of 2011 is concerned, learned DPG, Sindh appearing for the State invited my attention to the Order passed on 30.10.2018 which reads as under:
"Case history reflects that applicant in Criminal Revision Application No.117 of 2011 has failed to cause her appearance; however, as an indulgence and with last chance, adjourned to 4th December 2018. In case of non-appearance, instant revision application would be dismissed in non-prosecution."
3. Same was the position on 02.10.2019 when the matter was heard. This Revision Application was filed for enhancement of the sentence awarded to the accused. In view of above Criminal Revision Application No. 117/2011 was dismissed in default along with pending applications.
4. Now remains only Criminal Appeal No.143 of 2011 to be decided. Through this Criminal Appeal, applicant Muhammad Zaman has challenged Judgment dated 07.03.2011, penned down by Special Judge, Anti-Corruption (Provincial), Karachi in Special Case No.06 of 2007 (re: the State v. Ziauddin Pathan and others), being outcome of FIR No.59/2006, registered at Police Station ACE Karachi, under sections 420/466/469/471/109/34, P.P.C. read with section 5(2) of Act-II, 1947, whereby he convicted applicant Ziauddin Patha (since deceased) and present appellant Muhammad Zaman Khan for offences punishable under the aforesaid sections and sentenced them to suffer R.I. for two years and to pay fine of Rs.20,000/- (Rupees Twenty Thousand only) and in case of default to suffer S.I. for three months more.
5. Concisely, the facts of the prosecution case, as per FIR No.59/2006, are that the case was registered as a result of enquiry into Complaint No.166/2006 of ACE Karachi, conducted on the complaint of Mst. Almas Akbar Ali, alleging therein that her father Akbar Ali aged about 76 years owned a property bearing plot No. LY 12/25, Lea Market Karachi in the year 1968 which was in the shape of constructed building having a shop on ground floor. It was further alleged that her father used to run business in the said shop and about 4/5 years back he had to close said shop due to his poor health condition. During this period one Muhammad Zaman Khan resident of Saifee Lane, in collusion with Excise and Taxation Department, A-Division Karachi got issued PT-1 of her father's shop and entered into the shop after breaking the lock. Now he is showing himself as an owner of the shop. During enquiry the complainant and her father Akbar Ali attended the office of concerned officer and produced the title documents of above plot i.e. shop showing the ownership of shop while alleged Muhammad Zaman also attended the said office but he could not produce any title document. The record of Excise and Taxation Department, A-Division was secured which revealed that in the year 2001 alleged Muhammad Zaman Khan in the office of Ziauddin Pathan Inspector Excise and Taxation Department A-Division, without any title document submitted a survey form showing himself to be the owner of said shop. Ziauddin Pathan in the capacity of Inspector Excise and Taxation Department A-Division having posted at Lea Market Karachi without confirming the title of shop issued PT-1 No. AK5-1S-4/A, Serial No.861 dated 30.06.2001, in favour of Muhammad Zaman Khan, while original number of the building was PT-1, No.AK5-1S-4 at Serial No. 2 dated 25.01.1972. Ziauddin Pathan in collusion with private person Muhammad Zaman Khan malafidely issued him PT-1 for some ulterior motive by maintaining incorrect record of Plot No. LY-12/25. As a result of this, accused Muhammad Zaman Khan on the basis of this fake PT-1 took illegal possession of complainant's shop. Hence after approval of competent authority (ACC-II) conveyed vide Deputy Director ACE Karachi No.ACK/2006/9707 dated 11/12/2006 case under sections 420/466/468/471/109, P.P.C. read with section 5(2), Act-II 1947 was registered against Inspector Ziauddin Pathan of Excise and Taxation Department, Muhammad Zaman Khan private person and others.
6. A formal charge was framed against the accused persons on 28.02.2008 vide Ex:2, whereas Pleas of the accused persons were recorded vide Ex:3 and 4 in which they pleaded not guilty and claimed trial.
