M. TABASSUM AFTAB ALVI, C.J.---The supra titled Appeal has been preferred against the impugned judgment of Ehtesab Court No. I, Muzaffarabad, dated 29.02.2012, whereby respondent-accused was acquitted of the charges.
2. The brief facts leading to the instant appeal are that Haji Muhammad Ghayas son of Sardar Muhammad, resident of Kalali, Tehsil Haveli, District Bagh, made a written complaint to the Chairman Ehtesab Bureau AJ&K, against Muhammad Shabbir Farooqi, respondent-Patwari, alleging therein that land survey No.23, situated in village Kalali, Tehsil Haveli, according to the decision of Civil Judge, Kahuta, was in his ownership; however, after the Court decision, respondent-Patwari, made tampering in the revenue record and established a new survey No.23/1 in the name of his father, Lal Deen, and thereafter, the said land was entered in record as crown land, due to which, complainant suffered irreparable loss. The complainant further stated that the aforesaid land was failing in his ownership and possession since the time of his ancestors and a house was also constructed upon the said land in year 1966; hence, he requested for legal proceedings against respondent- Patwari.
3. After receiving the aforesaid complaint, the investigation was assigned to Muhammad Feroze, Deputy Director Investigation. It was found in the investigation that in year 1986-87, settlement was conducted and during the aforesaid period, Muhammad Shabbir Farooqi, Patvvari/accused-respondent, was serving as 'Muharrar' settlement/ 'Tehvildar' record Tehsil Haveli, who took out two papers from the Field Book pertaining to survey No.23, measuring 38 kanals 18 marlas, which was in possession of Haji Muhammad Ghayas, complainant, and replaced the same by establishing new survey No.23/1, measuring 10 kanals 01 marla.
Besides the aforesaid new survey number, further 01 kanal was reduced from survey No.23. In this manner, a .new survey No.23/1 was established through which, land measuring 11 kanals 01 marla was entered in the name of his father, Lal Deen, in revenue record, due to which, acreage of survey No.23, measuring 38 Kanals 18 Marlas, was reduced to 27 Kanals 17 Marlas. The Investigation Officer, at the conclusion of Investigation, found accused-respondent guilty of offences under sections 5(2), PCA 1950, 4, Ehtesab Act, 1997, 10/11, Ehtesab Bureau Act, 2001, 409, 467, 468 and 471, A.P.C. A Reference, therefore, in the aforesaid offences was filed by Chairman, through DCP Ehtesab Bureau, before Ehtesab Court No.2, Mirpur, on 04.12.2001, which was later on, transferred to Ehtesab Court No.1, Muzaffarabad. The trial Court, after receiving the aforesaid Reference, started proceedings and accused-respondent was examined under Section 265-D,Cr.P.C, on 11.01.2008, who denied the guilt. Thereafter, prosecution was ordered to produce evidence in support of the aforesaid Reference. After recording evidence, the statement of accused, as required by section 342,Cr.P.C, was recorded on 20.05.2010, who once again denied the guilt and he also got recorded his statement in defense on 04.02.2011. The learned Judge, Ehtesab Court No.1, Muzaffarabad, atter conclusion of trial and hearing, acquitted accused-respondent of charges while giving him benefit of doubt, vide the impugned judgment dated 29.02.2012; hence, the instant appeal filed by Ehtesab Bureau.
4. Syed Mazhar Azad Gillani, Deputy Chief Prosecutor, appearing on behalf of Ehtesab Bureau, contending in- written arguments that the Court below misconstrued facts of the case and fell in error by misreading and non- reading of documentary as well as oral cyidence adduced by the prosecution. He pointed out that Muhammad Amin Shah, Girdawer, was declared hostile by prosecution; however, in cross-examination he admitted that during investigation somebody stated before investigation officer with regard to his forged signature and he kept mum. He further agitated that evidence of a hostile witness, which rings true, can be used in support of prosecution case. He added that verdict given by the Court below about the instant matter of a civil nature, is totally against the dictum of law and facts of the case, because tampering of revenue is purely an act within ambit of forgery, which amounts to criminal act. He further added that Court below fell in error to determine the case as a case of civil nature, because it is settled principle of law that when a Government servant tampers Government record, then it becomes a case of criminal liability and liable to be tried in the Court of criminal jurisdiction as well as Ehtesab Court. He maintained that the Court below kept aside the un-rebutted proof adduced by prosecution about quantity of complainant's land, which was reduced after tampering revenue record. He contended that if examination-in-chief of a witness is not cross-examined, then the same goes against accused. He agitated that veracity of witness will be deemed as admitted correct in light of precedent case titled Wazarat Hussain v. Nazir Akhtar and another 2010 PCr.LJ 1567. The learned DCP contended that some important points were agitated by prosecution in arguments; however, the Court below did not appreciate the same in the impugned judgment. He finally contended that the Court below while acquitting accused- respondent of the charges wrongly extended benefit of doubt; therefore, by accepting the instant appeal and setting aside the impugned judgment dated 29.02.2012, respondent-accused may be convicted and sentenced under offences mentioned in the reference.
