These appeals under section 410, Cr. P. C. Read with section 10 of Criminal Law Amendment Act, are directed against the judgment dated 20th July 1980, of the learned Special Judge, Anti-Corruption.
Sukkur, whereby he convicted the appellant Abdul Rauf under sec--tion 468, P. P. C. Read with section 5(2) of Prevention of Corruption Act, 1947 and sentenced him to undergo R. I. For three months and also to pay a fine of Rs. 10,000 or in default to undergo R. I. For three months more and the appellant Nasrullah under section 109 read with section 468, P. P. C. And sentenced him to undergo R. I. For one month and also to pay a fine of Rs. 1,000 or in default to undergo, further R. I.
For one month. The appellant Abdul Rauf has filed hi: appeal through his counsel on 22nd July 1980, whereas the appellant Nasrullah has filed his appeal through Jail. Since both the appeals are directed against one and the same Judgment, I will therefore dispose of both of them by this Judgment.
2. The facts of the prosecution case are that Mouladad Brohi put in an application to the Deputy Commissioner, Larkana stating that Survey No. 59 and others of Deh Imam Bux. Taluka Shahdadkot of Larkana District belonged to Nasrullah Jamali (appellant) and his sister Mst. Jiwai who sold their shares to Illahi Bux Brohi and others and Mouladad respectively. It was further alleged that Nasrullah (appellant) in collusion with Shah Nawaz, Tapedar of the beat got bogus agricultural pass book prepared by showing entire area in his name and mortgaged the whole land including Mouladad Brohi's share and took a loan from the Agricultural Development Bank of Pakistan The Deputy Commissioner forwarded this application to the Circle Officer. Anti-Corruption Establishment, Larkana under a confidential cover on 11th April 1977, for a further detailed enquiry into the matter and also to report the liability of the Revenue Staff and the Khatedar Nasrullah Jamali (appellant) so that further action could be taken in the matter accordingly.
3. The C. O., Anti-Corruption Establishment, Larkana after enquiry lodged F. I. R., Exh. 11-B on behalf of the State at Police Station A. C. E., Larkana under sections 420, 465, 468, P. P. C. Read with section 5(2) of Act II of 1947 on 4th July 1977 and took up the investigation of the case. He collected the enquiry reports of the Mukhtiarkar, Shahdadkot and Assistant Commissioner, Shahdadkot Exhs. 10- A and 4-E respectively. He secured "Dakhal Kharij" register of Deh Imam Bux, Agricultural Pass Book, village Form VII and copy of the letter dated 22nd May 1976, addressed to the Assistant Commissioner Exh. 11-C. He also secured the relevant file of the loan case, in the name of Nasrullah (appellant) and the green copy of the agricultural Pass Book No. 44454 from Agricultural Bank and prepared such mashirnama Exh. II-D. He interrogated the accused Abdul Rauf on 8th June 1978, and examined P. Ws. Lutifali Butt, Mukhtiarkar on 17th September 1978, Mauladad and Elahi Bux Brohis on 26th September 1978. He recorded statement of the accused Nasrullah on the same day.
He examined P. W. Ghous Bux on 27th September 1978, Naseer Mohammad Bhutto. Assistant Commissioner on 12th October 1978, Allah Rakhio, Mukhtirakar on 15th October 1978, and P. W.
Muradshah on 17th October 1978. He got the letter regarding Index No. 11 Exh. 11-E and prosecu--tion sanction Exh. 11-F and challaned the accused on 17th January 1979.
4. The prosecution case is based on the evidence of Lutifali (P. W. 1), Naseer Ahmed (P. W. 2), Ghulamullah (P. W. 3), Mouladad (P. W. 4), Ellahi Bux (P. W. 5) Syed Muradshah (P. W. 6), Ghous Bux Brohi (P. W. 7) Allah Rakhio (P. W. 8) and Akbar Ali C. O., A. C. E., Larkana (P. W. 9).
5. The accused have denied the allegations in their statements before the trial Court. The accused Abdul Rauf has further stated that the Pass Book in question was prepared by the Tapedar of the beat and he only corrected it after verifying the same with "Khasra Girdawari" and has signed it after comparing it with the Revenue Record. He has also examined Ghulam Rasool Supervising Tapedar of Circle "Kubo" in defence. The accused Nasrullah has stated that the disputed survey Nos. Belonged to him. The photostat decree of the civil Court in his favour, Memo of appeal filed by him and others in the High Court on 19th February 1969, and other documents showing his title have been produced by him. He has also filed written statement showing his possession on the disputed land. He has further stated that Mouladad Brohi and others have falsely shown sale instead of "lease" of the disputed land in their favour which is being contested by him in the Courts.
