IMRAN UL HAQ Versus State
MUHAMMAD SALEEM JESSAR, J.--- By this single judgment I intend to dispose of above said three connected Criminal Appeals as all the appeals have been filed against the consolidated judgment dated 20.04.2015, passed by learned Special Judge, Anti-Corruption [Provincial], Karachi, in Special Case No. 72 of 2007, (Re-The State v. Dev Parkash and others), emanating from Crime No. 53 of 2007 of ACE Karachi, for offences punishable under sections 217, 218, 420, 467, 468, 161 and 34, P.P.C. read with Section 5(2) of Prevention of Corruption Act, 1947 (Act II of 1947), whereby the trial Court convicted appellants Dev Parkash son of Kishan Lal, Imran-ul-Haq, Afaq Hussain son of Manzoor Hussain and Mohsin Hussain son of Mansoor Hussain and sentenced them to suffer R.I. for five [05] years each. Absconding accused Mst. Hameeda Begum was also convicted and the case against her was directed to be kept on dormant file, to be opened when she would be produced before the trial Court.
2. Briefly the facts of the prosecution case as narrated in the FIR are that on 08.06.2007 an enquiry was conducted by ACC-II on complaint No. 156 of 2007 forwarded by one Mst. Shaista Zareen daughter of Khajista Bukht stating therein that her father namely Mirza Khajista Bukht who was living in London had purchased a House bearing No. 1792, Federal 'B'. Area, Karachi for the purpose of using the same as and when he would visit Pakistan. Mirza Khajista Bukht died at the age of 83 years in London. The deceased had two wives; from the first wife there were two children namely, Waseem and complainant Shaista Zareen, whereas from his second wife namely Hameeda Begum [divorcee] five children were born. Mst. Hameeda Begum arrived at Karachi in April, 2007. She with mala fide intention and in connivance with Sub-Registrar, Gulberg Town namely accused Dev Parkash, Peshkar Imran-ul-Haq and other private persons, executed a bogus Sub-Power of Attorney in the name of Afaq Hussain son of Manzoor Hussain vide Registration No.388, Book No. IV dated 14.07.2007, on the basis of a General Power of Attorney forcibly obtained by Hameeda Begum and others from deceased Khajista Bukht, father of the complainant, although he had already died in February, 2007. On the basis of such invalid and illegal Sub-Power of Attorney, a Sale Deed was executed in the name of Mohsin Hussain son of Mansoor Hussain on 14.07.2007. When the complainant Mst. Shaista Zareen came to know about such fraudulent acts, she moved an application on 13.04.2007 against the official accused persons in connivance with private persons for indulging in the acts of corruption, so also she got published objections in 'Daily Jasarat' dated 16.04.2007 informing thereby general public about the said bogus Sub Power of Attorney and the aforesaid fraudulent deal, hence instant case was registered against the accused persons.
3. After usual investigation, the present appellants along with absconding accused Mst. Hameeda Begum were sent up to face trial vide separate challans.
4. After completing all legal requirements, a formal charge was farmed against appellants Dev Parkash, Imran-ul-Haq, Afaq Hussain and Mohsin Hussain vide Ex.11; to which they did not plead guilty and claimed trial vide their Pleas Ex.12, 13, 14 and 15 respectively.
