On 25th February, 1978 Muhammad Shabbir, respondent, filed a writ petition in this Court which was registered as W. P. 270-R-78. In this petition he inter alia alleged that consequent upon an auction he had be--come the transferee of a plot. Bearing No. B-V-6-S-10-A and situate in Takia Masoom Shah, Gujranwala, nevertheless, despite the issuance of a P. T. O. In his favour some unknown person had fraudulently and through misre--presentation filed a C. H. Form. In respect of the same plot ; after that the subordinate officials of the Settlement Department destroyed the record with regard to the transfer in his favour and had included the plot in question in Settlement Scheme No. 9.So that it could be transferred once again. He also named two persons who were trying to get the plot under the said Scheme. On these allegations he prayed for the issuance of a direction to the Settlement Authorities not to re-allot the plot in question to the persons named in the petition.
Together with his petition he filed two photostat copies ; one of these was the reproduction of the certified copy of the relevant page from Register CSC-F, also known as the Record of Permanent Transfers and the other was the reproduction of a 'true copy' of the same document: He also filed an affidavit in which he reiterated the allegation a made in the main petition.
2. This writ petition came up in motion before me on 26th February, 1978. On that day I sent for a report from the Deputy Settlement Commis--sioner, Gujranwala, about the circumstances under which the plot in question was proposed to be retransferred to persons other than the respondent when a P. T. D. Had already been issued to him. The said officer submit--ted his report in due course. In his report he stated that the plot in ques--tion did not exist in the survey or property tax records and that it had never been put to auction by his Department. He also stated that the document of which the photostat copies had been filed with the writ petition was never issued by his Department and that the said copies were forged documents.
3. On receipt of the above .Report I issued a notice to the respondent why he should not be prosecuted for filing forged documents in this Court. To begin with, he disputed the correctness of the report submitted by the Deputy Settlement Commissioner and even filed an affidavit in support of his challenge, but, later when at his request the Deputy Settlement Com--missioner appeared in Court his counsel made a statement that he did not wish to press the petition. Consequently, the writ petition was dismissed. But as the photostat copies appended by him with his writ petition appeared prima facie to be forged documents and it also seemed that the affidavit filed by him in the Court contained false assertion I thought it was in the interest of justice that he should be prosecuted for the relevant offences under the Pakistan Penal Code. Accordingly, I have tried him myself in accordance with the provisions of section 476 of the Code of Criminal Procedure, as amended by the Law Reforms Ordinance, 1972.
4. At the trial the respondent was charged with offence under sec--tion 471, read with section 465, and section 193 of the Pakistan Penal Code. The gravamen of the charges against him was :-
(i) that he in support of his writ petition fraudulently and dishonestly used as genuine two documents, that is, Exh. P/1 and Exh. P/2, with the knowledge that these were forged documents ; and
(ii) that in the affidavit (Exh. P/3) which he filed in support of his writ petition he made statements to the effect that the plot in question had been auctioned in his favour and that the said auction been confirmed by the Additional Settlement Commissioner and that when swearing the said affidavit he knew that these statements were not true.
5. The respondent pleaded not guilty to the charges against him. He did not deny that he had filed the documents (Exhs. P/1 and P/2) and, the affidavit (Exh. P/3) with his writ petition but stated that he did not know that they were forged or false. He alleged that he had been a victim of fraud. He stated: "I was in possession of the property in question. Nobody asked me why I was occupying it. About 2 years ago I went to the office of the Deputy Settlement Commissioner at Gujranwala and gave infor--mation that I was in possession of the property. Iqbal Chughtai met me in that office. He came to the spot and surveyed the said property. He gave the property a number and asked me to see him on the next morning in the office. I went to his office on the follow--ing morning. He told me that I could get the property in dispute. I asked him about the procedure. He said that he would charge Rs. 5,000 and then hand over the transfer papers to me after 8 days. I gave him the money.
