' QAISER RASHID KHAN, J.---The. State through Advocate-General, Khyber Pakhtunkhwa, Peshawar has challenged the judgment dated 22-6-2011 passed by the learned Additional Special Judge, Anti-Corruption, Southern Region, Headquarter Bannu, Camp Court, D.I.Khan vide which the respondents/accused were acquitted.
2. Brief facts of the case are that accused/respondent Ghazi Khan purchased property measuring two kanals through Mutation No.4199 dated 28-1-2009 from Muhammad Azam, wherein the sale consideration was mentioned as Rs.40,000. One Rafiqullah filed a pre-emption suit against Ghazi Khan and in the meanwhile the said Ghazi Khan resold the same property to one Muhammad Nabi vide registered Deed No.686 dated 28-3-2009 for a sum of Rs.32,50,000. Muhammad Nabi was also impleaded as defendant in the pre-emption suit filed by Rafiqullah. Muhammad Nabi filed an application before the civil court that the pre-emptor namely, Muhammad Rafiqullah be directed to deposit 1/3rd amount of Rs.32,50,000 mentioned in the registered sale-deed. Said application of Muhammad Nabi was dismissed by the civil court and he in turn filed a revision petition before the learned Additional District Judge-VI, D.I.Khan. During the course of arguments on the revision petition, the learned Additional District Judge-VI, D.I.Khan observed that a property purchased against the sale price of Rs.40,000 vide Mutation No.4199 dated 28-1-2009 was re-sold after two months against a sale price of Rs.32,50,000. In view of the huge difference between the two prices when the same was brought into notice of accused/respondent Ghazi Khan, he frankly and candidly conceded before the learned Judge to have paid Rs.25,000 as illegal gratification to the patwari halqa for entering less sale consideration in the mutation in order to evade government taxes. The learned Additional District. Judge-VI, D.I.Khan thus sent a letter Endst:No.16-19/G dated 20-3-2010 to the Director Anti-Corruption Establishment, Peshawar to inquire into the matter. This letter/complaint was marked to local ACE of District D.I.Khan and an inquiry commenced and after its conclusion, case F.I.R. No.04 dated 12-5-2010 was registered at Police Station ACE, D.I.Khan:
3. After completion of investigation and other requisite formalities, the accused were summoned to the court where they were formally charge-sheeted to which they did not plead guilty and claimed trial. The prosecution in order to substantiate the charge against the respondents/accused produced eight witnesses. The gist of the prosecution evidence is as follows:-
4. P.W.1, Muhammad Tariq Head Constable, is the marginal witness of recovery memo. Exh.P1/1 vide which the C.0 took into possession an agreement Exh.P-1 executed between Muhammad Azam son of Gul Sattar and Sunatullah, Shamo Khan sons of Ghulam Rasul. P.W.2, Muhammad Nabi, had purchased the property measuring two kanals from Ghazi Khan through registered Deed No.686 dated 28-3-2010 in lieu of Rs.32,50,000 Exh.P.W.2/1. P.W.3, Syed Shamshad Hussain, is the marginal witness of Mutation No.4199 attested on 28-1-2009 vide which Ghazi Khan had purchased the property from Muhammad Azam and had stated that the property was purchased in lieu of Rs.27,50,000 but was not in the knowledge of the sale price mentioned in the mutation Exh.P.W.3/1 and was also signatory to the agreement, Exh.P-1 before the parties. P.W.4, Taus Khan, was performing his duties as a reader in the court of learned Additional District Judge-VI, D.I. Khan during the relevant time afid stated that Ghazi Khan was asked by the learned Judge that for how much price he had purchased the property and Ghazi Khan had replied that he had purchased the property in lieu of Rs.32,50,000 but paid Rs.25,000 as illegal gratification to the patwari halqa and he had mentioned the sale price in the mutation as Rs.40,000 to avoid and evade government taxes. He also produced a photocopy of the revision petition and also stated to have recorded statement before the Circle Officer, ACE, D.I.Khan. P.W.5, Mulazim Hussain, had produced the attested copy of Mutation No.4199 dated 28-1-2009 to the Circle Officer who also recorded his statement P.W.6, Noor Muhammad Khan Additional Circle Officer, had inquired and investigated the case after receiving the letter Exh . P. W.6/1 of the learned Additional District Judge-VI, D.I.Khan.
He had stated that during inquiry proceedings he recorded the statement of the P.Ws., took into possession the agreement of sale through recovery memo Exh.P.W.1/1 and after conclusion of inquiry he submitted his final report Exh.P.W./2 and after obtaining permission registered the case F.I.R. Exh.P.W./3. P.W.7, Sunatullah, brother of Ghazi Khan stated that he and his brother Shamo Khan purchased the property measuring two kanals from Muhammad Azam in lieu of Rs.27,50,000 and in this regard an agreement was executed between them Exh.P.W.7/1. He further stated that with their consent the mutation was entered and attested in the name of their brother, accused Ghazi Khan.
