1. ANWARUL HAQ, C. J.-This judgment will dispose of Civil Petition for Special Leave to Appeal Bearing No. K-243 of 1974 and Criminal Appeals bearing Nos. K-2 and K-3 of 1976, all of which involve certain common questions of law and fact. By an oral order announced on the 1st of February, 1981, we had dismissed the Civil Petition, but reserved our judgment in the two criminal appeals.
2. The relevant facts are that an evacuee building, known as Raja Mansion, situate in Ranchore Lines in the city of Karachi; was put to auction on 12-9-1959 as a big mansion, and the highest bid of Rs.
3. 6,70,000 was given by the petitioner as against the reserved price of Rs. 9,95,040. The Auction Committee recommended to the Chief Settlement Commissioner that the property be put to re- auction, but ultimately, after some correspondence, the building was offered to the petitioner at 40 years rental value, amounting to the reserved price of Rs. 9,95,040. The petitioner's acceptance was conveyed to the Deputy Settlement Commissioner by his letter dated the 29th of December, 1959, and the Chief Settlement and Rehabilitation Commissioner's approval was conveyed to him on the same date.
4. On the 2nd of March, 1960, the petitioner addressed a letter to the Deputy Settlement and Rehabilitation Commissioner, requesting that the necessary adjustments towards the cost of the building may be made as given in the enclosed paper and that he had checked the K. M. C.
5. Records, and was also submitting a plan of the building, showing that Raja Mansion stands on K. M.
6. C. Nos. R C-8/7/lA to I-D and R C 8/7/2/1/1. He requested that the same K. M. C. Plot numbers may kindly be noted on the P: T. O. In the advertisement for public auction as published in the daily newspaper `DAWN` dated the 30th of August, 1959, the property to be auctioned was described as bearing Municipal Nos. R C 8/7/1-A to 1-D, Ward IVA-239 to 42 known as Raja Mansion, Ranchore Line. In the subsequent correspondence, which took place between the petitioner and the settlement authorities, leading to its sale to the petitioner by private negotiations the same numbers were repeated, but in his letter of the 2nd of March, 1960, the petitioner had mentioned an additional property number also, namely, R C 8/7/2/1/1.
7. On the basis of this letter of the petitioner, a P. T. O. Was issued in his name on the 21st of March, 1960, under the signatures of the Deputy Settlement Commissioner (Auction), and in the schedule of the property, appended to this document, all the five property numbers, as indicated by the petitioner in his letter of the 2nd of March, 1960, were mentioned. The Custodian numbers, namely, Ward No. IV-A 239 to 242 were also mentioned, and it was further added that the possession had been handed over with effect from 6-11-1959.
8. It appears that after obtaining the P. T. O. For the auction to property, the petitioner applied for the ejectment of the tenants of the building, most of whom were police officials. It is submitted by the petitioner that these police officials manoeuvred to get a case registered against him by the Special Police Establishment on the 5th of December, 1962, to the effect that he had fraudulently got included in the P. T. O. a fifth property unit bearing No. R. C. 8/7/2/1/1, although it bad not been put to auction, nor was it included in the sale by private treaty and that, in fact, it was a valuable property unit consisting of 50 fiats, of which the evaluation price at 40 years rental basis amounted to Rs. 3,90,240. On the basis of this F. I. R., the petitioner, along with an official of the Settlement department, named Iqbal Ahmad Ansari were prosecuted in the Court of the Special Judge (Central), Karachi, who found both of them guilty under section 420 P. P. C. Read with section 5 (2) of the Prevention of Corruption Act II of 1947, and sentenced each of them to undergo rigorous imprisonment for two years, and also to pay a fine of Rs. 2 lacs, by his judgment dated the 8th of January, 1968. Both the accused persons filed-appeals to the High Court, but they were dismissed by a learned Judge on the 28th of June, 1971. The two criminal appeals by the leave of the Court, are directed against these convictions and sentences.
9. On the Settlement side, the Settlement and Rehabilitation Commissioner, Karachi, issued a notice to the petitioner M. M. K. A. Zai on the 16th of October, 1970 asking him to show cause on the 24th of October, 1970, in person or through counsel as to why the P. T. O. Dated the 21st of March 1960, should not be amended by scoring out property No. R. C. 8/7/2/1/ 1, and why such other action as may be permissible under the law may not be taken against him. The petitioner replied to the show-cause notice on the 24th of October, 1970, contending that a big mansion could not be divided into parts, and that he had purchased the whole building, of which the sale had been confirmed by the Chief Settlement Commissioner, and hence the matter could not be re-opened, These objections were, however, over-ruled by the learned Settlement Commissioner by his order dated the 25th of February, 1974, and it was held that the building standing on Plot No. R. C.
