The five appellants, namely, Muhammad Anwar, Civil Patwari, Circle Kalu Ghazi, Allah Din, resident of Mahmoodpur, Shabir Ahmad, Civil Patwari, Circle Ucha Jajja, Muhammad Anwar son of Alam, resident of Kalu Ghazi, and Nasrullah resident of Ucha Jajja, District Sialkot, were tried, along with the nine acquitted co-accused, for offences under sections 419/420, 467/468/109, P. P. C. By the learned A. D. M. Special Judge, Sialkot, who vide the impugned judgment dated the 3rd of May 1969, convicted Muhammad Anwar Patwari under section 467, P. P. C., with an award of to years' R. I., plus, a fine of Rs. 500 or further six months' R. I. In default of payment thereof while the other four appellants were found guilty of abetment under section 467/109, P: P. C., and were each sentenced to the same quantum of punishment. They have challenged their convictions and sentences in appeal before the High Court.
2. The prosecution case briefly is that all the five -appellants were closely associated inter se being members of the Ahmadia Sect and often pulled together. Shabir Ahmad appellant worked as a patwari during the consolidation operations of village Mahmoodpur and allegedly proposed superior land to Allah Din appellant at, the cost of Jalal Din P. W. 4. . Abdul Karim complainant who is also a patwari and at the relevant the was posted at village Sandhuan, District Gujranwala, held land in the neighbouring village Kalu Ghazi and on being approached by Jalal Din aforesaid helped him in filing an appeal which was decided in his favour. Although the person directly affected by the acceptance: of the appeal was Allah Din, appellant yet the role played by Abdul Karim antagonised the remaining four appellants as well who had made a common cause with Allah Din on account of their religious affinity. Accordingly they hatched a conspiracy at the tube-well of Nasarullah Khan appellant to wreak vengeance on Abdul Karim P: W. By forging a mutation of exchange of his superior land near the village Abadi with that of Muhammad Anwar appellant which besides being smaller in area was also of inferior quality. In furtherance of this on the 21st of February 1956, Muhammad Anwar Patwari entered mutation No. 15 (Exh. P. A). The relevant entry in the last column purports to show that the entry was made at the instance of Abdul Karim complainant himself and the fact was verified by Kathu Lambardar of a neighbouring village Jallowali who thumb marked the same. On the 6th of February 1966, Khadim Hussain, Girdawar P.
W. 18, checked the mutation and on the 7th of February 1966 Sh. Muhammad Yusuf Naib-Tehsildar P. W. 22, sanctioned the same without giving any indication of the place where it was done. In fact, the land shown to have been surrendered by Abdul Karim, complainant, did not exclusively belong to him but was shared with him by his sister Mst. Rabia Bibi,. P. W. 11 and his mother Mst. Rajan P. W.
13. A perusal of the proceedings, of attestation by the Naib Tehsildar clearly refers to the presence of Abdul Karim and to ladies before the Naib-Tehsildar as also to that of the other beneficiaries who were said to have been identified by Allah Din appellant, a Member of the Union Council Mahmoodpur. On the first page of the mutation there is a separate note in the form of a statement by Allah Din bearing also his thumb impression to the effect that he knew the parties, who had made statements, in his presence. Abdul Karim complainant, had no knowledge of this fraudulent exchange having remained away on duty in Gujranwala Distt. It was only on the 2nd of April 1966, when he visited his village on the, occasion of Eid that he learnt about this for the first the. On the 11th of April 1966 he filed an appeal before the Collector and it was not till the 25th of April 1966, that he lodged a report with Sub-Inspector Sardar Khan, Station House Officer, Police Station Satrah, who appeared as P. W.
24. The appeal filed by Abdul Karim was dismissed by the Collector on the 21st of June 1966, but his second appeal was accepted by the Commissioner Lahore Division, on the 11th of April 1966, whereby he cancelled the mutation. The case is now pending in the Board of Revenue, for final decision on the revenue side. 2-A. As a result of the police investigation, the five appellants, were sent up to stand trial along with none other acquitted co---accused.
3. The prosecution case rested on the evidence of conspiracy allegedly hatched at the tubewell of Nasarullah appellant, the evidence of non-appearance of Abdul Karim, his sister Mst. Rabia Bibi P.