7. In order to prove its case, prosecution examined complainant, PW No.1 Almas Akbar Ali at Ex:6, who produced photocopy of PT-1 issued in the name of his father Akbar Ali in the year 1972-73 as Ex:6/1, Extract of City Surveyor as Ex:6/2, photocopy of conveyance deed in the name of his grand-father namely "Aloo" as Ex:6/3, report of Nazim as Ex:6/4, photocopy of order of Civil Suit as Ex:6/5, photocopy of PT-1, subsequently issued in the name of accused Muhammad Zaman showing number of plot with simple addition of word (A) as Ex:6/6, application to Director ACE as Ex:6/7, FIR as Ex:6/8. Prosecution also examined PW No.2 Akbar Ali at Ex:7, who produced PT-1 form as Ex:7/1. Prosecution moved application for calling record vide Ex:8. PW No.3 Muhammad Haneef was examined at Ex:9, who produced copy of property register at Ex:9/1 and Map of Survey Sheet No.LY-12 Liyari Quarters at Ex:9/2. Prosecution also examined PW No.4 Muhammad Yousuf at Ex:10, who produced certified copy of PT-1 as Ex:10/1, another copy certified copy of PT-1 as Ex:10/2, inspection report along with site map and attested copy of PT-1 register as Ex:10/3 to 10/5. Prosecution lastly examined PW No.5 Ch. Hameeduallah at Ex:11, who produced letter of Deputy District Officer Property Tax "A" Division to Deputy Director ACE Karachi at Ex:11/1, letter authorizing him to investigate into this case as Ex:11/2, another letter seeking permission from this Court as Ex:11/3, letter dated 29-11-2006 of DD ACE permitting him to register the case as Ex:11/4, report prepared by accused Zia-u-Din for issuance of PT-1 as Ex:11/5 and statement of DDO Shabuddin Khatri, Property Tax, Excise Department as Ex:11/6. Thereafter, prosecution closed its side vide Ex.12.
8. Statement of accused Ziauddin was recorded under section 342, Cr.P.C. vide Ex:13. The accused denied the prosecution allegations and stated that official witnesses namely, Muhammad Hanif and Muhammad Yousuf have deposed in his favour and against the complainant, whereas, complainant and her father have deposed falsely as they were interested witnesses. However, he did not produce any witness in his defence. He only stated, "I want to produce two documents viz. letter from Sec. Excise and Taxation dated 29-09-2000 (certified copy), copy of Departmental Enquiry by DDO, Property Tax as Ex:13/1 and 13/2. It was notified by the government that all the un-assessed lands should be surveyed for revenue generating purposes and if any officer fails, he will be charge sheeted and he in compliance with such directives, simply supplied the data form to the co-accused. He claimed to be innocent.
9. Statement of accused Muhammad Zaman was recorded under section 342, Cr.P.C. vide Ex:14, who denied the prosecution allegations and stated that none of PWs had deposed against him and that he is innocent. He also examined himself on oath under section 340(2), Cr.P.C. vide Ex 15.
10. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the accused as stated above. Against the said judgment, appellant Muhammad Zaman Khan has preferred instant Criminal Appeal.
11. Heard appellant Muhammad Zaman, who was present in person on bail. He submitted that he is innocent and has been falsely implicated in the instant case. According to him, he has wrongly been convicted by the trial Court and prayed for setting aside the impugned judgment of conviction and for his acquittal.
12. Learned D.P.G appearing for the State submitted that Penal Sections mentioned in the FIR do not apply to the case of appellant Muhammad Zaman and the same were strictly applicable to the case of Muhammad Ziauddin, who is no more in the world and has expired. She, therefore, extended her no objection for allowing the appeal.
13. I have considered the submissions made by the appellant in person as well as the contentions of learned D.P.G. appearing for the State and perused the material available on the record.