10. 8/7/2/1/1, was never sold to Mr. Zai and his associates and therefore, its inclusion to the P. T. O.
11. Dated the 23rd of March, 1960, was void ab initio.
12. Aggrieved by this order of the Settlement Commissioner, the petitioner filed a writ petition in the High Court, which was, however, dismissed by a learned Judge vide his order dated the 26th of March, 1974. He then filed an intra-court appeal, which was also dismissed by a Division Bench by its judgment dated the 4th of October, 1974.
13. It will be seen that the first question in all these matters is as to the identity of the property sold by the Settlement Department to the appellant and his associates by means of private negotiations.
14. The case set up on behalf of the petitioner Zai is that as the building in dispute was a big mansion, known as Raja Mansion, it had to be disposed of as a whole, and there could be no question of slicing away any portion thereof, with the result that, irrespective of the K. M. C. Property numbers mentioned in the advertisement or the subsequent correspondence between the petitioner and the Settlement Department, it was the entire building known as Raja Mansion, which had been sold to him. It is next contended that, apart from the K. M. C. Property numbers, in all the relevant documents property numbers appearing in the Evacuee Property Register prepared by the Custodian after a factual survey of all the evacuee properties, had also been mentioned, namely, Ward No. IVA-239 to 242, and the disputed fifth unit, in fact, stood included in Custodian number 239, thus clearly establishing the fact that the petitioner had purchased all the five units comprised in the Raja Mansion, even though initially only four K. M. C. Units were mentioned in the advertisement and in the subsequent correspondence. He also contends that even though admittedly the 40 years rental value of the fifth unit amounts to Rs. 3,90,240, and if this is added to the 40 years rental of the other four units, the total would amount to Rs. 13,85,280, yet these aggregates are irrelevant for the purpose of determining the identity of the property sold to the petitioner, as he had made a lump sum offer of Rs. 9,95,040 for the entire big Mansion, which offer was accepted by the Chief Settlement Commissioner. The petitioner contends that the Settlement authorities, as well as the learned Judges in the High Court and the learned Special Judge have all misread and misinterpreted the relevant evidence in this behalf in coming to the conclusion that only four units of Raja Mansion had been sold by the Department and purchased by the petitioner.
15. He submits that there is ample authority for the view that in case of any doubt as to the true identity of the property sold, the property numbers are not the determin--ing factor, but the well- known boundaries and description of the property should prevail. In support of these submissions, he places reliance on Raghunandan Thakur v. Babu Kishindeo Mahata AIR 1926 Pat. 257, Munder Lal Sahu v. Jiwan Ram Marwari AIR 1944 Pat. 254, Shailendranath Mitra v. Girijabhushan Mukharji I L R 58 Cal. 686. He has also referred to Sh, Fazal Ahmad v. Abdul Hakim 1970 SCMR 284 and S. M.
16. Fakhar Hassain v. Abdus Sattar PLD 1971 SC 438 in regard to the manner of disposal of big mansions. Finally, he has gone into great details to show that out of 50 tenements comprised in the disputed portion of the big Mansion, at least 30 stand included in the Custodian number 239, which overlapsed K. M. C. No. R. C. 8/7/1-A and the disputed property number, namely, R. C. 8/7/2/1/1.
17. After hearing appellant Zai in person, who is himself an experienced lawyer of considerable standing, as well as his counsel Mr. Muhammad Hayat Junejo, and perusing all the relevant documents, we have come to the conclusion that the learned Settlement Commissioner, who passed the order dated the 25th of February, 1974, directing the deletion of the fifth unit from the P.
18. T. O. Issued to the appellant, was fully justified in holding that only four units of the property had been offered for sale by public auction, in the first instance ; and subsequently sold to the petitioner and his associates by private negotiations at 40 years rental value of these units amounting to Rs.
19. 9,95,040 ; and that the fifth unit bearing No. R. C. 8/7/2/1/1, was not the subject-matter of the sale.
