Sardar Muhammad Raza, J.--Faisal Ashfaq, Tahir Ashfaq and Mst. Saiqa Ashfaq, the sons and daughter respectively of Muhammad Ashfaq (deceased) have been granted leave to appeal against the judgment dated 10.5.2002 of a learned Judge in chambers of Lahore High. Court, Rawalpindi Bench, deciding Criminal Appeal # 86 and Criminal Revision # 41 of 1998.
2. Muhammad Ashfaq alongwith eight others, with reference to FIR # 26 dated 12.10.1985 of Anti- Corruption Establishment Rawalpindi, was tried under Sections 109/218/420/468/471 PPC read with Section 5(2) of the Prevention of Corruption Act 1947. The offences aforesaid were alleged to have been committed in connection with forged and fictitious transfer of land property.
3. For the limited purpose of this appeal, the relevant background is that Muhammad Ashfaq died during the pendency of trial aforesaid and hence qua him the trial abated. Another co-accused named Muhammad Ashraf, the then Patwari, was convicted. The impugned judgment of the learned High Court was with reference to his Appeal # 86 of 1998 while the present appellants had filed Criminal Revision # 41 of 1998, both having been heard together. The learned Special Judge, Anti-Corruption Rawalpindi providing cause of grievance to the present appellants, passed an order apparently under Section 517 Cr.P.C, that reads as follows:-- .......therefore land measuring 108 kanals 2 marlas purporting to be transferred in favour of Muhammad Ashfaq accused through Mutations Nos, 2048 to 2051 belongs to the State and the State is entitled to its possession. Under the provisions of Section 517 Cr.P.C., it is hereby ordered, that whosoever is in possession of the said land, after the death of Muhammad Ashfaq accused, its possession be taken Trom him and restored to the State. This order is to be carried into effect by the District Magistrate/District Collector. However it shall not be carried out for one month from the date of this order."
The aforesaid order, having been upheld by the learned High Court through the impugned judgment, the appellants have resorted to this Court.
4. In order to appreciate the circumstances under which the order, purporting to be under Section 517 Cr.P.C. is passed, one has to go a little further in the background. One Mushtaq Hussain son of Lal Khan of Nadia, Gujar Khan through this attorney, had filed an application before Additional Commissioner, Rawalpindi that a fraud had been committed by Muhammad Ashfaq in collusion with the revenue authorities regarding land in question which was originally allotted to one Fateh Ali son of Hasan Muhammad refugee from Jammu and Kashmir. In the order of allotment two family members namely Fateh Ali and Mst. Zainab Bibi widow of Boota were mentioned. That Fateh Ali died as bachelor while Mst. Zainab Bibi died as. an issue-less widow. The ownership rights were transferred to them six years after their death, in 1978-79.
5. That Muhammad Ashfaq, being Chairman of Union Council Narhali and in collusion with the revenue staff got transferred the property of Fateh Ali in favour of a fake lady named Mst. Salima Bibi, personating as daughter of Fateh Ali. A Mutation # 1776 was attested to that effect the `part patwar' whereof was manoeuvered to be misplaced.
6. Thereafter, one Khuda Bux was shown to be an attorney of Mst. Salima Bibi and the land was transferred through the attorney in favour of Muhammad Ashfaq vide Mutations # 2048 and 2049'This also included the transfer of state land measuring 40 kanals, having not been transferred to Fateh Ali.
7. An inquiry was conducted on the basis whereof a case was registered, eventually, to be tried by learned Special Judge Anti-Corruption Rawalpindi who vide judgment dated 13.3.1998 convicted Muhammad Ashraf but no order against Muhammad Ashfaq could be passed due to his death during trial. The order qua the landed property, reproduced in the earlier part of this judgment and upheld by the learned High Court has culminated into this appeal.
8. After having gone through the entire record and history of the case, one cannot fail to comprehend that an order for disposal of property, if at all, can be passed under Section 517 Cr.P.C. only when the trial is concluded. In the instant case the properly has been in the name of Muhammad Ashfaq deceased who was an accused but against whom the trial never concluded.
Because of his death during trial he had ceased to be an owner of the 'property that stood vested by devolution of inheritance in the present appellants. Such owner through inheritance were never arrayed as accused in the trial and thus their rights could not be jeopardized at the conclusion of proceedings to which they were never a party. The learned counsel for the appellant relied, in principle, on Tara Chand v. The State (AIR (38) 1951 Madhya Bharat 154).
