' This judgment shall dispose of Criminal Appeal No.716 of 1999 (Muhammad Afzaal v. State), Criminal Appeal No.717 of 1999 Muhammad Asghar v. State and Criminal Appeal No.718 of 1999 (Ah:mad Din and another v. State) as all are outcome of the same judgment.
2. Appellants Muhammad Afzaal, Muhammad Asghar, Ahmad Din (since dead) and Tufail Shah along with their acquitted co-accused Anwar Ahmad Girdawar, Rafaqat Hussain, Muhammad Iqbal and Muhammad Din, were tried by the learned Special Judge, Anti-Corruption, Lahore in case F.I.R. No.73/82 under sections 420, 468, 471, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 registered at Police Station Anti-Corruption, Lahore on the basis of complaint Exh. P. W. 8/1 moved by Lahore Development Authority regarding double allotment of the plots in Allama Iqbal Town Scheme, Lahore, and were convicted and sentenced as under:--
3. Ahmad Din, Muhammad Asghar and Tufail Shah were convicted under section 5 of the Prevention of Corruption Act, 1947 and sentenced to two years' R.I. Each and a fine of Rs.5,000 each, in default of the same to undergo three months' S.I. They were also convicted under sections 420/468/471, P.P.C. And sentenced to two years' R.I. On each count and a fine of Rs.5,000 each on each count, in default thereof to suffer three months' S.I.
4. Muhammad Afzaal was convicted under section 420, P.P.C. And sentenced to two years' R.I. And a fine of Rs.5,000 in default of payment of fine to undergo three months' S.I. He was further convicted under section 468, P.P.C. And sentenced to two years' R.I. And a fine of Rs.5,000 in default thereof to undergo three months' S.I. He was further convicted under section 471, P.P.C. And sentenced to two years' R.I. And fine of Rs.5,000, in default thereof to suffer three months' S.I.
5. All the sentences of the convicts were ordered to run concurrently. However, the sentences for the nonpayment of fine were ordered to run one after the other (consecutively). Benefit of section 382-B, Cr.P.C. Was however, extended in their favour.
6. During the interregnum of the appeal Ahmad Din, appellant has been died, thereof, the appeal to his extent stands abated.
7. The brief facts of the prosecution case as narrated in para.2 of judgment of the trial Court are that the Lahore Development Authority Administration Directorate had moved a complaint Exh.P.W.8/1 to the Director Anti- Corruption Establishment, Lahore regarding the double allotment of plots in Allama Iqbal Town Scheme, Lahore. It was stated that land bearing Khasra No.913 in Village Bhekowal, Lahore measuring 6 Kanals and 4 Marlas was divided into two parts bearing Khasra No.913/1 of 4 Kanals and 16 Marlas, and No.913/2 measuring 1 Kanal and 8 Marlas vide Mutation No.1184, Khasra No.913/1 (hereinafter mentioned as the disputed Khasra) measuring 5 Kanals and 16 Marlas was purchased vide various mutations by Muhammad Ashfaq, Muhammad Afzal and Muhammad Mushtaq accused persons who were the sons of Muhammad Ishaq and they had sold their entire land in 1964 to six persons namely Hakim Fazal Din, Nazir Ahniad son of Hakim Fazal Din, Naseem Akhtar wife of Muhammad Umer, Zafar Iqbal son of Muhammad Yousaf, Muhammad Sarwar son of Mehr Din and Muhammad Ali son of Murad Bakhsh through various mutations. On the basis of these sales, these vendees were given exempted plots in this scheme then known as 1600 Acres Scheme. Later on it was found out that the deceased accused Muhammad Ashfaq, his brother the P.O. Accused Muhammad Mushtaq and accused Afzaal despite having sold their entire lot in this Khasra number had in lieu of the land, obtained. Through fraud, 1 plot each of 10 Marlas.
Vide File No.M.R.E.-413 the entitlement of Muhammad Afzaal accused was verified by Mukhtar Ahmad, Patwari deceased accused as well as by Qanungo and Naib Tehsildar. Similar was the case with File No.414 relating to Ashfaq the deceased accused and of Muhammad Mushtaq the P.O.
