' Criminal Appeal No, 45 of 1975. Filed by Muhammad Afzal and Criminal Appeal No, 108 of 1975 filed by Allah Loke are being disposed of together as they arise out of the same judgment.
2. Muhammad Afzal Patwari and Allah Loke Lambardar were tried by Special Judge, Anti- Corruption Lahore-I. Muhammad Afzal Patwari was convicted under sections 218 and 465, P.P.C.
And sentenced to undergo R.I. For six months on each count. Allah Loke Lambardar was convicted under section 218 read with section 109, P.P.C. And section 465, P.P.C. And sentenced to suffer R.I. For six months on each count. The sentences were ordered to run consecutively. Rahim Bakhsh filed complaint on 27-11-1973 against the appellants with the allegation that Mutation No, 968 dated 24- 2-.1969 in respect of exchange of his three Marlas of land situated in Khasra No, 160 had been forged and Allah Loke Lambardar identified another person as the complainant and this was intentionally done in order to put a loss to the complainant and give advantage to Qutba. It was further alleged by the complainant that he never exchanged his land with Qutba nor he was a party to this exchange mutation; that he filed a suit against Qutba (since dead) before the Civil Judge, Pasrur, who decreed it on 27-6-1970 holding that the said mutation was fictitious and based on fraud.
3. The complainant was examined as (P.W.1). He supported his complaint. Muhammad Shafi (P.W.2) stated that he knew Rahim Bakhsh complainant, who belonged to his village. Muhammad Bashir (P.W.3) stated that he had gone to Chawinda four/five years ago and in his presence, land of Rahim Bakhsh was transferred to Qutba. He added that Rahim Bakhsh complainant was not present then and some other person was produced in his place.
4. Both the appellants denied the allegation and stated that the mutation had been entered at the instance of the complainant and it was attested by the Revenue Officer in his presence. They explained their involvement for the reason that the complainant and Qutba fell out due to the cutting of the trees and the complainant filed a civil suit and got the mutation cancelled. They produced Muhammad Yusuf and Allah Rakha in defence, who stated that the mutation was attested in the presence of Rahim Bakhsh complainant.
5. I was taken through the impugned judgment. The learned Special Judge was of the view that it was for the appellants to prove their innocence. He had taken an erroneous view of law. It is contained in section 101 of the Evidence Act that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. It is provided in section 102 of the Evidence Act that the burden of proof in a suit or proceeding lies on that person, who would fail if no evidence at all were given on either side.
Section 103 of the Evidence A Act reads " the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. The burden of proving a criminal case is always on the prosecution/complainant and it does not shift to the accused. The accused were not required to prove their innocence and it was not for them to obtain the thumb-impression of the complainant and send it to the Finger Print Bureau for comparison with the mutation register. It was the duty of the complainant to summon the original register of mutation for comparison with his thumb-impression. He was required to prove that he had not thumb-marked the mutation register.
The offence was stated to have been committed on 24-2-1969. The complaint was filed with a delay to four years and nine months and there was no plausible explanation about the delay. The previous complaint was also filed with a delay of one year and eight months. The Special Judge was carried away by the decision of the Civil Court. The said decision could not legally be considered against the appellants as they were not a party to that decision. The complaint had been filed under sections 420/468, P.P.C. Offence under section 420, P.P.C. Was cognizable but no attempt was made by the complainant for the registration of the case. The complainant miserably failed to prove the case. Both the appeals are accepted. Muhammad Afzal Patwari and Allah Loke Lambardar are acquitted of the charges. They are on bail and are discharged of their bail bonds.