14. From perusal of the material available on record it seems that the claim of complainant, Mst. Almas and his father Akbar Ali was in respect of Plot No.LY-12/25, Lea Market, Lyari Quarters, Karachi, whereas the stand taken by accused Muhammad Zaman in his statement on oath is that he has no concern with the property of the complainant and that his shop is situated on a different plot. According to him, he was running his shop since last 30 years on plot No. LKY-12/25. He further deposed that civil litigation was pending and about 7/8 years back his shop was sealed by Court during such litigation but subsequently the same was de-sealed on the orders of District and Sessions Judge, Karachi South. The complainant in her cross-examination also admitted that the property in dispute was sealed on the request of owner which was later on de-sealed on the direction of District and Sessions Judge, Karachi South and possession thereof was delivered/handed over to accused, Muhammad Zaman Khan. She further admitted that such order was not challenged.
15. P.W. Akbar Ali, father of the complainant, in his cross-examination admitted that the extract of property register shows the area of the property in question to be 43 sq. yards, however he voluntarily added that the area of 43 sq. yards is showing only the constructed portion and there is an open space as well but he admitted that he could not produce any extract or other document showing the excess area in his name. He also admitted that he never applied to any authority in respect of the said open space. He also showed during his cross-examination copy of PT-1 dated 30.06.2001 in respect of 44 sq. yards in the name of accused Muhammad Zaman and admitted that he launched the prosecution against accused Zaman Khan and Zainuddin on the basis of said document. He; however, admitted that he did not file any appeal before Director Excise and Taxation. He further admitted that the litigation between him and accused Muhammad Zaman went upto Criminal Revision No.01/2003 before District and Sessions Judge, Karachi South which was decided in favour of Zaman Khan.
16. P.W.3 Muhammad Haneef, Junior Clerk posted in the office of concerned Mukhtiarkar, in his cross-examination admitted, "It is correct that as per our record Akbar Ali son of Aloo is only the owner of land measuring 43 sq. yards. It is correct that in column No.9 of Ex.9/1 also confirms the area of plot as 43 sq. yards." Ex. 9/1 referred to above, is the Property Register wherein also the total area allegedly owned/ occupied by complainant's father was shown to be 43 sq. yards.
17. P.W.4 Muhammad Yousuf, Inspector Excise and Taxation Department, in his cross-examination made a specific admission to the effect, "It is correct that PT-1 issued in the name of Akbar Ali and PT-1 issued in the name of Zaman as per our record are 2 different properties."
18. P.W.5 Ch. Hameedullah, Sub-Inspector ACE, Karachi, in his cross-examination admitted, "It is correct that the leased area is measuring as 43 sq. yards......It is correct that according to revenue record the area of complainant plot is 43 sq. yards.....It is correct that PT-1 of Akbar Ali is still intact in record..."
19. From above, it is clear that the evidence of official witnesses support the plea of the accused Muhammad Zaman that the property owned/occupied by complainant's father and that occupied by him (accused) are two different properties. It has also come in evidence that complainant's father owned/occupied a total area of 43 sq. yards and that PT-1 issued in his name is still intact in the concerned record. Besides, none of the witnesses has deposed in clear terms that they themselves saw accused Muhammad Zaman while forging and/or manipulating the PT-1. Even in the general survey it was established that Property Unite No.AK 5-IS-4 was assessed in the name of complainant's father Akbar Ali and same was not disturbed during the survey. It was also established that Property Unite No.AK-5-IS-4A, was a separate property being ACC shop which was in the name of appellant Muhammad Zaman. It is also note worthy that neither the E.T.O., who was, in fact, issuing authority of the PT-1, nor any of the staff members working under his subordination, was associated as a witness in the case; even I.O. did not bother to record their statements during the investigation of the case. It has also been admitted by complainant, Mst. Almas as well as his father Akbar Ali, that the property in dispute was sealed on the request of owner which was later on de-sealed on the direction of District and Sessions Judge, Karachi South and possession thereof was delivered/ handed over to accused, Muhammad Zaman Khan. Complainant also admitted that the said order of District and Sessions Judge, Karachi South was not challenged before the higher forum.