Accused the L.D.A. Haci from the land Acquisition Collector summoned the record of the award regarding land acquisition in this village the perusal of which denoted that against the disputed Khasra number double entry was made whereby Muhammad Ashfaq and his two brothers accused persons were shown as owners of land of this disputed Khasra number at Serial No.139 of the award while the vendees Hakim Fazal Din etc. Were also shown as owners of the same land at Serial Nos.142, 193 and 196 of the award. It follows that at Serial No.139 Ashfaq etc. Accused persons were shown owners of 4 Kanals and 16 Marlas of land in equal shares although they had sold it and the new purchasers had through MRE-346, 345, 394 and 477 been allotted the plots against the same land. On the receipt of this complaint necessary inquiry was entered into and thereafter case through this F.I.R. Was registered. Necessary sanction of the prosecution which is Exh.P.W.11/1-3 was obtained from the Commissioner, Lahore. P.W.3 Mr. Abid Anjum, Director L.D.A. Who in the year 1981 was Deputy Director had before the registration of the case received the departmental inquiry report Exh.P.W.3/1 which was sent through orders Exh.P.W.3/2 to the Director, A.C.E., Lahore. On it the F.I.R. Exh.P.W.8/1 was recorded by P.W.8 Din Muhammad, S.-I. Who conducted the partial investigations. Iqbal Ahmad accused had through recovery memo. Exh.P.W.8/3 produced the general power of attorney in his favour which is Exh.P.W.8/2 while Rafaqat accused had through recovery memo. Exh.P.W.8/5 produced general power of attorney and the sale-deed Exh.P.W.8/4 and Exh.P.W. 8/5 respectively. The investigation was then also taken over by P.W.8 Riaz-ur Rehman Kallu, D.S.P., who took into possession the MRE files Exhs.P.W.9/1 to 8 and thereafter he was transferred. The remaining investigation was conducted by P.W.11 Fazal Azeem retired, D.S.P. Who had ultimately submitted the challan.
8. After submission of the challan, the trial Court framed the charge which was denied by the accused and they claimed trial.
9. During the trial the prosecution' examined as many as 13 witnesses to prove the guilt of the accused.
10. Muhammad Ismail was examined as P.W.1 who purchased the disputed plot in the name of his wife from Nazir son of Fazal Din who had earlier purchased it from Ashfaq. Sadiq Hussain, P.W.2 purchased the disputed plot in the name of his brother who had earlier purchased it from Ashfaq accused and his brothers and in lieu of this land L.D.A. Had granted him Plot No.293. P.W.3 Abid Anjum, Director L.D.A. Submitted the inquiry report to the Anti-Corruption Establishment. P.W.4 Barkat Ali produced the record of the disputed plots. P.W.5 Nazir Ahmad stated that his father had purchased land from Ashfaq and his two brothers from the disputed Khasra number and through general power of attorney he had sold it to Khadim Hussain. Sher Muhammad, Patwari, P.W.6 produced copies of the record. Waris Ali, Patwari, P.W.7 proved the entries of the record Din Muhammad, S.-I. P.W.8 partially investigated the case. Muhammad Akram, Assistant Mechanical Engineer, P.W.9 produced file Exh.P.W.9/9 in the Court. Muhammad Riaz-ur-Rehman, P.W.10 and Fazal Azeem, D.S.P. P.W.11 also partially investigated the case. Muhammad Munir Ahmad, Advocate P.W.12 maintained that he had identified Mushtaq (P.O.) before the Sub-Registrar and Ashfaq accused when power of attorney Exh.P.W.8/2, Exh.P.W.8/4 and Exh.P.W.8/7 were executed by the accused. Arif Hussain was examined as P.W.13 who had purchased the Plot No.232, Gulshan Block from Iqbal accused which was later on transferred to him by the L.D.A. The appellants in their defence produced D.W.1 Manzoor Ali, Land Controller, who stated that Ahmad Din neither had record of the scheme with him nor he was Revenue Patwari.
11. The trial culminated into conviction and sentence of the appellants as mentioned above.
12. In support of the appeals, learned counsel for the appellants have argued that the appellants are innocent and they have faced the agony of the trial for a period of more than 19 years; that none of them had prepared Revenue Record and there is no allegation of receiving illegal gratification.
13. Learned counsel for the State have opposed the appeals.
14. I have heard the learned counsel for the parties and examined the record.
15. Admittedly, the sale of the disputed land took place in the year 1964. There was no entry made in Jamabandi for the year 1966-67 and there is also no allegation that any of the appellants forged or used any document or they cheated anyone to constitute their misconduct and there is no allegation for having received illegal gratification. From the perusal of the evidence I fmd that no offence under sections 468, 471, P.P.C. Has been attracted against the present appellants. They have already faced the agony of the trial and pendency of the appeals for quarter of a century.
They are old men and have retired from service since long and have no previous criminal history, therefore, by extending of benefit of 'doubt their appeals are allowed, their conviction and sentence is set aside and they are acquitted of the charge. They are on bail, their sureties are discharged.