On 12th April, 1972 be supplied me with a copy. One Aziz also applied for the transfer of the same property under Scheme No. IX. I was summoned in connection with that application. I produced the copy given to me by lqbal Chughtai before the officer. They were all astonished when I produced the copy. I was asked who supplied me with that copy, I gave the name of lqbal Chughtai. In the meanwhile I filed a writ petition. When I came to attend. The hearing of the writ petition the Deputy Settlement Commissioner and the other staff of the Settlement Officer met me. They all asked me to withdraw the writ petition and assured me that they would give me another plot. I was also given a cheque for Rs. 550 by lqbal Chughtai. I encashed this cheque which was drawn on the National Bank of Pakistan, Gujranwala. When I filed the writ petition I did not know that the said documents were forged. I have sworn the affidavit under a bona fide belief that the said docu--ments were genuine."
He examined two witnesses in his defence.
6. There can be little doubt that the documents whose copies the respondent had filed with his writ petition did not exist at all. In this context I have before me the statements of Mr. Azhar Hussain (P.
W. 1) who was Deputy Settlement Commissioner in Gujranwala as well as of the two officials of his Department who were in possession of the relevant record, namely, Ahmad Ali (P. W. 2) and Muhammad Iqbal Chughtai (P. W. 3): It appears from their testimony that the plot which the reason--dent claimed to have purchased at an auction did not find any mention in the record of the Department, was not included in the lists of the proper--ties proposed to be auctioned and was never put to auction. Ahmad Ali (P. W. 2) who brought the relevant record at the time of giving his evi--dence also stated that the various references to the registers maintained by the Department in the copies (Exhs. P/I and P/2) were fictitious or false Mr. Azhar Hussain (P. W. 1) and Muhammad lqbal Chughtai (P. W. 3) disowned the signatures on (Exh. P/1) which purported to belong to them. On his part the respondent did not make any effort to show that the documents of which Exh. P/1 and Exh. P/2 were copies as a matter of fact did exist. I. Can, therefore, take it as established that Exhs. P/1 and P/2 are copies of a non-existent document and were thus forged documents.
7. In view of the above position so far as the charge under sec--tion 471, read with section 465, of the Pakistan Penal Code is concerned the only question which requires serious consideration is if at the time of filing the copies (Exh. P/1 and Exh. P 2) with his writ . Petition the respondent knew that they were forged. Documents. In this regard it is to be observed that these copies specifically mentioned that the transfer of the plot was based upon an auction in which he had turned out to be the successful bidder. It was not his case that any auction was held in respect of the plot in question or that he had taken part in it. On the other hand his plea at the trial was that he was not aware of these recitals in the copies in question in account of his being an illiterate person. It is difficult to accept his explanation for, both in his writ petition and in the accompanying affidavit (Exh. P/3) he took up the definite position that he had obtai--ned the plot in question through an auction. He would not have done so if he had not been aware of the mode of transfer mentioned in the copies in question. I am, therefore, satisfied that he was fully cognizant that the said documents contained false recitals at least in respect of the mode of transfer. This circumstance by itself is sufficient to establish that when he tendered them in Court alongwith his writ petition he knew that these were forged documents.
8. The respondent alleged at the trial that he bad been deceived by Muhammad Iqbal Chughtai (P.
W. 3) who accepted an amount of Rs. 5,000 from him for issuing the copies in question. In support of this version he relied upon the testimony of Syed Shaukat Hussain (D. W. 1) and an Accountant from the National Bank of Pakistan, Civil Lines, Gujranwala. Syed Shaukat Hussain (D. W. 1) stated that he had met the respondent near the bar room in the High Court premises and had on his asking accompanied him to the Court where his writ petition was pending. He found Iqbal Chughtai (P. W. 3) and Ahmad Ali (P. W. 2) present there. Iqbal Chughtai (P. W. 3) asked him to prevail upon the respondent to withdraw the writ petition and that in return he would ensure that the plot in question would be transferred to the respondent. Two months later the respondent and Iqbal Chughtai (P. W. 3) again visited his shop in Lahore when Iqbal Chughtai (P. W. 3) admitted that he had given a true copy of the record to the respondent but explained that the other party who was interested in the transfer of the plot was very influential and he got the original record destroyed. At the instance of the respondent he accompanied him to the office of the Settlement Commissioner for obtain--ing permission to file a belated transfer application. Later, he accompa- -nied the respondent to Gujranwala and met Iqbal Chughtai (P. W. 3). On this occasion Iqbal Chughtai (P. W. 3) offered that he should be cited as a witness in the High Court and that he would satisfy the Court abut the genuineness of the documents in question. Iqbal Chughtai (P. W. 3) also told the respondent that he bad kept the receipt for the amount paid to him by the respondent at his house and stated that he had given a cheque for a sum of Rs. 550 to the respondent.