6. I'll first of all examine the evidence on record. Lutifali (P. W. 1) was Mukhtiarkar of Shahdadkot in year 1974. He has stated that the Pass Book of the disputed land were prepared by Munshi Shahnawaz Tapedar who had expired. They were checked by the accused Abdul Raoof who was supervising Tapedar of the Circle. There were various corrections in the hand of the accused Abdul Raoof in respect of entries made by the Tapedar concerned who was responsible for making entries in the Pass Books after going through the relevant Record of Rights, "Khasra Girdawari" and the village Form No. VII. The Supervising Tapedar of the beat, was responsible for checking the entries after verify--ing the same with the revenue record and then verification was to be made by the Head Munshi who had to send the Pass Book to lie Mukhtiarkar for his signature after verifying the entries. He has however, stated that the relevant record in this case was not produced by the Tapedar before him when the pass books were produced before him. He signed the same as they were in accordance with law and also because such instruc--tions were mentioned in the pass book. He has also stated that he had attested photo of Nasrullah (appellant) when he went before him. It has also been admitted by him that the loan is granted to every one against his land.
7. Naseer Mohammad P. W. 2 is Assistant Commissioner, Shahdadkot of District Larkana. He has produced the application of complainant Mouladad Exh. 4-A and also entry No 163 of village Form VII as Exh. 4-B According to him, this entry was in respect of shares of Nasrullah (appellant) and his sister Mst. Jiwai in respect of disputed Survey No. 59 and others and there was note in the remarks column that Nasrullah had sold his share of land equal to 5 annas and 6 pies as per entry No. 157 of village Form VII to Ellahi Bux and Noon Mohammad. There were over-writings over shares of annas and pies in the above entry. He has also stated that pass book Exh. 3-A was correctly prepared by the Tapedar Shahnawaz but Abdul Rauf (appellant) forged the entries in favour of Nasrullah by ignoring the entry No. 157 Exh. 4-C and entry No. 2 Exh. 4-D. He also stated that the entire survey Nos. Have been acquired by Nasrullah (appellant) and his sister Mst. Jiwai by inheritance from their father Misri Khan and according to entry Exh. 4-D it was only Mst. Jiwai who sold her shares of 25 paisas to Mouladad which were mutated in the name of Mouladad on 8th August 1977. It was clear from the entry No. 2 that Mst. Jiwai was the owner of the above land upto 8th August 1977.
8. Ghulamullah P. W. 3 is Assistant in the Agricultural Development Bank of Pakistan and he has produced the file pertaining to grant of loan amounting to Rs. 7,350 to Nasrullah (appellant) Exh. 5- A. He has also produced the attested copy of the letter dated 1June 1977 addressed to the Manager of the Bank by the Mukhtiarkar for recovery of loan as Exh. 5-C.
9. Mouladad P. W. 4 who purchased lands from Mst. Jiwai sister of the accused Nasrullah has stated before the trial Court that he purchased the land by a Registered Sale-Deed and produced such Extracts as Exh. 6-A. He has further stated that he came to know through Master Ghous Buy that the accused Nasrullah in collusion with the Tapedar and Supervising Tapedar bad got his land entered in his pass-book and had taken loan from the Agricultural Development Bank:
10. Ellahi Bux P. W. 5 is also purchaser of the shares of the disputed land from Nasrullah (appellant) by a registered sale deed. He has stated before the trial Court that Nasrullah in collusion with Tapedar got his land entered in the pass book and thereafter took a loan from the Agricultural Development Bank of Pakistan.
11. Syed Murad Shah P. W. 6 is also a purchaser of the land to the extent of his share of 10 annas out of 80 "Jaribs" sold by the accused Nasrullah to him by a deed in writing. He has also stated that the accused Nasrullah went away on his words and did not get his deed registered.
12. Ghous Bux P. W. 7 is a primary teacher who has stated that the accused Nasrallah sold his land to Ellahi Bux, Noor Muhammad and Murad Shah whereas his sister Mst. Jiwai sold his land to Mouladad Brohi. But the accused Nasrullah got a bogus pass book prepared from Tapedar Shahnawaz showing the lands of Ellahi Bux, Murad Shah and Mouladad as his property and took a loan on it from the Agricultural Development Bank of Pakistan. He has also stated that Supervising Tapedar Abdul Rauf had attested the Pass Book allegedly prepared by the late Shahnawaz. He hai however admitted that it was Mouladad who had informed him about the preparation of the pass book and that he was a distant cousin of his father.