20. The two Benches of the High Court were, accordingly, right in refusing to interfere with this order.
21. Similarly the learned Special Judge (Central) as well as the learned Judge in the High Court, who heard the criminal appeals filed by the appellants were also right in taking the view that the fifth unit valued at Rs. 3,90,240 had never been sold to the petitioner and his associates.
22. As already stated, the proceedings for sale of the building known as, Raja Mansion were initiated by the Settlement Department through a advertisement in the Press, and according to the copy of the auction notice as it appeared in the English daily newspaper DAWN bearing the date 30th August, 1959, only four Municipal property numbers were mentioned and the reserve price was indicated as Rs. 9,95,040. It is true that corresponding Custodian numbers IV-A 239 to 242 were also mentioned, but our examination of the survey register prepared by the Custodian Department has left us in no doubt that this was an undependable document, being full of errors, alterations and erasions ; and, accordingly, no reliance ca be placed on the entries appearing in this register ; nor can any benefit accrue to the appellant on the basis thereof.
23. It is also to be noted that this survey register was prepared in the year 1950, whereas the evacuee property was to be disposed of according to its assessment as appearing in the relevant Municipal record relating to the year 1946-47. It is significant that in his application of the 2nd of March, 1960 asking for the issuance of a P.T.O. The petitioner himself made reference to his examination of the K.
24. M. C. Record, and prayed that an additional K. M. C, property number be entered in his P. T. O.
25. Although this property number had not found mention at all either in the public advertisement for the auction, or in the subsequent correspondence, which took place between the petitioner and the Settlement Department for the purpose of finalising the sale by private negotiations. It is, thus clear that, irrespective of the question whether a big mansion could be divided into parts or not, only four p of Raja Mansion had, in fact, been offered for sale. It is also relevant the remark fire that in the Municipal records it is clearly indicated that Raja Mansion did have several blocks or portions, and it is possible for this reason that the authorities may have decided to dispose of only foul portions thereof. However, this is not a matter, which needs to be pursued any further, as we are concerned with the factual position as it obtained at the time of the sale in favour of the petitioner and his associates.
26. All the Courts below have, in our opinion, rightly taken note of the fact that the whole matter stands clinched by the basis adopted by the Settlement authorities for the sale of this building. It is admitted by the petitioner that the 40 years rental value of the four portions of the property, originally advertised for sale, and subsequently offered to the petitioner for private sale, comes to Rs. 9,95,040. It is also conceded on his behalf that this figure was mentioned as the reserve price of these units, The 40 year rental value of the fifth unit, now in dispute, comes to Rs. 3,90,240 and when it is added to the similar value of the other four units, then the aggregate comes to Rs. 13,85,280. It was also conceded at the Bar by the petitioner that the aggregate 40 years rental value of the four Custodian property unit bearing Nos. 239 to 242 also comes to Rs. 13,85,280. It is not the petitioner' case that any negotiations were ever held between him and the Settlement Department on the basis of the higher figure just indicated.
27. It is futile for the petitioner to argue that he was not concerned with the 40 years rental value of the property purchased by him or that he was not aware that this value was being made on the basis of negotiations between him and the Settlement Department. We have already mentioned that right from the beginning a reserve price was being indicated, and that was equal to 40 years rental value. The reason why the initial offer of Rs. 6,70,000 made at the auction was not accepted was that the offer fell below the reserve price. In his letter dated the 18th of September, 1959, the Deputy Settlement Commissioner had inquired from the petitioner whether he and his associates were willing to offer at least Rs. 8,70,660, being the annual rental of the Mansion for 35 years, as prevailing in the year 1946. In his reply dated the 12th of October, 1959, the petitioner wrote back saying that they would be willing to offer a price equal to 30 years rental value. This offer is clearly mentioned at Item No. 2 in paragraph 3 of this letter, in which another building was also included for sale on the same basis. Then came the Deputy Settlement Commissioner's letter dated the 1st of December, 1959, inquiring whether the petitioner would be willing to offer at least Rs. 9,95,040 being 40 times the annual rent of the Mansion as prevailing in the year 1946. The petitioner responded by accepting this offer by his letter dated the 29th of December, 1959. The exact words used in this latter are: "I agree to pay 40 years rental value of 1946-47 for the above Mansion. Kindly accept the offer."
28. In the presence of these documents it was, indeed, meaningless for the appellant to argue that be was not aware of, nor concerned with, the 40 years rental value of the building being purchased by him.