W. 11, her husband Ghulam Rasul, P. W. 12, and Mst. Rajan mother of Abdul Karim P. W. 13, either before the patwari or before the Naib Tehsildar, and lastly of documentary evidence in regard to the entries and attestation of mutalion of exchange supported by the testimony of Kasim Hussain Girdawar P. W. 8-and Sh. Muhammad Yusuf, Naib Tehsildar P. W. 22.
4. At the trial, the position taken up by Muhammad Anwar Patwari was that he had entered the mutation at the instance of the parties and that the same was attested by the Naib Tehsildar when both the parties had admitted the transaction of exchange. He further explained that Abdul Karim had personally contacted him for entering the mutation as he (Abdul Karim) wanted to compensate Muhammad Anwar etc. For the inferior land which they had got during the consolidation, lest they filed an appeal against him. He further stated that on the following day Abdul Karim brought along with him Muhammad Anwar etc. The beneficiaries of the exchange, and himself got the mutation entered and attested. The case of Shabir Ahmad Patwari and Nasrullah Khan appellants was one of denial -simpliciter. Allah Din appellant admitted having identified the parties before the Naib Tehsildar and asserted that the mutation was correctly sanctioned. Muhammad Anwar son of Alam, the principal beneficiary of the exchange, reiterted the stand taken by Muhammad Anwar Patwari and stated that in order to dissuade him from filing an appeal Abdul Karim who had got his and consolidated near the village Abadi, had compromised with him and had voluntarily gm the mutation of exchange entered and attested. He asserted that the mutation was attested in the presence of all the persons concerned. No evidence was led in defence.
(3-A). Having placed full reliance on the testimony of as many as 24 witnesses produced by the prosecution; the learned trial Judge convicted the appellants as stated earlier.
4. The following contentions were raised before me on behalf of the appellants :---
(1) That there was no reasonable explanation of the delay in the lodging of the report with the police ;
(2) that the motive alleged was much to weak besides being unconvincing
(3) that the prosecution had failed to establish the offence of forgery to the satisfaction of legal requirements; reliance was placed in this regard on Shamsul Huda Khan v. Aminul Islam Chowdhury PLD 1951 Dacca 109 and Ali Akhar v. The State PLD 1958 Dacca 519 ;
(4) that the very basis of the alleged forgery namely, the hatching of conspiracy was doubtful ;
(5) that the mere entry by Muhammad Anwar Patwari without any indication of the accrual of wrongful gain to one party or loss to the other, did riot constitute forgery ;
(6) that the prosecution had failed to establish the identity of persons who had allegedly personated before the Naib Tehsildar ; and
(7) that the prosecution case rested mainly on the testimony of Sh. Muhammad Yusuf Naib Tehsildar P. W. 22, who, in the event of the mutation being a forgery, was himself one of the main accused, though not arraigned as such.
5. Before proceeding to deal with the contentions raised on behalf of the appellants, a few observations in regard to the mutation may not be out of place The opening sentence of the entry admittedly made by Muhammad Anwar Patwari on the 22nd of January 1966 gives a clear indication of additions and alterations. The word "or a'" occurring after "Abdul Karim" is obviously a subsequent addition made with a view to cover the presence of his sister and mother who were share-holders with him of the land in question. Secondly, Kathu Lambardar, who verified the transaction of exchange and appears to have thumb-marked the entry in token of its correctness belonged to village Jallowali whereas the land which was the subject-matter of exchange was in village Kalu Ghazi. Thirdly, Kathu Lambardar who normally in the above background. Would have been arraigned as a co-accused being a party to the alleged forgery was cited as a prosecution witness and was given up as having been won over. Fourthly, the Naib Tehsildar, who sanctioned the mutation in village Chaubara, appears to have taken meticulous care to avoid any reference to the venue of attestation which would also give an indication of his being privy to this shabby deal, if at all it Was so, inasmuch as it would be difficult to believe though not altogether inconceivable that where a patwari commits such a forgery he would not take the Naib Tehsildar into confidence and also hoodwink him running a great risk of being exposed, particularly when practising fraud on another patwari, an equally hard nut to crack.