13. Allah Rakhio (P. W. 8) was Mukhtiarkar, Shahdakot. On 22May, 1977 he received application of Mouladad P. W. 4 from the Deputy Commissioner, Larkana for enquiry and report through Assistant Commissioner, Shahdadkot. He made enquiries, verified records of rights of Deh Imam Bux Jamali and found that the Tapedar Shahnawaz and Abdul Rauf Supervising Tapedar (appellant) prepared forged Pass Book in name of Nasrullah who subsequently got loan from the Agricultural Development Bank of Pakistan He sent such report Exh. 10-A and also produced entry No. 2. Exh. 10- B. He has also stated that the Mukhtiarkar and Head Munshi had also signed these pass books after verification of the record but they enjoyed the exemption under section 181 of the Land Revenue Act if the verification was carried out by them in good faith The Supervising Tapedar was also a checking officer and he too enjoyed exemption under section 181 of the Land Revenue Act. He has also stated that the entries in the pass book are made from village form VII vide Entry No. 16,3 which was written by Tapedar and the note clearly explained the position. He did not know as to who made the over---writings. However this entry had not been confirmed by any revenue officer and the rest of the entries were confirmed by the Revenue Officers.st nd
14. The C. O., A. C. E. Akbar Ali P. W. 9 is the Investigating Officer who has lodged the F. I. R. On behalf of the Sizie on basis of the application of Mouladad Brohi and has investigated the case. He has also stated before the trial Court that the disputed Survey Nos. 59, 65, 71, 72, 227, 229 and 354 of Deh Imam Bux of Taluka Shahdadkot were inherited by Nasrullah (appellant) and his sister Mst. Jiwai.
Nasrullah (appellant) had sold his share, out of them, to the extent of 15 acres 27 ghuntas to one Ellahi Bux and Noor Mohammad whereas Mst. Jiwai sold her share by way of registered sale-deed to one Mouladad Brohi in year 1972. He has further stated that the Survey Nos. And the area in the Pass Book No. 44454 prepared in the name of Nasrullah was written by the appellant Abdul Rauf, Supervising Tapedar though the disputed land never stood in the name of Nasrullah who falsely mortgaged it for taking a loan of Rs. 7,350 from A. D. B. P. It has also been stated by him that Tapedar Shahnawaz had died even before he took over investigation of this case. There are corrections about the area in the pass book which have been made by Abdul Rauf (appellant). He however, denied if the disputed land was subject-matter of litigation between Mouladad and Nasrullah (appellant) and that such petition was pending in the High Court. He has also stated that he did not know if the disputed survey Nos. Shown in the pass book were known as Estate 1978 and were with Encumbered Estates department. He has also admitted that the Tapedars had passed a resolution against the Anti-Corruption Establishment.
15. The learned counsel for the appellant Abdul Rauf has contended that the letter Exh. I 1-A did not show any allegation against the appellant Abdul Rauf who was not primarily responsible for making any entries either in the revenue record or to the pass book which was the duty of the Tapedar of the beat as per section 42 (3) of Land Revenue Act, 1967. He has also contended that Elahi Bux P. W. 2 has very clearly stated that it was co-accused Nasrullah who in collusion with the Tapedar got the land in question entered in the pass book and took a loan on it from Agricultural Development Bank of Pakistan and so also Ghous Bum P. W.
7. Moreover this was a case in which entries of the land in village form VII for year 1971 onwards Exh. 4-B as per entry No. 163 continued to be in names of Nasrullah (appellant) and his sister Mst. Jiwai as owners of the disputed land. He has further contended that Nasrullah (appellant) sold 6 annas 5 pies share from disputed land and there remained still a share of 9 annas 7 pies which was clear from the entry No. 157 Exh. 4-C. Even the pass book has been signed by the Tapedar and the appellant Abdul Rauf has only attested it on the basis of verification from the revenue record which was finally signed by the Mukhtiarkar. As far as Abdul Rauf (appellant) is concerned, he has absolutely nothing to do with the preparation of the pass book and his responsibility was only to attest after referring to the record which in this case supports the entries in the village form VII. It has been further contended by the learned counsel that the appellant Abdul Rauf has done his duty in good faith and his responsibility is not more than that of the Mukhtiarkar and therefore liability of both of them was also similar. Ghulam Rasool D. W. 1, is supervising Tapedar of circle Kubo who has also supported the case of the appellant inasmuch as that corrections made by him were in the green ink and they were correctly entered from "Khasra" register. There was no forgery committed in the record. The trial Court has discarded his evidence in spite of the fact that he was the Incharge Supervising Tapedar of the circle in respect of which there were allegations of forgery in the record. There was no reason to disbelieve him and discard his evidence. It has also been contended by him that the application of Mouladad was forwarded to the C. O., A. C. E., by the Deputy Commissioner for further enquiry and report to him so as to fix responsibility of his staff and not for incorporating it in the 154 Cr. P. C., book as a F. I. R. The C. O., A. C. E., who has admitted that the Tapedar had passed a resolution against the Anti-Corruption Establishment had a personal grudge and he on account of it falsely implicated the appellant and involved him in this case. It has been lastly contended by the learned counsel for the appellant that the' prosecution against the appellant was barred and he being a Supervising Tapedar comes within definition of the Revenue Officers under sec--tion 4(23)(28) read with section 11 of the Land Revenue Act. Moreover case against him even otherwise is not proved beyond any reasonable doubt and he was therefore entitled to benefit of doubt under the circumstances of the case.