Conversely, Mr. Shujaat Ali Rathore, the learned Counsel for respondent-accused submitted in written arguments that his client is Patwari in Revenue Department, against whom, a Reference was filed before Ehtesab Court on 04.12.2007. wherein, allegation of tampering and establishing a new survey number was levelled against him; however, the Court below acquitted his client of the charges, vide the impugned judgment dated 29.02.2012, against which, the instant appeal was filed by Ehtesab Bureau in year 2612, He added that accused-respondent is suffering agony of trial for the last 12 years in a non-committed crime, hence, deserves acquittal. He contended that despite sufficient time, prosecution could not prove its case without doubt and prosecution evidence is suffering from contradictions; therefore, Court below while not finding standard evidence of prosecution, correctly delivered its verdict. He agitated that prosecution levelled allegation of tampering record against his client, whereas he was not posted as Patwari in the concerned constituency; hence, stance of prosecution is doubtful. The learned Counsel maintained that Investigating Officer, Muhammad Feroze, neither levelled any specific allegation against accused nor an opinion about his signature was obtained from any expert; hence, entire investigation is doubtful and unreliable. He added that documentary and oral prosecution evidence, due to severe contradictions, is unreliable and insufficient to award punishment to accused; hence, the impugned judgment was delivered in right direction. He contended that prosecution by exceeding its powers confiscated Service Book of accused, whereas a Service Book of an employee could not be kept confiscated by Ehtesab bureau for a longtime; therefore, an order may be passed to release the same.
He finally submitted for dismissal of appeal.
6. We have given our dispassionate thought to the written arguments of the learned Advocates for parties and minutely gone through record of the case.
7. The case, as per complaint of Haji Muhammad Ghayas, against Muhammad Shabbir Farooqi, respondent- Patwari, was that land survey No.23, situated in village Kalali, Tehsil Haveli, was in ownership and possession of complainant; however, respondent-Patwari, made tampering in the revenue record and established a new survey No.23/1 in the name of his father, Lal Deen, and thereafter, the said land was entered in record as crown land, due to which, complainant suffered irreparable loss.
8. The trial Court made observation that "Survey No.23 is a crown land as it is purely the matter of civil nature and if some verdict is given by the Ehtesab Court, it would prejudice the rights of the parties which can be best determined by Civil Court or Revenue Court". The aforesaid verdict of trial Court reveals that on the one hand disputed land is declared crown land and on the other hand matter is declared of civil nature, whereas, according to the contents of complaint, main grievance of complainant was that land survey No.23, situated in village Kalali, Tehsil Haveli, was in his ownership and possession; however, respondent-Patwari, who was performing duty as 'Muharrar'/'Tehvildar' settlement, made tampering in the revenue record and established a new survey No.23/1 in the name of his father, Lal Deen, and thereafter, the said land was entered in record as crown land, due to which, he suffered irreparable loss. In view of the aforesaid stance of complainant, it was to be determined by the trial Court that whether respondent-accused was holding the aforesaid post of 'Muharrar'/'Tehvildar' during settlement or record was in his custody and whether tampering in record was made by him? Therefore, we deem it necessary to