9. The learned Special Judge has also ignored a judicial fact that qua the title of the property there was a decree of Civil Court dated 12.5.1993 in favour of Muhammad Ashfaq against which the Government had withdrawn its appeal # 185 before the District Court on 21.11.1993. The judgment which would be discussed thoroughly in due course, being of Civil Court concerning title of a party at the relevant stage could not be undone by a criminal Court, under Section 517 Cr.P.C. The aforesaid circumstances taken together sufficient provide that a Court exercising criminal jurisdiction, in the given condition, was not legally equipped with reasons to pass an absolute order deciding the title of any party in the landed property. Order of the nature contemplated by Section 522 or 522-A Cr.P.C. can also be passed only when a person is convicted of an offence of cheating, forgery, criminal misappropriation of property or criminal breach, of trust. In the instant case Muhammad Ashfaq, apparent owner of the property was never convicted and also had ceased to be an owner during the pendency of trial.
10. This has brought us to a fairly anomalous situation where, according to the concurrent finding of two Courts of criminal jurisdiction the offence of fraud by cheating, forgery and personation stood finally proved. The landed property concerning which the fraud is.' committed certainly belongs now to the legal heirs of Muhammad Ashfaq, whose title should not be allowed to be disturbed by an order of Court of criminal jurisdiction before whom they were not a party and before whom even the trial against their father had abated and not concluded.
11. The situation aforesaid happens to be better comprehended when one reverts back to a decree dated 12.5.1993 of the Civil Court that had become final due to withdrawal by the Government of appeal before the District Court on 21.11.1993. The details of such appeal and withdrawal thereof are available at (pp-166-171). The filing of the suit by Muhammad Ashfaq himself, the obtaining of ex parte decree and the withdrawal of appeal before the Additional District Judge Rawalpindi become extremely relevant when looked at in the context of 'criminal case registered on 12.10.1985.
It was in connection with the complaint of one Mushtaq Hussain, that a departmental inquiry was 'first conducted. Through the exact date of 'Mushtaq Hussain's application is not decipherable yet the period of such complaint and inquiry apparently seems to be coinciding with the period of the civil suit and this makes the matter dubious.
12.In the civil suit, an ex parte decree was obtained by Muhammad Ashfaq on 12.5.1993 from Senior Civil Judge. Rawalpindi (pp 160-165) against the Government of Punjab and its functionaries of revenue department (p-154). They, at the first instance, attended the Court, filed written statement and subsequently disappeared and were thus proceeded against ex parte. Government of the Punjab filed Appeal # 185 on 15.6.1993 before the District Judge which was withdrawn on 2E11.1993. On the crucial date one Muhammad Tufail, Junior Clerk had produced a letter from Tehsildar Gujar Khan disclosing that the Provincial Government had no interest in the land having already been allotted. Thus the appeal stood dismissed as withdrawn (pp-170-171).
13. It is amazing to observe that the appeal of Provincial `Government which normally is supposed to be represented either by the Advocate General or by the District Attorney was, in all boldness, withdrawn under the letter of Tehsildar Gujar Khan who had no authority to withdraw. Even the office bearers of the office of Advocate General cannot withdraw any proceedings from the Court without the instructions in writing of the Government, as such. Government of the Punjab was not doubt a party but no functionary beyond district level was arrayed as defendants. Even the Board of Revenue was not made a party with Special reference to the Government land involved. This Withdrawal dated 21.11.1993 under dubious circumstances has resulted into miscarriage of justice and into non-rendering of a decisive judgment on merits. The technical difficulty is that the judgment has become final as well. On the one hand there are judgments of two Courts in the civil hierarchy rendered under dubious circumstances and on the other hand there are judgments of criminal. Courts that negate the genuineness of transfer of land but with no judicial finding against Muhammad Ashfaq who happened to have died during criminal trial. We are left with no decisive verdict.
14. In order that the status of the property qua which fraud is alleged to have been committed, does not go unsettled and in order that complete justice is done in the case and to both the parties, we could, in the circumstances, comprehend of no other remedy except invoking our jurisdiction under Article 187 of the Constitution.
15.Consequently the instant appeal is accepted, the order purporting to be passed under Section 517 Cr.P.C. is set aside, and that dated 21.11.1993 of withdrawal of appeal by Additional District Judge Rawalpindi is also set aside. Appeal # 185 instituted on 15.6.1993 decided on 21.11.1993 by Additional District Judge Rawalpindi is hereby restored to its original number with direction that it be decided on merits. The first appellate Court is directed to implead the legal heirs of Muhammad Ashfaq and also to implead any other party that it deems proper in accordance with law and in the interest of justice. Mrs. Afshan Ghazanfar, learned Assistant Advocate General Punjab, present in Court is directed to appraise the Government of the background and to instruct the Government to properly pursue the matter in accordance with law.