1. Appellants Bashir Baig and Ikramullah, alongwith four others, namely Munawar Ali. Gul Hussan, Badal Khan and Sher Muhammad, were tried by special Judge Hyderabad for offences under sections 420, 468 and 471 read with 109, P. P. C. Munawar Ali was Tapedar at the time of the commission of the alleged offence while all the other above-named persons were non- Government servants. The learned trial Judge by his judgment, dated 22nd April. 1978 convicted only Bashir Baig and Ikramullah of offences under sections 420, 486 and 471, P. P. C., while acquitted all the other four accused. Bashir Baig and Ikramullah were sentenced to R. I. For one and a half years and to pay fine of Rs, 10,000 each or in default of payment of fine to suffer R.
1. For nine months under each account. It was further directed that out of the fine, if recovered, accused Badal and Sher Muhammad shall be compensated fully or proportionately depending on how much fine is recovered. The two convicts namely Bashir Baig and Ikramullah have filed this appeal against their conviction and sentences. Bashir Baig died during the pendency of this appeal, but as the question of recovery of fine was involved, hence his legal heirs were substituted for this appellant.
2. The charge against the appellants was that they had, with the help of Munawar Ali Tapedar, manipulated forged documents in respect of 45/21 Acres of agricultural land situated in Deh Dilshad Diaro Taluka Sanghar and the land was sold to acquitted accused Badal and Sher Muhammad by sale-deeds registered before Sub-Registrar Sanghar on the basis of a forged power of attorney in favour of appellant Bashir Baig.
3. The land in question belonged to Inamullah Khan Kadri which he had purchased in 1964 from Mst.
4. Hajra. He had received information from one Abu Zafar about 2/3 days before 16th March, 1970 from acquitted accused Gul Hassan, a petition-writer at Sanghar, that the said land was about to be sold by registered sale-deed. Complainant Inamullah immediately made application to D. S. P.
5. Sanghar on 16th March, 1970 to the effect that on the basis of forged power-of-attorney, his land was being sold by registered sale-deed, hence action should be taken against the offenders. The D.
6. S. P. Put his endorsement on that application and forwarded it to sub-registrar Sanghar, but the latter, on the basis the alleged forged general power-of-attorney in favour of appellant Bashir Baig, registered sale-deeds in favour of acquitted accused Sher Muhammad and Badal for Rs, 13,000 and Rs, 18,000, respectively.
7. On 26th March, 1970 Mr. Inamullah Khan lodged formal report at Police Station Sanghar. The report was to be the following effect :- "I am an Advocate at Karachi and also practice at Rahimyar Khan where my family lives. I had purchased lands of which details are given below. From one Mst. Hajra Khatoon on 16th December, 1974 under the execution of the sale-deed registered at Karachi in the same date. Copy of which I herewith produce. Since then up-to-date I have not disposed of my above-mentioned lands to any person in any way. One Mr. Abu Zafar, Muhammad Mohsin Shah a relative of mine informed me at Karachi on 25th March, 1970 that one Bashir Baig, Munawar Ali Tapedar, Mehar Mangrio, All Shah Badal Laghari and the present Sub-Registrar at Sanghar in collusion among themselves have manipulated forged documents of my land as registered by disposing of land purchasing among them with the intention of fraudulently that on 16th March, 1970 at about 3 p. m. When parties were registering the forged documents of my land. He informed S. D. R. 0. Sanghar Division who gave in writing to him directing the Sub-Registrar at Sanghar not to register the documents which was alleged to be forged one. The same not on the application was handed over to Registrar in the office in the presence of one Raja Rustam Ali and others who were present there. He informed the Sub-Registrar about forged General Power-of-Attorney held by Bashir Baig, but Sub-Registrar refused to hear him. When I heard Mr. Abu Zafar, Muhammad Mohsin I at once left for Sanghar to register the case. I further state that I have not appointed any man as my General Attorney of my land to dispose of and mortgage etc. Nor I had authorised my relative Abu Zafar Mohsin only to manage my land. All the above accused have manipulated plan and prepared forged document of my land as I do not know the above accused uptil now.
8. Details of the land
1. S. No, 14/1-2, 15/1-2, 16/1-2, 77/4, 83/1 to 4, 84/2, 3, 4 {{TABLE TEXT}} Acres Ghuntas Total area 45 21 all {{TABLE TEXT}} situtaed at village Dilshad Dairo Tapo Kandiar Taluka Sanghar. Please investigate the case.
9. (Sd.) Inamullah Khan, Signature of the complainant.
10. It transpired during the investigation of the case that a bogus man personated himself as Inamullah Khan and executed power-of-attorney in favour of Bashir Baig appellant which was registered before Sub-Registrar Rahim Yar Khan on 9th March, 1970. The power of attorney was drafted by acquitted accused Gul Hassan who had also drafted two sale-deeds in respect of specific portions of disputed land in favour of accused Sher Muhammad and Badal. These persons had appeared before Sub-Registrar Sanghar and got the sale-deeds registered in favour of Badal and Sher Muhammad with the help of acquitted accused Munawar Ali Tapedar.