discuss evidence of parties for arriving at just and proper conclusion. Haji Muhammad Ghayas, P.W., deposed in his statement dated 24.08.2009, that land measuring 38 kanals 18 marlas situated in village Kalali, was in his ownership and possession. He and accused are co- sharers. In year 1986-87, settlement was conducted and he received a 'Khatooni' of survey No.23, measuring 38 kanals 18 marlas, in which, the same number and land was entered in his name. Thereafter, when he received copy of 'Jamabandi', he found that land measuring 10 kanals and 01 Marla was less from his ownership. Later on, he procured copy of 'Misl-e-Haqeeat' of father of accused and found that land measuring 10 kanals 01 marla was entered in the name of father of accused by establishing a new survey No.23/1. He deposed that on query, he was informed that during settlement, accused was 'Tehvildar '/' Muharrar' record, who committed the said illegal act. He further deposed that father of accused admitted that the aforesaid act was done inadvertently and he would get correction of the same and in this regard an 'Iqrarnama' was also written. Qazi Muhammad Tayyab, P.W/Technical Expert, deposed in his statement dated 14.09.2009, that upon the complaint of Ghayas, he inspected record and his complaint in light of record was found correct. He further deposed that he sent for record, according to which, during settlement survey Nos.24, 24/1 and 23, were measured and 'Kham-Khatooni' No.207, was issued and according to said 'Khatooni', land of survey No.23 was 38 kanals 18 marlas, with kind of land namely, Mayani, Rakkar, Kap, Banna etc and Kotha Ghair-Mumkan, was entered therein; however, later on, a new survey No.23/1, measuring 10 kanals 01 marla, with kind of land Banjar-Qadeem, was established in ownership of Lal Deen, father of accused-Patwari. Khalil Ahmad Aqeel, P.W, is witness of recovery, who deposed that Field Book, 'Khatooni' and Register 'Fard-Partal' were confiscated by police and recovery memo Exh.PG was prepared in his presence and recovered record was given on his superdnama Exh.PH. Muhammad Ameen Shah, P.W/retired Girdawer, deposed in his statement dated 03.03.2010, that in settlement of 1987-88, he performed duty as Girdawer, whereas Abdul Hameed, was posted as Patwari regarding village Kalali, who wrote Field Book. He further deposed that posting of accused as 'Muharrar' during settlement is possible; however, he saw him as 'Muharrar' in year 1990-91. He stated that Kham-Parcha-"Khatooni' Exh,PA, contains survey No.23, measuring 38 kanals 18 marlas, which was mentioned under cultivation of Muhammad Ghayas etc, and Field Book Exh.PG/12 at page 5 carries entries as survey No.23, measuring 27 Kanals 18 marlas and Exh.PG/09, contains entry about survey No.23/1, measuring 10 kanals 01 marla. He deposed that Field Book Exh.PG/2 at page 5 contains his signature Exh.PG/14 as well as in column of Kaifiyat correctly. The aforesaid witness was declared hostile; hence, cross-examined by DCP.
During cross-examination, he admitted correct that in Register 'Fard-Partal' Exh.PG/4, new survey number was not inserted. He stated that new survey number was established by Patwari and it was correct that new survey number was established by Abdul Hameed, Patwari. He further admitted that 'Kham-Khatooni' was prepared in light of previous record. Abdul Hameed, P.W/Patwari, deposed that in August, 2007, he was posted as Girdawer Kahuta, when Ehtesab Bureau recovered record through recovery memo Exh.'PG' and his signature Exh.'PG/10', upon the aforesaid recovery was correct. He further deposed that in year 1986-87, he was performing his duty as Patwari and conducted settlement of village Kalali, and also issued 'Kham-Khatooni' Exh.