16. The appellant Nasrullah who is present in person has contended that he was innocent and has been dragged in the case though the disputed land belonged to him. There was litigation between him and Mouladad Brohi over title of the disputed land and such petition filed by him was still pending in the High Court. He has been sent up with a view to harass him so that he should not pursue his matter in the Courts.
17. Mr. A. A. Dareshani, the learned counsel appearing on behalf of the State does not support the Judgment of the trial Court. According to him, it suffers from legal as well as factual infirmities in the case of the appellant Abdul Rauf as there is no evidence on record to show if he has played any part in preparation of the pass book. Moreover his responsibility was only to the extent of verification keeping in view the Revenue Record which has been properly discharged by him. As far as the case of Nasrullah (appellant) is concerned, he has nothing to do with preparation of the pass book. There is neither such application made by him showing the disputed Survey Nos.
Belonging to him nor any request by him for the preparation of the pass book. It would be therefore very difficult to connect him with the offence. Moreover he has been convicted for offence of abetment under section 109, P. P. C. Though there was no such charge against him, and the conviction awarded to him under the circumstances is not warranted by law. It has also been pointed out by him that the trial Court has framed four points and there is no finding on any of them. If at all, there was any charge, it was for not showing entries about, sales for which none of the appellants was responsible and both of theta therefore were entitled to acquittal under the circumstances of the case.
18. I have considered the contentions of the learned counsel for the appellant Abdul Rauf, Nasrullah who has been produced from the Jail and the learned counsel for the State. I have also carefully read the evidence on record against them. There is no dispute on the point that pass-book are always prepared by the Tapedar of the beat and it has been admitted that it was Tapedar Shahnawaz, who prepared the pass book in this case also. The prosecution has not been able to show from the record if the appellant Nasrullah made such application for preparation of his pass book showing the disputed survey numbers to be his property. There is neither a written request from him nor any one else on this point has been examined by the prosecution. It is therefore not known as to how the disputed survey numbers were shown in the pass-book of the appellant Nasrullah by the Tapedar Shahnawaz who died much before the investiga--tion of this case was taken over by the C. O., A. C. E. It is now difficult to connect Nasrullah (appellant) with the preparation of the pass-book as rightly pointed out by the learned counsel for the State. Morever there is litigation between Nasrullah (appellant) and others over the title of the disputed survey numbers and such appeal is pending disposal in the High Court. Whoever may the owner of the disputed survey numbers but Nasrullah (appellant) cannot be connected with the preparation of the pass book particularly when the prosecution has failed to bring any such evidence against him.
As far as the case of the appellant Abdul Rauf is concerned, his responsibility is to verify and check the entries in the pass book with the entries in the Revenue Record which responsibility has been properly discharged by him. Naseer Mohammad P. W. 2, who is Assistant commissioner, Shahdadkot has stated that the Entry No. 2 Exh. 4-D showed that Mst. Jiwai was the owner of the disputed land upto 8August, 1977. Latif Ali, P. W. 1 who was Mukhtiarkar, Shahdadkot, in 1974 stated that the responsibility of the appellant. Abdul Rauf was only to check the entries after verifying the same from the Revenue Record and the verification thereafter was to be made by the Head- munshi who had to send the past-book to the Mukhtiarkar for his signatures after verifying the entries. It has also been admitted by him that the relevant record was not produced by theth Tapedar before him in this case when the pass-book was produced and he signed it as the entries were in accordance with law and also because such instructions were mentioned 'in the pass- book. It is therefore clear that the responsibility of the appellant who was supervising Tapedar was more or less similar to that of Head-munshi and the Mukhtiarkar who have also verified the entries and have signed the pass-book There is no charge against them for such shortcoming on their part .Except the appellant Abdul Rauf who nevertheless has been supported by Ghulam Rasool, Supervising Tapedar of the concerned Circle Kubo. He has been examined in defence as D. W. 1 and according to him, the corrections made by the appellant Abdul Rauf were in green ink and they were correctly entered from "Khasra register". He has further stated that no forgery was committed in the record. The appellant Abdul Rauf being a Supervising Tapedar and not primarily responsible for preparation of the pass-book cannot be made liable for wrong entries, if any, made by the Tapedar Shahnawaz who expired much before the investigation of his case was taken over by the C. O., A. C. E., Larkana.
19. 1 am therefore of the view that the prosecution has failed to prove the case beyond reasonable doubt against the appellants and the convictions and sentences awarded to them on such evidence cannot be maintained. They are entitled to acquittal and their appeals are accepted and the convictions and sentences awarded to them are set aside. The Judgment of their acquittal was announced by a short order earlier and these are the reasons for it,