5. In order to prove its case, the prosecution examined: PW-1 Shaista Zareen at Ex.17, who. produced copy of death certificate at Ex.17, photocopy of sale deed as Ex.17/2, photocopies of applications moved to the Sub-Registrar, Gulberg Town as Ex.173 to Ex.17/5 respectively, copy of notice published in newspaper as Ex.17/6, application for registration of case written to Deputy Director ACE as Ex.-17/7, photocopy of application addressed to High Commission of Pakistan as Ex.17/8 and photocopies of letters along with original envelopes dated 08.05.2007 and 21.05.2007 dated 19.04.2007 as Ex.17/9 to Ex.17/11. PW-02 Arif Fareed Tehmori was examined at Ex.18, who produced two NADRA application forms, showing the name of her mother as Exs.18/ and 18/2, photocopy of travel history of Azeem Bukht and Khajista Bukht and personal identification obtained from F.I.A. as Ex.18/3 and Ex.18/4, publication dated 16.04.2007 as Ex.18/5, letter from Sub-Registrar and its reply as Ex.18/6 and Ex. 18/7, true certified copy of letter as Ex.18/8, copy of sale deed as Ex.18/9, receipt issued by Sub-Registrar Dev Parkash as Ex.18/10. PW-03 Tauheed Ahmed Khan was examined at Ex.19, who produced copy of Power of Attorney dated 27.01.2007 as Ex.19/1, whereas PW-04 Syed Jameel Nasir Rizvi was examined at Ex.20, who produced notice from ACE Karachi and attested copy of said Power of Attorney along with annexure as Ex.20/1 and Ex.20/2; Sub-Power of attorney dated 07.04.2004 executed by Mst. Hameeda Begum Bukht in favour of Afaq Hussain, registered by Sub-Registrar Dev Parkash and identified by Z.A Siddiqui, Advocate as Ex.20/03. PW-05 Mirza Aamir Baig was examined at Ex.21, while PW-06 Muhammad Atif Yaseen was examined at Ex.22. PW-07 Abid Hussain was examined at Ex.23, who produced affidavit and statement as Ex.23/1 and photocopy of his CNIC at Ex.23/2. Accused Mst. Hameeda Begun appeared and obtained bail. Thereafter, the copies were supplied to accused Mst. Hameeda Begum in compliance of section 241-A Cr.P.C. as Ex.24 and the matter was fixed for amended charge but accused Mst. Hameeda Begum did not appear before the Court, therefore, on 13.06.2012 her bail was cancelled and surety was forfeited. The Court examined CW Mushtaq Ahmed at Ex.25, who produced un-served summons of PW Rauf Khan along with his report as Exs.25/1 and 25/2. PW-08 Syed Farooq Ali Shah was examined at Ex.26 who produced Photostat copies of receipt No. 1812 dated 17.04.2007, receipt No. 1813 dated 17.04.2007, receipts Nos. 1812 to 13 and sale deed of immoveable property as Ex.26/1 to Ex.26/4 respectively, whereas PW-9 Ali Anwar was examined at Ex.27, who produced letter and FIR as Ex.27/1 and Ex.27/2, while PW-10 Zawar Hussain was examined at Ex.28, who produced letter dated 15.12.2007 as Ex.28/A, thereafter, the DDPP appearing for the State closed side of prosecution vide his statement dated 02.10.2014 Ex.29.
6. Statements of the appellants under Section 342, Cr.P.C. were recorded vide Ex-30 to Ex.32 respectively, wherein they denied the prosecution allegations and professed their innocence.
7. At the conclusion of the trial, learned trial Court convicted and sentenced the appellants as stated above, therefore, the accused/appellants filed these appeals.
8. I have heard learned counsel for the appellants as well as learned Additional Prosecutor General appearing for the State and perused the material available on the record.
9. It is contended by Mr. Zakir Leghari, learned counsel for the appellants, in Cr. Appeals Nos.102 and 103 of 2015 that the appellants are innocent and have been involved in the case falsely with ulterior motive and mala fide intention. He further contended that appellants Mohsin Hussain and Afaq Hussain were the bona fide purchasers of the property in question whereas appellant Imran-ul-Haque was simply working as a Reader in the Office of Sub-Registrar and the appellants had no personal acquaintance with the seller or the complainant, as such no nexus or connection of the appellants has been established with the commission of the alleged offences. He further contended that the trial Court has miserably failed to appreciate that prosecution has not been able to show any mens rea, mala fide or ulterior motives against the appellants. According to him, the appellant Mohsin had personally visited the house in question in the life time of the deceased and likewise appellant Imran-ul-Haque has only presented the file while performing his official duty and both the appellants had no personal knowledge about any family dispute between the parties. He argued that the trial Court in a hasty and mechanical manner convicted all the accused/appellants under all the sections mentioned in the challan without appreciating the fact that the alleged role of all the accused was of different nature. According to him, sections 217, 218 and 161, P.P.C. as well as section 5(2) of Prevention of Corruption Act, 1947 are specifically meant for 'public servant' as such conviction of appellants Mohsin Hussain and Afaq Hussain under the said sections is totally illegal and unlawful.