PA, pertaining to survey No. 23, which contained his signature. He also deposed that survey No.23 contained land measuring 38 kanals 18 marlas, which was in possession of Muhammad Ghayas, etc. He further deposed that officials of Ehtesab Bureau also inspected record like Field Book, 'Khatooni', Aks-Latha and Masavi. He stated that from survey Nos.18 to 25, two papers were changed/ replaced and in Register 'Fard-Partal', entry of new established survey No.23/1, was not present. He further stated that during settlement, accused was performing his duty as 'Muharrar' revenue settlement and entire record of Tehsil was kept in custody of 'Muharrar', who was also 'Tehvildar' record; hence, after conducing settlement, he, as per instruction of Tehsildar, submitted record to 'Muharrar' revenue, accused. He stated that revenue record of village Kalali had destroyed in 1947; therefore, land under possession of a possessor, was entered in Field Book according to measurement. He further deposed that custodian of record in Tehsil was 'Muharrar' settlement, with whom record was filed. He also deposed that benefit of tampering in record goes to accused; therefore, alleged tampering was made by him. Muhammad Feroze, P.W/Director Investigation Ehtesab Bureau, corroborated his investigation as well as Exhs.'PH', 'PG/5' ,'PE' , 'PG/4', 'PA', 'PK', 'PE', 'PC', 'PD', 'PJ', 'PI' and 'PL/2'. He deposed that accused was found involved in offences mentioned in reference. He admitted confiscation of relevant record. However, he stated that he did not obtain handwriting expert report in the case. After recording prosecution evidence, Muhammad Shabbir Farooqi, accused-respondent was examined under Section 265-D, Cr.P.C, on 11.01.2008, who denied the guilt and stated that he was 'Muharrar' in the office of Tehsildar. He further stated that during settlement Abdul Hameed, was performing his duty as Patwari. He deposed that disputed land was crown land and still carrying same status. He also got recorded his statement in defense, dated 04.12.2011, wherein, he deposed that during settlement of 1986-87, he was posted as 'Muharrar'
Tehvildar, whose duty was to receipt and dispatch dock. He stated that land under dispute was crown land. In cross-examination he deposed that he remained posted as 'Muharrar/ 'Tehvildar' settlement during the period from 1983 to 1993 and disputed land was entered in the name of his father by Patwari. He deposed as under:- {{URDU TEXT}} He also admitted in cross-examination that before overwriting 'Khatooni' Exh.'PA', was containing land measuring 38 kanals 18 marlas. He deposed as under: - {{URDU TEXT}} He further admitted correct that land survey No.23, measuring 38 kanals 18 marlas was shown inserted in 'Kham Parcha-Khatooni' Exh.'PA/2'. He stated as under:- {{URDU TEXT}} He also produced copy of Khasra-Girdawari of survey No.23/1, dated 22.07.2006, which shows land as crown land under the kind of Banjer-Qadeem, whereas a perusal of Field Book reveals that survey No.23/1 was inserted therein in name of Lal Deen, father of accused; however, in Register of 'Fard-Partal' the said survey number was not present. Thus, irrespective of the fact that whether disputed land was under the possession of complainant or was a crown land, it was proved on record that through tampering a new survey No.23/1 was inserted in Field. Book in name of respondent's father and as per admission of respondent, supra, that he remained posted as 'Muharrar'/'Tehvildar' Settlement during the period from 1983 to 1993, it can, therefore, safely be concluded that during the aforesaid period he was performing duty as 'Muharrar'/'Tehvildar' settlement hence, record was under his custody and he made tampering therein by inserting new survey No.23/1; thus, in such a situation opinion of handwriting expert was not required to prove guilt against accused-respondent. It is important to observe here that if respondent was not 'Tehvildar' of record during the aforesaid period, then he should have specifically pin point the name of such 'Tehvildar' in his statements; however, he failed to do so and simply stated that Girdawer was 'Tehvildar'. Moreover, according to the contents of tampering made in revenue record, it is evident that respondent was beneficiary of the said tampering indirectly; however, he tried to implicate the concerned Patwari Abdul Hameed, by deposing that he Established survey No.23/1, during settlement, whereas the aforesaid Patwari, clearly deposed that accused was performing his duty as 'Muharrar' revenue settlement and entire record of Tehsil was kept in his custody, who was also 'Tehvildar' record; hence, after conducing settlement, he, as per instruction of Tehsildar, submitted record to 'Muharrar' revenue, accused.
Thus, after evaluating evidence of parties, we arrive at conclusion that prosecution has proved its case against accused-respondent. In such state of affairs, by setting aside the impugned judgment accused-respondent is liable to be punished under law.
9. The crux of above discussion is that by accepting the instant appeal, accused-respondent is convicted and sentenced to 01 year rigorous imprison-ment under section 5(2) of the AJ&K Prevention of Corruption Act, 1950, 01 year R.I each under sections 409, 467 and 468, A.P.C and 01 year R.I. under section 11 of Ehtesab Act, 200.
All sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. is extend to convict-respondent. The convict is taken into custody, who shall be handed over to the concerned Prison Authority District Bagh, for suffering punishment.