29. It thus becomes clear that the negotiations concerned the purchase o only four units of the property, and the fifth unit having a separate rental value of Rs. 3,90,2.90 did not form part of the transaction. On this view of the matter, we have no doubt whatsoever that the property sold to the petitioner comprised only four units, bearing property Nos. R C 8/7/1-- ---A to1-D; and that the fifth unit bearing Municipal property No. R C 8/7/2/1/1 comprising 50 tenements, was not sold to the petitioner. He had, therefore no right to obtain a P. T. O. In respect of this unit. The learned Settlement Commissioner acted rightly in directing that it should be deleted from the P. T. O.
30. A futile attempt was made to argue that the action taken by the Settle--ment authorities to modify the P. T. O. Suffered from laches as a show cause notice was issued in October, 1970, nearly 11 years after the sale; and that the associates of the petitioner had not been made parties to the proceedings The last objection can straight away be disposed of by saying that it was for the associates to come forward and raise the objection, and the proceedings against the petitioner are not in any manner, vitiated for the reason that his associates were not made parties. We find that all the proceedings were conducted with or against the appellant as he had been acting ac the Attorney son behalf of all the purchasers. As to the question of delay, it is conceded that no time limit is prescribed under section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, for the exercise of suo motu power of revision. No benefit, can, therefore, accrue to the petitioner by reason of delay, which had apparently been occasioned by the pending criminal proceedings in the Court of the Special Judge Anti-Corruption, and later due to the pendency of the criminal appeals in the High Court.
31. As a result, civil petition bearing No. K-243 of 1974 fails, and is hereby dismissed.
32. Coming now to the criminal appeals, we notice that, by the order dated the 16th of August, 1971, leave .To, appeal was granted to examine the following two contention: --
(a) That the allegations against the appellants amounted to an offence under section 27 of the Displaced Persons (Compensation and Rehabilitation) Act, and therefore, they were not cognisable by any Court in the absence of a complaint in writing made by an officer appointed in this behalf as required by section 28 of the Act; and
(b) That the conviction of the appellants was illegal in view of definite documentary evidence to show that the disputed property unit was included in the property sold to appellant Zai and his associates.
33. The first contention cannot succeed in view of the decision given on 14-2-1967 by this Court in criminal petition for special leave to appeal bearing No. K-60 of 1966, by which an order made by a learned Judge of the High Court dismissing appellant Zai's petition under section: 61-A of the Criminal Procedure Code for quashment of his prosecution, was up--held. The learned Judge in the High Court had held that the allegations against the appellants constituted a substantive criminal offence under the Penal Code, and did not fall within the narrow ambit of section 27 of the Displaced Persons (Compensation and Rehabilitation), Act, 1958, and, accor--dingly, the Special Judge had full jurisdiction to proceed with the matter even in the absence of a complaint as required by section 28 of the afore--said Act. This view was upheld by this Court, with the result that the trial of the appellants proceeded before the learned Special Judge. We cannot at this stage sit in review over the order made by this Court on 14th of February, 1967. The first contention must, therefore, fail for this reason.
34. As to the second contention, we have already found, while dealing with appellant Zai's civil petition for special leave to appeal (C. P. S. L. A. No. K-243 of 1974) that the fifth unit comprised in Raja Mansion was not the subject matter of the sale, and, accordingly, it could not have been legally included in the P. T. O. Issued in his favour on the 21st of March, 1960. The second contention must therefore, also fail.
35. However, we consider that these findings do not conclude the matter. Even though we have held that the fifth property unit bearing No. R C--8/7/2/1/1 was a separate and distinct property unit, not included in the property purchased by appellant Zai by means of private negotiations, the question still remains whether his inclusion of this property number in his application dated the 2nd of March, 1960, was a deliberate and fraudulent act, so as to bring him within the mischief of section 420 of the Pakistan Penal Code.
36. On behalf of appellant Zai, the main contention put forward by Mr. Muhammad Hayat Junejo is that even though the appellant was not entitled to this property unit, yet there was evidence on the record to show that he had some reason to claim the same. In support of this submis--sion, the learned counsel drew our pointed attention to the evidence of Attaullah Qureshi (P. W. 5), who was serving in the Rehabilitation Organiza--tion from 1948 to 1961, and was Head Clerk in 1959. He stated that he had gone to the spot along with the Deputy Settlement Commissioner for conducting the auction of the property. In cross-examination, he admitted that there were many buyers present, and the whole of the building known as Raja Mansion was shown to the intending buyers, and that Serial No. 48 was put on all the corners of Raja Mansion on the road side; and it was not conveyed to the bidders at the auction that any portion of Raja Mansion had been withheld from sale. He further stated that if the Municipal plumbers had been wrongly noted, correction could be made after reference to the area of the plot and property of the correct number was to be delivered to the buyer. He also stated that the unit now in dispute was not auctioned separately; nor were the buyers told the number of tenements in each unit. He also conceded the fact that Custodian number 239 included some portion of the disputed unit, which was stated to have been assessed along with Custodian unit 239.