6. Having considered the evidence on .The record in regard to the alleged conspiracy, I am clearly of the view that it is simply worthless and unconvincing being confined only to word of mouth of witnesses who are men of no consequence. The first witness on the point is Said Ahmad P. W. 1 He entered the witness-box on the 16th of October 1967 and stated that one year prior to the occurrence Allah Din took him to the tubewell of Nasrullab Khan and they sought his co-operation in getting a false mutation of exchange attested but he refused to be a party to this. Khushi Muhammad Lambardar P. W. 2 stated absolutely nothing and expressed his complete ignorance about the case. Muhammad P. W. 3 referred to the conspiracy at the tubewell of Nasrullah Khan appellant but stated that this happened to years prior to the Ist of February 1968, the date of his examination in Court. He made no reference to the presence of Said Ahmad nor could he give any specific reason for having gone to the tubewell of Nasrullah Khan. Inayat Ullah P. W., who was also examined on the 1st of February 1968, referred to the meeting at the tubewell of Nasrullah Khan as having taken place one and a half years earlier. He admitted being a supporter of Allah Din appellant. Strangely enough, none of these witnesses disclosed the alleged conspiracy either to Abdul Karim who was to be affected thereby or to anybody else before hand. No reliance can, therefore; be placed on this type of cheap and easily procurable evidence. The inevitable inference, therefore, is that the allegations of conspiracy do not stand established beyond reasonable doubt. Once this evidence is excluded, the conviction of Shabir Ahmad Patwari and Nasrullah Khan appellants against whom allegations are confined only to those of conspiracy would fall to the ground. Of course, an attempt was made on behalf of the prosecution to show that Shabir Ahmad had contacted Abdul Karim Patwari in Kot Ladha, District Gujranwala, as stated by Muhammad Fazil P. W. 9 and Muhammad Tufail P. W. 10 when Abdul Karim had allegedly advised Shabir Ahmad not to play in the hands of Allah Din, Nasrullah Khan etc., but it is neither relevant nor otherwise convincing. Equally worthless is the statement of Ibrahim p. W. 7, who tried to show that the appellants had sought his good offices to use his influence with the A. D. C. Before whom the consolidation appeal against Allah Din was pending. Even believed this statement does not advance the case of the prosecution as the mere existence of religious affinity between the appellants would to some extent justify their innocent interest in the case of Allah Din and the other appellants, which would not be per se sufficient to incriminate them so as to form a basis of their conviction. The convictions of Shabir Ahmad and Nasarullah Khan are accordingly set aside. They are on bail and stand discharged of the bail bonds. Fine if paid by them shall be refunded.
8. As regards the first contention pertaining to the infirmity of the motive, it may be observed that apparently it appears rather far-fetched that merely for having sympathised with an aggrieved person or having actually helped him in the engage--ment of a counsel for filing of an appeal Abdul Karim Patwari should have so much irked or piqued all the appellants that they should have gone the whole hog to injure his interest and to fraudulently deprive him of a valuable piece of land. Nonetheless, however, keeping in view the mentality of the rural community in this country where petty things are made points of prestige by the people giving rise to a host of complications, one would not be surprised if out of sympathy with and regard for Allah Din appellant his other co- accused and co-religionists could have joined hands with him. But in a case like this where the allegations are otherwise supported by documentary evidence, the firmness or infirmity of the alleged motive will be immaterial for the simple reason that the mere fact that Muhammad Anwar appellant stood to gain by the transaction of exchange having obtained thereby a comparatively larger piece of land in the immediate vicinity of the village Abadi would per se be good enough for him and his supporters to enter into this shady deal at the cost of Abdul Karim complainant.
9. As regards the next contention relating to the question of delay it was urged on behalf of the State that having learnt about the fraud for the first the on the 2nd of April 1966, Abdul Karim who had come only on a short visit being a Government employee certainly needed more the to know the details of the matter and in particular as to who were the persons who had personated in his place and that of his sister and mother. This satisfactorily explains as to why it took him about three weeks to approach the police. Admittedly, Abdul Karim filed an appeal on the 11th of April 1966 and to that extent promptly moved in the matter to challenge the validity of the mutation of exchange.
Even otherwise, therefore, nothing would turn upon the so-called delay in this case which is mostly based on docu--mentary evidence.