10. Learned counsel for appellant Dev Parkash in Criminal Appeal No. 104 of 2015 also submitted that appellant is innocent and has been booked in the instant case with ulterior motives and mala fide intention. According to him, the appellant at the relevant time was performing his official duty as Sub-Registrar and as per section 52 of the Registration Act every document presented for registration before the Sub-Registrar is to be accepted by him and he is not empowered to refuse to accept any such document which is authenticated, attested and duly verified by the Advocate. He laid emphasis on Rule 135 of the West Pakistan Registration Rules which provides that Registration Officers are not concerned with the validity of documents and they have to accept the documents presented before them, however despite this, the appellant on the application moved by the complainant, stopped registration process and adjourned the proceedings for want of verification of death of deceased father of the complainant. He further contended that the prosecution has not succeeded to establish the mens rea and ulterior motives or mala fides on the part of the appellant. According to him, the appellant has simply performed his official duty and he had no personal knowledge about any family dispute between the parties, as such the prosecution has miserably failed to show any nexus or connection of the appellant with the commission of the alleged offences. According to him, at the most the appellant could have been made as witness to depose about the factual aspects of the case, however at the instance of the complainant with mala fide intention to accomplish her ulterior motives the Investigating Agency has involved the appellant as an accused in the case. Both the learned prayed for allowing the appeals and setting aside the impugned judgment and acquittal of the appellants.
11. Conversely, learned Additional Prosecutor General appearing for the State has supported the impugned judgment and contended that the same has been passed in accordance with the law and the learned Special Judge while delivering the impugned judgment has discussed each and every point involved in the case and has assigned sound and cogent reasons for his findings. He submitted that the General Power of Attorney was forcibly obtained from deceased Khajista Bukht which is evident from the fact that the deceased was admitted in Imam Hospital Karachi in serious condition on 23rd January, 2007 and was-discharged on 26th January, 2007, whereas the General Power of Attorney in question was got registered on 27th January, 2007 which was forcibly obtained by Mst. Hameeda who is still absconder. He further contended that official accused have misused their official positions and for obtaining illegal gains they have committed the alleged offences. He prayed for dismissal of the appeals and maintaining the conviction and sentence awarded to the appellants.
12. I have considered the submissions of the learned counsel for the appellants as well as learned Additional Prosecutor General and have gone through the evidence and other material brought on the record.
13. From the perusal of the record, it would be seen that there are lacunas, discrepancies as well as certain admissions in the evidence of prosecution witnesses which, for the sake of convenience, are narrated hereunder:
14. P.W. 1/Complainant Mst. Shaista Zareen in his cross-examination stated as under:
"It is correct that the death certificate produced by me was not attested by conciliate of Pakistan in U.K I do not know if Mohsin and Afaq Hussain both accused filed a Suit No. 798/2007 before Hon'ble High Court regarding house No. 1792/14 FB Area Karachi. It is correct that in the said suit I filed an application along with affidavit to become a party in the said suit. It is correct that the date of death is mention as 17.02.2007. Vol. says at that time I was not aware about the actual date of death of my father. I do not know if the said suit has been decreed.........It is correct that an FIR under section 365-A/34, P.P.C. dated 12.06.2007 has been lodged by me against accused. Babar Shah, Afaq Hussain and Mohsin.... It is correct that in my FIR dated 12.06.2007 I had not mentioned about the demise of my father..... It is incorrect that I had stated in my 154 statement that the above said accused persons after kidnapping my father forcibly took in thumb impression of documents. Vol. says that I do not know the content of FIR No. dt. 12.6.2007. It is not in my knowledge if the said criminal case/FIR was dispose of as "C" Class. I see Ex.17/4 and 17/5 (my applications to the D.D.O: Land Revenue and Sub-Registrar Gulberg Town) and say it is correct that I had not mentioned the names of accused Mohsin and Afaq Hussain."
15. From above, It would be seen that when the complainant herself admits that the death certificate of her father produced by her was not duly attested by the Conciliate of Pakistan in U.K., then what was the wrong with accused Dev Parkash, who was acting as Sub-Registrar at the-relevant time, to ask for verification of the death certificate. Rather it shows bona fide on his part otherwise he would have completed the registration process simply on the basis that as the death of the deceased had taken place in London, as such death certificate duly attested by the Conciliate of Pakistan was required to be produced which was not produced by the complainant. Had he been in collusion with private accused persons, he would, on the basis of such legal flaw on the part of the complainant, have accomplished the registration process but he did not do so and, on the other hand, he adjourned the proceedings for want of verification of the death certificate.