He stated that the sale price of Rs.40,000 was mentioned by the patwari in the mutation for his own benefit and they had not asked him to enter.The sale price of Rs.40,000 and they asked him to enter the sale price of Rs.27,50,000. P.W.8, Shafiullah Khan during the relevant days was posted as Circle Officer of police station ACE, D.I.Khan and had arrested the accused, issued their cards of arrest and submitted complete challan against the accused, whereafter the prosecution evidence was closed.
5. Thereafter the statements of the accused were recorded under section 342, Cr.P.C. Wherein they denied the allegations in toto, but neither wished to be examined on oath under section 340(2), Cr.P.C. Nor produced any defence evidence. The learned trial Judge after hearing the arguments of the learned counsel for the parties, passed the impugned acquittal order dated 22-6-2011, hence the instant appeal.
6. The learned State Counsel, Saleemullah Khan Ranazai Advocate vociferously attacked the judgment of the learned trial court and termed it as total misappreciation and non-appreciation of the evidence and unsustainable in the eye of law. He argued that the learned trial court had wrongly held the property to be agricultural one as it is situated in Scheme No.156 of Zafar Abad Colony located at main D.I.Khan Maddi Kulachi Road having 120 feet long front and is having commercial characteristics; that the amount of Rs.40,000 was entered in the mutation of the respondent/vendee Ghazi Khan with the connivance of other acquitted accused; that the payment of Rs.27,50,000 as sale consideration of the property is evident from the agreement to sell executed between Ghazi Khan and vendor Muhammad Azam, that the statement of P.W.3 Syed Shamshad Hussain is very relevant to the fact and circumstances of the case but the same was simply overlooked by the learned trial Court in the impugned judgment; that by entering a sum of Rs.40,000 instead of actual price of Rs.27,50,000 as sale consideration of the property in the impugned Mutation No.4199, the accused/respondents have caused a loss of Rs.1,65,000 to the government exchequer and that though the available material brought on record by the prosecution proved the accused/ respondents to be guilty still the learned trial court recorded the acquittal order in` their favour.
7. Conversely, the learned counsel for the respondents Messrs Muhammad Yousaf Bahader Khan.
Marwat and Waqar Alam Advocates turn by turn argued in support of the impugned judgment of the learned trial court dated 22-6-2011. Learned counsel for the respondents argued that section 5(2), P.C. Act is not applicable in the instant matter; that for irrigated lands the price in rural area is Rs.20,000 and in this regard they refetred to the Notification No .598/SK dated 25-11-2008 (Exh.P.W.6/D-1) and that it is discretion of the parties to agree to any amount as the sale price and they cannot be bound down to agree to a particular price for entering the same in the mutation at the time of its attestation; that evasion of taxes is not an offence under section 5(2), P.C. Act and for that matter under section 468 P.P.C.; that the Investigating Officer, (P.W.6) state& that there is no evidence that the patwari i.e. Accused/respondent received any amount by way of illegal gratification from accused/respondent Ghazi Khan and the nature of property being agricultural no government schedule has been brought on file by the prosecution to show its price to be higher; that. Original vendor Muhammad Azam was never produced during trial or for that matter before the learned Additional District Judge-VI, D.I.Khan as it was on the letter's complaint that the entire inquiry was initiated; that Muhammad Nabi and Ghazi Khan are relatives inter se that it was only the verbal stance of Ghazi Khan that he gave Rs.25,000 to Amanullah, patwari halqa with no witness in support thereof; that Syed Shamshad Hussain, P.W.3 witness of the mutation did not say anything about the payment made by the accused/respondent Ghazi Khan to Amanullah, patwari halqa; that the entire file is silent about the paym'nt of Rs.25,000 paid to Amanullah patwari halqa except the statement of. Accused/respondent Ghazi Khan which is not of much credence to award conviction to the accused/respondents Learned counsel for the accused/respondent Ghazi Khan argued that his case on different footings and stated that in the entire controversy accused/respondent Ghazi Khan emerged innocent; that being a layman he did not know about the consequences as he had paid the amount of Rs.25,000 to Amanullah, patwari halqa as government taxes and he never asked for lesser amount of Rs.40,000 to be entered in the Mutation No.4199 attested on 28-1-2009 but Amanullah patwari halqa did the same on his own.
8. I have scanned the record of the case threadbarely and considered the valuable arguments of the learned counsel for the parties.