10. Having considered the statements of Abdul Karim P. W. His sister Mst. Rabia Bibi P. W. 11 and his mother Mst. Rajan P. W. 13 in the context of the doubtful features of the mutation proceedings detailed earlier, I am convinced that none of these three had actually appeared before Muhammad Anwar Patwari and the Naib-Tehsildar and the entry and attestation were made with a dishonest and fraudulent intention.
11. It has now to be seen as to what offence if any is made out in these circumstances and against whom. In fact the most important point which really forms the crux of the matter is as to whether the offence of forgery stands established to the satisfaction of its legal requirements. "Forgery" has been defined in section 463 as follows :- "Whoever makes any false document or part of document, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract,. Or with intent to commit- fraud or that fraud may be committed, commits forgery."
A close analysis of this provision would show that the to essential ingredients of the offence of forgery are, firstly the making of a false document and secondly doing so with a fraudulent intention to cause damage or injury to any person, to support a false claim or to cause a person to part with property etc. The expression "making a false document" has been further elaborated in section 464, P. P. C. Which reads as follows :- "464.-A person is said to make a false document.
Firstly-Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the- intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a the at which he knows that it was not made, signed, sealed or executed, or Secondly.-Who, without lawful authority, dishonestly or fraudulently by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the the of such alteration, or Thirdly.-Who dishonestly or fraudulently causes any person to sign, seal execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration."
The second and third parts are obviously irrelevant for the purpose of the present case. The first part deals with the dishonest or fraudulent execution of a document or part thereof with the intention of causing it to be believed that the document was executed by or by the authority of a person who had not executed the game within the knowledge of the executant thereof. It would thus be clear that in order to be a false document it must satisfy one of the to alternative conditions i.e., it must have been made: (1), with the intention of causing it to be believed that such document or part of document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority the accused knows that it was not so made, signed, sealed or executed, (2). Alternatively, that if the authority of the executant is not disputed, the intention, to cause it to be believed that it was made at a the at which the accused knows that it was not made, signed or executed.
12. It was not contended on behalf of the appellants, that the entering of a mutation was one of the official functions of the patwari for which no authority was needed by him. And since he had prepared the mutations a part of his official duty there being no question of misrepresentation of the person authorising the execution this essential ingredient of the offence was missing at the very outset ; the question of the being irrelevant. It was next contended that even otherwise the very basis of dishonest and fraudulent preparation of mutation. Namely the conspiracy allegedly hatched by the appellants was nothing but a cock and bull story and as such there would be no community of interest left between the appellants to indulge into such a fogery if at all it could be so established in view of the legal flaws pointed out above, namely, want of the essential ingredients. It was argued that the mere entry of a false mutation by the patwari could not constitute, a forgery as no wrongful gain or loss would accrue to anybody until such the as it was attested.
13. No doubt, the allegations of conspiracy which could have established the existence of a common intention between the appellant remain unproved as held earlier. It is on this account that Shabir Ahmad. Patwari and Nasrullah Khan, appellants, have been acquitted, but this would not entitle, Muhammad Anwar Patwari Allah Din, and Muhammad Anwar, the beneficiaries of the exchange, to benefit of doubt if otherwise allegations of forgery or abetment thereof are established against them. Similarly I see no force in the contention that an entry o a false mutation by the patwari would not constitute forgery merely because it would be incapable per se to cause wrongful gain to one party and loss to the other inasmuch as the law doe's not insist on the actual accrual of wrongful gain or loss and the mere intention to cause the same would be sufficient to constitute the offence in the case the existence of other ingredients is proved) Reliance may be placed in this regard on Chunku v. Emperor (AIR 1931 All. 258).
14. The main contention on the point of forgery raised by the learned counsel is, however, not without force. In order to satisfy the first requirements of forgery as defined in section 463, P. P. C.
Namely, the making of a false document defined in the next following section, the dishonest or fraudulent execution of a document should be with the intention of causing it to be believed that it is executed by or by the authority of a person who had not done it within the knowledge of the accused. Obviously, to make an entry of a mutation was the official duty of patwari who alone was competent to perform it and as such no question of authorisation arose in this regard. According to the procedure laid down in the Punjab Land Administration Manual, "the patwari records all acquisitions of rights reported to him or which he has reasons to believe to have taken place except those relating to land revenue assignments, and undisputed mutations of tenants-at-will "as soon as they are acted upon". Accordingly he has to make the entry of the mutation either on the report of the Lambardar or the party concerned or when he has reasons to believe that an accretion has taken place. If the Lambardar or the parties concerned fail to report the proposed alteration in the record of rights to him, he is competent to make an entry suo motu. The fact, however, remains that no authorisation is called for in this regard. Obviously "reporting." and "authorisation" have different connotations and cannot be synonymously used one for the other.