16. Another point inferred from her cross-examination is that on the one hand, she took a plea that "I do not know if Mohsin and Afaq Hussain both accused filed a Suit No. 798/2007 before Hon'ble High Court regarding House No. 1792/14 FB Area Karachi". However, in the same breath she herself belied this statement by saying that "It is correct that in the said suit I filed an application along with affidavit to become a party in the said suit." When she was not aware about to filing of the aforesaid suit by accused Mohsin and Afaq Hussain then as to how she filed application in the said suit for becoming a party. Again she admitted that she had lodged FIR under Section 365-A/34, P.P.C. against accused Babar, Mohsin and Afaq Hussain. However, although she admitted that in her application addressed to DD ACE on 19th April, 2007 she had disclosed the factum of death of her father but in the aforesaid FIR which was lodged subsequent to the said application i.e. on 12th June, 2007, she did not disclose the said fact of death of her father, as admitted by herself in her cross-examination. Yet there is another lacuna in her evidence, inasmuch as in her cross-examination in the first instance she denied a suggestion that she had stated in her 154 statement that the above said accused persons after kidnapping her father forcibly took his thumb impression on documents. However, in the same breach she negated her statement by voluntarily saying, "I do not know the content of FIR dated 12.6.2007". It is also not believable that although she herself had lodged FIR dated 12.6.2007 but she was not aware that the said FIR was disposed of in "C" Class, as stated by her in his cross-examination. All this shows that she is not trustworthy so far as her statements are concerned.
17. PW-5 Mirza Aamir Baig claims to be the relative of both the parties. He in his examination-in-chief deposed as under:
"In last month of 2006 Khajista Bukht arrived at Karachi later on my aunt also came. Since the spouse had strange relations with each other therefore one day on hearing about the dispute our between them I went to see them. I found my uncle was injured said to be beaten by my aunt. Waseem and Shahista Zareen (her daughter from first wife) taken him to their place, where his health was further deteriorated and he had been shifted to hospital. After one week he has been discharge from hospital .. Thereafter Babar and absconding accused Hameeda Begum forcibly put his thumb impression on some documents and also took him to the Court. On the next day his son also arrived from U.K. and took his father back to U.K. thereafter my Aunt initiated some steps by calling Estate Agent and sold the property in question to accused Mohsin."
18. However, in his cross-examination Mirza Baig made following admissions which are of worth importance:
"I have gone through my statement recorded under section 161, Cr.P.C. there are some contradictions between my statements recorded before IO and Court. My statement before Court is correct. It is correct that my Uncle was intended to sale the property in question. It is correct that he himself contacted some Estate agents for that purpose . The thumb impression had been put on the POA by my Uncle in my presence. I cannot read English. It is correct that it has been told before taking the thumb impression of my Uncle that it was a General Power of Attorney. It is correct that on the next day when my uncle had been taken out I have been told that they are going to the Sub-Registrar Office. It is correct that it is in my knowledge that accused Mohsin paid Rs. 46 Lacs toward sale consideration to Hameeda Begum. .. It is correct that in my statement under section 161, Cr.P.C. I have not stated that accused Mohsin and Afaq were aware about the death of my Uncle . It is correct that my Uncle also called the documents of plot in question. It is correct that the said documents were received through mail."
19. From perusal of above evidence it appears that his evidence is self-contradictory. Although in his examination-in-chief he deposed that Babar and absconding accused Hameeda Begum forcibly put thumb impression of the deceased on some documents and also took him to the Court, whereas in his cross-examination he categorically stated that the thumb impression had been put by his uncle viz. deceased Khajista Bukht on the Power of Attorney in the presence of this witness. Obviously both the statements are self-contradictory. Either of the two statements could be true not the both. If his statement that the thumb impression of the deceased was obtained forcibly is believed then question arises as to why he kept mum at that time and did not raise any objection and even if it is presumed that due to fear he could not do so at the spot, then as to why immediately thereafter he did not apprise such fact to anybody, particularly the complainant. If his other statement is believed that the deceased himself put his thumb impression in his presence, then why he made a false statement in his examination-in-chief that the thumb impression of the deceased was obtained by the accused persons forcibly.
20. He also admitted that the deceased himself intended to sell the property in question and for that purpose he had also contacted some Estate Agents and called the property documents from London which were received by mail. If this was the position, then the plea of forcibly obtaining the thumb impression and then forcing/pressurizing the deceased to execute General Power of Attorney in the office of Sub-Registrar is weakened. Furthermore, this witness himself admitted that there were contradictions in his statement under Section 161, Cr.P.C. and the statement recoded, before the Court. He also admitted that accused Mohsin paid Rs.46 Lacs towards sale consideration to Hameeda Begum, which shows that accused Mohsin was only a bona fide purchaser and this spoils the allegation of connivance and ulterior motives against him in collusion with accused Hameeda Begum.