9. It is difficult to take the testimony of Syed Shaukat Hussain (D. W. 1) seriously: Although he tried to give the impression that be was a casual acquaintance of the respondent there is little doubt that he is closely connected with him as would appear from the fact that he stood surety for him in these proceedings. It is also to be noticed that when Iqbal Chughtai (P. W. 3) appeared in the witness-box he was not questioned at all about his meetings with Syed Shaukat Hussain (D. W. 1) of the state--ments which he allegedly made before him. In the circumstances I am not prepared to place any credit upon his testimony.
10. The second witness for the respondent was an accountant from the National Bank of Pakistan, Civil Lines, Gujranwala. His statement does indicate that there were some dealings between the respondent and Iqbal Chughtai (P. W. 3) and that during the course of these dealings some money passed between them. However, his testimony is entirely insuffi--cient to lead to the inference that the respondent was unware that the docu--ments (Exhs. P/1 and P/2) were copies of non-existent documents.
11. In view of the above discussion I am of the opinion that while filing the writ petition the respondent knew that the copies which he was tendering were forged documents. Thus, he did commit an offence punishable under section 471, read with section 465, of the Pakistan Penal Code.
12. Exh. P. 3 is the affidavit which was fled by the respondent with his writ petition. It was sworn by him before Muhammad Gulzar (P. W. 4). In his statement at the trial he did not disown it but merely said that it was not false. The relevant portion of the affidavit reads as follows :- "that this plot was auctioned to the deponent vide order dated 17th July, 1972 of respondent No. 1 and later on the auction was confirmed by respondent No. 2 vide order dated 20th July, 1972 which is also mentioned in Annexure 'A' filed with the writ petition." It has already been shown above that the plot was never put to an auction. Quite obviously the recitals with regard to the auction in above abstract were untrue. Prima jack, therefore, the respondent would appear to have committed an offence under section 193 of the Pakistan Penal Code.
13. The learned counsel representing the respondent pointed out that the affidavit (Exh. P. 3), was not in the prescribed form inasmu ch as the verification at the end of this affidavit did not specifically state as to which of the paragraphs therein were true and correct to the knowledge of the respondent and which of the same were true and correct in his belief. He contended that in view of this position the respondent could not be convicted of an offence under section 193 of the Pakistan Penal Code. In support of this submission be referred to a decision of this Court reported as Manzoor Elahi v. Abu Bakar (1971 PCrLJ 1021). In this case a learned Single Judge held that an affidavit could not be considered legal unless the deponent while verifying its contents clearly specified which of the recitals therein were true to his knowledge and which of these were true to his belief and that unless this had been done no prosecution would lie under section ',93 of the Pakistan Penal Code even if subsequently some of the recitals were found to be false. In coming to this conclusion the learned Judge, amongst others, referred to the case of Aley Muhammad v.
State (PLD 1963 Dacca 166) where proceed--ings under section 193, ibid, were quashed for the reason that on account of the defective verification there was no proper affidavit before the Court.
In Emperor v. Lachmi Narain (AIR 1947 All 235) for the same reason a notice issued to a deponent of an affidavit for prosecution under section 193 was dischar--ged.
14. It thus appears that the weight of the authority is against the maintainability of prosecution on the type of the affidavit that is before me. I, therefore, acquit the respondent of the charge under section 193 of the Pakistan Penal Code.
15. For the reasons stated above I convict the respondent of an offence under section 471, read with section 465, of the Pakistan Penal Code and sentence him to suffer rigorous imprisonment for a period of 6 months. He shall surrender to his bond to serve his sentence.