"Authorisation" has been explained to mean in the Oxford Dictionary as "giving formal approval or sanction and endow with authority." Thus there was no question however, that the entry was made by the Patwari to cause it to be believed that it was made by or by the authority of somebody else as question of authorisation was wholly irrelevant and the entry even though false had to be made by none else but the Patwari himself. Thus one of the essential ingredients, of making a false document is missing in the case from the very outset the other alternative condition relating to a false belief in regard to the the of execution being whole irrelevant. It is thus clear that even though the entry was false and was not made in a bona fide manner on the report of Kathu Lambardar one of the essential ingredients of forgery being non-existent the alleged offence does not fall within the mischief of section 466 or 46/ P. P. C. It was hell in Badan Singh v. Emperor (AIR 1923 Lah.
110) that every false or fabricated document, was not necessarily a forged document. The convictions of Muhammad Anwar Patwari under section 467, P. P. C., and Allah Din anal Muhammad Anwar son of Alam under section 467/10), P. P. C. Cannot, therefor, be allowed to stand.
15. The last question that falls for determination, however, is whether from the evidence on the record any offence at all is made out against the above mentioned three appellants. In my view, the case of Muhammad Anwar Patwari would fall within the mischief of section 167, P. P. C. Which reads as follows: "167. Whoever, being a public servant, and being, as such public servant, charged, with the preparation or translation of any document, frames or translates that document in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with the imprisonment of either description for a term which may extend to three years, or with fine or with both."
The community of, interest between Muhammad Anwar Patwari Allah Din and Muhammad Anwar son' of Alam on account of religious affinity as members of the Ahmadia sect can .Be easily appreciated, and people do sometimes in their over zealousness have recourse to illegal acts unmindful of the consequences. Having found it for a fact that Abdul Karim, his mother and his sister did not contact Muhammad Anwar Patwari or the Naib Tehsildar, that Allah Din had falsely claimed to have identified the parties before the Naib Tehsildar, including Muhammad Anwar son of Muhammad Alam, the beneficiary of the exchange, and the clandestine manner in which the mutation was got attested in village Chaubara without any reference to its venue in the mutation proceedings, which could only have been recorded when the mutation register was put up by Muhammad Anwar Patwari coupled with the additions and alterations, in the first entry made by him making it all the more doubtful, I am of the view that the offence under section 167, P. P. C., was fully brought home to Muhammad Anwar Patwari whereas Allah Din and Muhammad Anwar son of Muhammad Alam would be guilty of its abetment. It could perhaps be argued in favour of the patwari that entry was made by him in a bona fide manner on the report of Kathu Lambardar, who was, cited as a prosecution witness but was given up as having been won over. The significant fact that Kathu Lambardar belonged to another village and in all probability was a party to this shady deal coupled with the dubious circumstances, of the entire proceedings, detailed earlier would clearly rule out the possibility of the entry having been made in a bona fide manner in the ordinary course of official business.
16. This brings us to the question of sentence. Having carefully gone through the record of the case and heard the learned counsel for the parties, I cannot avoid an impression, that Kathu Lambardar who affixed his thumb-impression on the entry made by the patwari and the Naib Tehsildar were also a party to the fraudulent proceedings, but they were not arrainged as accused along with the appellants. The former did not enter the witness-- box while the latter supported the prosecution version. 'As such, I would exclude from consideration the statement of the Naib Tehsildar and while altering the convictions of the three appellants from sections 467 and 467/109, P.P.C., to those under sections 167 and 167/109, P. P. C., punishable with a maximum sentence of three years R. I. I would reduce the sentence of each to one already undergone which coupled with the agony of a protracted trial in the case and the dismissal of Muhammad Anwar Patwari from service should be good enough to meet the ends of justice in the circumstances. The fine if already paid, by them may be 'refunded. The appeal is partly accepted to the extent indicated above.