9. Admittedly, in the Mutation No.4199 dated 28-1-2009, a sum of Rs.40,000 was entered as the sale price of the property. The same very property was sold exactly after two months against an exorbitant sale price of Rs.32,50,000 through registered Deed No.686 dated 28-3-2009 by Ghazi Khan in favour of Muhammad Nabi and but for the preemption suit filed by Rafiqullah against the accused/respondent Ghazi Khan, the sale price of the property would have stayed as Rs.40,000 as far as the Mutation No.4199 is concerned.
10. It was all during the course of hearing of the revision petition by the learned Additional District Judge-VI, D.I.Khan that the actual price of the property was revealed in view of the frank admission by accused/respondent Ghazi Khan, then of course, that a sum of Rs.25,000 was paid by him to Amanullah, halqa patwari for entering less sale consideration so as to avoid and evade government taxes. The argument of the accused/respondent Amanullah that since a proper notification shows the value of the property to be Rs.20,000. Per kanal and the property in question is also irrigated property situated in rural area, therefore, they rightly entered a proper sale price is far from the truth and the record. Muhammad Azam, who allegedly sold the property to Ghazi Khan vide Mutation No.6199 dated 28-1-1999 for a sum of Rs.40,000, had purchased the said property from Malik Aziz and Muhammad Ismail sons of Ghulam Sarwar vide Mutation No.4156 dated 11-11- 2008 i.e., three months prior to the disputed mutation for an amount of Rs.3,00,000 as entered in the mutation. This in itself puts to naught the story put up by the accused/respondents as both the mutations were routed through them and accorded sanction. Thus for their own monetary consideration, they caused a loss of Rs.1,65,000 to the government exchequer.
11. Record further reveals that the learned trial court had wrongly held the property to be agricultural one as it is situated at Zafar Abad Colony located at main D.I.Khan Maddi Kulachi road having 120 feet long front and having commercial characteristics. The amount of Rs.40,000 entered in the mutation of the respondent/ vendee Ghazi Khan and the payment of Rs.27,50,000 as sale consideration of the property is evident from the agreement to Sell with vendor Muhammad Azam.
The statement of P.W.3 Syed Shamshad Hussain is also very relevant to the facts and circumstances of the case but the same was simply overlooked by the learned trial Court in the impugned judgment.
12. The plea of bona fide and innocence portrayed by accused/ respondents Hussain Bakhsh, Aslam and Amanullah is to take a very simplistic view of the matter which I am afraid is not the case. Their claim to have been swa yed and influenced by the contents of Notification No.598 dated 25-11-2008, Exh.P.W.6/D-I, wherein the Valuation Table has been mentioned for the lands in D.I.Khan falls on all fours in view of the Mutation No.4156 dated 11-11-2008 wherein an amount of Rs.3,00,000 has been mentioned as sale price of the property in question and when even the ink of that mutation had not gone dry as yet when they attested Mutation No.4199 and when Mutation No.4159 finds mention in the impugned mutation as well. Greed and avarice are the hallmarks of this case wherein just to make some money, a loss for an amount of Rs.1,65,000 was caused to the government exchequer. Of the dramatis personae, accused/respondent Ghazi Khan too, emerges as one of the principal characters instrumental in getting the deal done with the official accused/ respondents. The naivety and self-righteousness displayed by him through the argument that he had paid a sum of Rs.25,000 to the patwari halqa (accused/ respondent, Amanullah) by way of taxes and not as illegal gratification, is too weak an argument one can buy. All that he is doing now is to make a frail, albeit, a failed attempt to pass the buck to the other accused. All the scents of Arabia to paraphrase 'Macbeth' of Shakespeare's fame would not cover up the stink emanating from this sordid tale of corruption. Thus by actively and wilfully colluding and conniving with each other and entering a sum of Rs.40,000 instead of the actual price of Rs.27,50,000 as sale consideration of the property in the Mutation No.4199, the accused/respondents have caused a loss of Rs.1,65,000 to the government exchequer. The available material brought on record by the prosecution have proved them to be guilty of the offence.
13. As a sequel to my above discussion, the prosecution has proved the guilt of accused/respondents beyond any reasonable doubt, hence, the instant appeal is accepted and the judgment of the learned trial court dated 22-6-2011 is set aside. The accused/respondents namely Hussain Bakhsh son of Malik Haji Muhammad, Muhammad Aslam son of Malik Rab Nawaz and Amanullah son of Haji Ahmad are convicted and sentenced under section 468, P.P.C. To three years' rigorous imprisonment with a fine of Rs.50,000 each, in default to suffer six months simple imprisonment. They are further convicted under section 5(2) the Prevention of Corruption Act, 1947 and sentenced to three years rigorous imprisonment each with a fine of Rs.50,000 each and in default to suffer six months simple imprisonment. Both the sentences shall run concurrently.
14. Accused/respondent Ghazi Khan is convicted under section 468, P.P.C. And sentenced to one year rigorous imprisonment and to pay a fine a of Rs.50,000 and in default to undergo six months simple imprisonment.