20. Yet there is another significant point which is also fatal to the prosecution case. As per contents of the FIR the alleged incident took place in the year 2001 whereas FIR was got registered on 20.12.2006 i.e. after a delay of more than five years and surprisingly enough against relevant column in the FIR it is mentioned, "No delay". No plausible explanation/justification has been furnished by the prosecution for such delay. The complainant Mst. Almas in his evidence deposed to the effect, "We had complained to the Nazim of the area against the encroachment over our shop by accused Zaman Khan, who issued such report. I produce report of Nazim as Ex.6/4." Now from perusal of said report of Nazim Ex./6/4 it reveals that said report was issued on 16th April. 2002 wherein, inter alia, it has been mentioned, "Mr. Akbar Ali submitted an application before UC-5, Baghdadi Lyari Town, on 18th February 2002, stating therein that he is the owner of plot No. LY-12/25 (CDC enclosed) and regarding KMC lease went to his plot with the KMC Officer, were found a person, who is neither my tenant nor possess original documents of said plot but in physical possession of plot No.LY-12/25." From this it is crystal clear that alleged offence came in knowledge of complainant's father prior to 16th April, 2002 despite that FIR was lodged in the year 2006. This also creates doubt with regard to involvement of accused in the commission of alleged offence.
21. In the case reported as Ayub Masih v. The State (PLD 2002 SC 1048) Honourable Supreme Court held as under:-
"The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."
22. In view of aforesaid unexplained delay occurred in the registration of FIR, possibility of deliberation and false implication of the accused could not be overruled.
23. As stated above, learned D.P.G appearing for the State also extended her no objection for allowing the appeal as, according to her, the Penal Sections mentioned in the FIR do not apply to the case of appellant Muhammad Zaman and same were strictly applicable to the case of Muhammad Ziauddin, who has expired.
24. In this view of the matter, it cannot be said that the prosecution has proved its case against accused/appellant Muhammad Zaman beyond shadow of reasonable doubt.
25. It has been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt and any doubt arising in prosecution case must be resolved in favour of the accused. In the case reported as Wazir Muhammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:
"In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
26. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:
"The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal. The prosecution cannot fall back on the plea of an accused to prove its case.......Before, the case is established against the accused by prosecution, the question of burden of proof on the accused to establish his plea in defence does not arise."
27. Keeping in view aforesaid admissions made by prosecution witnesses, so also the infirmities and lacunas in prosecution case, as stated above, it can safely be held that prosecution has not succeeded in proving its case against the accused/applicant beyond shadow of reasonable doubt. Needless to emphasize well settled principle of law that the accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession. In present case, there are various contradictions in evidence of prosecution witnesses which create doubts in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creates doubt in the prosecution story. In the case reported as Tariq Pervaiz v. The State 1995 SCMR 1345 the Honourable Supreme Court held as under:-
"The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
29. For the foregoing reasons, vide a short order passed on 02.10.2019 Criminal Appeal No. S-143/2011 was allowed; impugned Judgment dated 07.03.2011 penned down by learned Special Judge, Anti-Corruption (Provincial) Karachi in Special Case No. 06/2007 (re-the State v. Ziauddin Pathan and others), being outcome of Crime No. 59/2006 registered at P.S ACE, Karachi, under sections 420, 466, 468, 471, 109, 34, P.P.C. read with section 5(2), Act-II of Prevention of Corruption Act, 1947, was set-aside to the extent of sentence and conviction of appellant Muhammad Zaman only. Consequently, appellant Muhammad Zaman was acquitted from all the charges. He was on bail therefore, surety furnished by him was also discharged.
30. Above are the reasons for my said short order.
SA/Z-30/Sindh Appeal allowed.