11. After investigation and completing other formalities the case was challaned before Special Judge Hyderabad, on 26th February, 1974 that is, after a period of four years of the alleged offence.
12. In support of the prosecution case evidence of Muhammad Inamullah (Exh. 2), Abu Zafar (Exh. 5), Sub-Registrar Sanghar Muhammad Khan (Exh. 7), Muhammad Siddiq (Exh. 11), Rafiq Ahmed Stamp Vendor of Rahim Yar Khan (Exh. 14), Hakim Ali Petition-Writer of Rahim Yar Khan (Exh. 15), Nasiruddin Sub-Registrar of Rahim Yar Khan (Exh. 17), Muhammad Ashraf Advocate of Rahim Yar Khan (Exh.
13. 18), Rustam Ali (Exh. 19), Mr. Shaikh Ahmed D. S. P. (Exh. 20), Muhammad Anwar Circle Officer A. C. E.
14. Sanghar (Exh. 21) and Mr. Atiq Ahmed A. C. E. Sanghar (Exh. 25), was recorded. The learned Trial Judge, on the basis of the above evidence, came to the conclusion that Munawar Ali tapedar was not involved in the forgery of the power-of-attorney and the sale-deeds. Acquitted accused Gul Hassan, Badal and Sher Muhammad were also found not guilty. Only the two appellants were found guilty of having forged power-of-attorney in the name of complainant and got the two sale- deeds registered in favour of Badal and Sher Muhammad before Sub-Registrar Sanghar.
15. The only point urged by Mr. A. S. Ansari, learned counsel for the appellants, is that since none of the appellants was a public servant nor it was proved that they had conspired with any public servant to commit a scheduled offence or abetted any public servant in the commission of such offence, hence the Special Judge had no jurisdiction to try the case under the Criminal Law Amendment Act, 1958. In support of this plea the learned counsel has relied on Dilawar Hussain v. The State decided by a learned Single Judge of Lahore High Court.
16. In the above case Dilawer Hussain (a non-public servant) was tried with two employees of Telegraph Department by a Special Judge for offences under sections 120-B and 471, P. P. C. The learned Special Judge acquitted the telegraph employees of all the offence but convicted Dilawer Hussain only of offence under section 420/468, P. P. C. On appeal to the High Court, it was held by the learned Judge that the Special Judge had no jurisdiction to try the appellant for scheduled offence under the circumstances. The conviction was, therefore, set aside, and it was further observed that since the trial had concluded after six years of the date of offence, the case was not fit for retrial.
17. In taking the above view the learned Judge had placed reliance on Saeed Hai v. The State in which a learned Single Judge of Karachi Bench of erstwhile West Pakistan High Court had acquitted the appellant, who was convicted by Special Judge under circumstances similar to those in the case of Dilawar Hussain, with the following observations :- "The words "when committed by any public servant as such or by any person acting jointly with or abetting or attempting to abet or in conspiracy with any public servant as such" in part (b) of Schedule to the Pakistan Criminal Law (Amendment) Act, 1958 show that an offence specified therein as a scheduled offence only when it fulfils either the following two conditions :-
(1) the offence should have been committed by a public servant ; or
(ii) if the offence is committed by any other person, then this person must have acted jointly with or must have abetted or attempted to abet, or acted in conspiracy with the public servant. Therefore, unless either of these two conditions are complied with an offence under section 420, Penal Code, 1860, cannot be tried by a Special Judge. The words "any offence" in section 6 (4) of the Pakistan Criminal Law (Amendment) Act, 1958, refer only to scheduled offences and if the aforesaid conditions are not fulfilled in respect of offence under section 420, P. P. C. Which is one of the offences specified in Part (b) or the Schedule to the Act, then the Special Judge has no jurisdiction to convict a person under section 420, P. P. C."
18. ' It was also held that since the accused had forced protracted trial for five years, the case was not fit for retrial.
19. The above cases are on all fours with the facts of the present case Both the appellants are non- public servants. They were tried for scheduled offences with co-accused Munnawar Ali, a public servant. The latter had been acquitted by the learned trial Judge, who had held that involvement of any public servant in this crime was not proved. Under these circumstances the Special Judge had no jurisdiction to try the appellants.
20. Consequently the appeal is allowed, the conviction is set aside and the appellants are acquitted of the offences they have been charged with. So far as Bashir Baig is concerned, he is dead, hence there is no question of his retrial. In this case F. I. R. Was lodged on 26th March, 1970. The case was1 2 challaned before the Special Judge after almost four years on 26th February, 1974 and the trial took further four years to conclude on B 22nd April, 1978. A further period of five years was consumed in this appeal. Thus, the fear of conviction remained hanging over the head of the appellant Ikramullah for almost a decade. The case is, therefore, no fit for retrial. 1977 P Cr. L J 917 PLD 1967 Kar. 768