21. I also find weight in the submission of the learned counsel for the appellants Mohsin Hussain and Afaq Hussain that the trial Court has erred in convicting the said appellants under sections 217, 218 and 161, P.P.C. as the said Sections are specifically meant for 'public servant' and not for private persons. Section 161, P.P.C. relates to an offence committed by a public servant who takes the gratification other than legal remuneration in respect of an official act, whereas section 217, P.P.C. is in respect of an offence committed by a public servant by disobeying direction of law with intent to save any person from punishment or property from forfeiture. Likewise, Section 218, P.P.C. also relates to an offence committed by a public servant who frames incorrect record or writing with intent to save any person from punishment or property from forfeiture. So far as Section 5(2) of Prevention of Corruption Act, 1947 is concerned, although preamble of the Act, 1947 provides that it applies to all citizens of Pakistan, however, now it is a settled law that Anti-corruption Police is neither conferred with any power nor authority to investigate into a dispute regarding private lands, nor does Prevention of Corruption Act, 1947 permit the Anti-Corruption Police to entertain any complaint with regard to the title dispute between the private parties. If any authority is needed, reference can be made to the cases of Dilbar Hussain v. Habib ur Rehman and another (2017 PCr.LJ Note 218), Mohammad Moosa v. State (2005 CLC 487) and Khadim Hussain v. The State (2011 PCr.LJ 1006).
22. So far as the case of official accused namely Dev Parkash and Imran-ul-Haque, who were acting as Sub-Registrar and Peshkar respectively at the relevant time, is concerned, there is also weight in the contention of the their respect advocates that they were simply performing their official duty and they had no personal knowledge about the family dispute between the parties, hence they had no mens rea and ulterior motive for committing the alleged offences. In this respect, reliance has been placed on Rule 135 of the West Pakistan Registration Rules, 1929. It would be advantageous to reproduce the said rule hereunder for the sake of convenience:
"Registering officers not concerned with validity of documents. Registering officers should bear in mind that they are in no way concerned with the validity of documents brought to them for registration, and that it would be wrong for them to refuse to register on any such grounds as the following, e.g. that the executant was dealing with property not belonging to him, or that the instrument infringed the rights of third persons not parties to the transaction, or that the transaction was fraudulent or opposed to public policy. These and similar matters are for decision, if necessary, by competent Courts of law and registering officers as such have nothing to do with them. If the document is presented in a proper manner by a competent person at the proper office within the time allowed by law, and if the registering officer is satisfied that the allegedly executant is the person he represents himself to be, and if such person admits execution, the registering ,officer is bound to register the document without regard to its possible effects."
135. Registering officers not concerned with validity of document.---Regarding officer should bear in mind that they are in no way concerned with the validity of documents brought to them for registration, and that it would be wrong for them to refuse to register on any such grounds as the following, e.g., that the executant was dealing with property not belonging to him, or that the instrument infringed that rights of third persons not parties to the transaction, or that the transaction was fraudulent or opposed to public policy. These and similar matters are for decision, if necessary, by competent Courts of law and registering officers, as such, have nothing to do with them. If the document is presented in a proper manner by a competent person at the proper office within the time allowed by law and if the registering officer is satisfied that the alleged executant is the person he represents himself to be, and if such person admits execution, the registering 6 officer is bound to register the document without regard to its possible effects.
23. In view of what has discussed above, I am of the considered view that the prosecution has failed to prove its case against the appellants beyond shadow of reasonable doubt. Needless to emphasize the 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 the circumstances, conviction and sentence awarded to appellants Dev Parkash son of Kishan Lal, Imran-ul-Haq, Afaq Hussain son of Manzoor Hussain and Mohsin Hussain, son of Mansoor Hussain are not sustainable. Accordingly, the appeals deserve to the allowed and the impugned judgment dated 20.04.2015, passed by the trial Courts is liable to be set-aside. Order accordingly.
24. Above are the reasons for short order announced by me on 23.04.2018, whereby the appeals were allowed, the conviction and sentence awarded to the appellants were set aside and the appellants were acquitted of the charge.
SA/I-20/Sindh Appeals allowed.