37. A perusal of the evidence of Attaullah Qureshi, who was directly concerned with the auction proceedings of big mansions including Raja Mansion, does create the impression that at the spot the intending buyers were informed that the entire building known as Raja Masion was mean for sale, even though in the advertisement notice only four units were specified. We have already stated that the Custodian property numbers, mentioned in the Evacuee Property Survey Register are over-lapping, with the result that Custodian unit 239 includes property unit 1-A, as well as portion o property unit 2/l/l, which is now in dispute. It is true that the aggregate rental value of the four Custodian units also amounted to more than Rs. 13 lacs, but the auction notice, as well as the negotiations correspondent mentions the four Custodian units without the higher aggregate rent value. In these circumstances, we have anxiously considered whether it could be said, beyond reasonable doubt, that appellant Zai deliberately intended to defraud the Settlement authorities, so as to grab a valuable property unit for which he had not paid. In the light of the auction proceed--ings, and the overlapping nature of the Custodian property numbers, it is reasonably possible to take the view that the appellant may have genuinely considered himself entitled to the whole of the Raja Mansion, an it was for this reason that he stated in his application of the 2nd of March, 1960. That on checking the K. M. C. Records he had discovered/ that Raja Masion also included the portion built upon plot bearing No. RC 8-7-2-1-1. It can certainly be argued that he should have taken the pre--caution of calculating whether, with the inclusion of this extra unit, the 4 years rental would still remain at the figure agreed to be paid by him, but merely on account of his failure to do so, it cannot be concluded that he had the necessary mens rea as contemplated by section 415 of the P. P. C., and made punishable under section 420 thereof.
38. As stated by Attaullah Qureshi, it was the duty of the Settlement Depart--ment to correct any error that night have crept into the proceedings in respect of property numbers, and the whole mischief could easily have been avoided if appellant 1qbal Ahmad Ansari and the Deputy Settlement Commissioner had cared to scrutinise the contents of appellant Zai's application, and refused to incorporate the fifth unit in his P. T. O. They, however, failed to do so, but here again it can legitimately be regarded as a case of negligence, and not necessarily a case of criminal intent.
39. The learned Assistant Advocate-General, appearing for the State submitted that all the acts of the appellant were part of a criminal plan; and this is supported by a subsequent application submitted by the appellant, Zai on the 20th of July, 1962, in which he even laid claim to an open plot or compound bearing No. RC 8/7/2/1/2, on the ground that this was also a part of Raja Mansion. In this application the appellant gave several reasons to show that this was included in Raja Mansion.
40. It appears to the learned Assistant Advocate-General that even though this application was ultimately rejected by the Settlement authorities, it did show criminal intent on the part of this appellant.
41. We regret we do not see any such irresistible inference flowing from this application; on the contrary it indicates that the appellant was insisting ail along that he had purchased the entire Raja Mansion irrespective of the K. M. C. Property numbers included in the auction notice or the correspon--dence relating to private negotiations for its sale. Although the claim was untenable in view of the price paid by him, yet it need not necessarily treated as a deliberate fraud, as it could have been easily rejected by the Settlement authorities, if they had applied their mind to identify the property; which had been actually sold. It appears to us, therefore, that even though a portion of Raja Mansion, which had not formed the subject matter of the sale, had been claimed by appellant Zai, and entered in his P. T. O. On the basis of a note prepared by appellant Iqbal Ahmad Ansari, it cannot be held beyond reasonable doubt, that both were acting in concert and with criminal intent. The learned Special Judge, as well as the learned Judge in the High Court have not adverted to the aspect of Attaullah Qureshi's evidence to which our attention has been drawn by Mr. Muhammad Hayat Junejo.
42. For these reasons, we are of the view that it is not possible to maintain the convictions and sentences recorded against the two appellants. We, accordingly, accept these appeals, set aside their convictions and sentences on all the counts and acquit them.