Asifullah son of Zeewar Khan, resident of Tela Bund, Tehsil Peshawar was tried in the Court of Special Judge, A.C.E., N.W.F.P. Peshawar on a charge under Section 420 P.P.C. Read with Section 5
(2) of the Prevention of Corruption Act, 1947 registered against him vide F.I.R. No. 10 dated 6-5-1982 of P.S., A.C.E., Peshawar. He was found guilty and sentenced to undergo 7 years R.I. And to pay a fine of Rs.50,000/, in default of payment of fine to undergo further one year S.I. Vide judgment dated 6- 7-1986. Aggrieved of his conviction and sentence, the convict has come up on appeal to this Court.
2. Briefly stated, the facts of the case are that Lal Akbar (P.W.10), on receipt of complaint Ex.PW 5/1 after conducting secret probe, requisitioned the services of Mr. Nazar Gul, Naib Tehsildar as a Raiding Magistrate and went to the Office of Daftar Kanungo where Mohammad Khurshid produced before him a photostat copy of mutation No. 3900 dated 13-12-1979 which he took into possession vide recovery memo. Ex.PW 10/2 in presence of the Raiding Magistrate and Mir Dad Khan, S.I. And other marginal witnesses to the recovery memo. Thereafter they proceeded to the Office of District Health Officer, Peshawar where in presence of the Raiding Magistrate the record Ex.PW 1/1 to Ex.PW 1/7 was taken into possession vide recovery memo. Ex.PW 1/8. Thereafter the S.D.O., Building Division, Peshawar accompanied them to Basic Health Unit, Tela Bund and pointed out the said Basic Health Unit to them which was constructed in the property comprising of Khasra No. 993-994 allegedly owned by Hamiduddin father of Mst. Gulzarina (complainant). After completion of the proceedings, the Raiding Magistrate prepared his report Ex.PW 10/3 and handed over the same along with the connected documents to Lal Akbar (PW 10) for further necessary action. On return to the Police Station A.C.E., Peshawar, PW.10 (Lal Akbar) registered the case vide F.I.R. Ex.PW 10/4 and then entrusted the investigation to Mir Dad Khan S.I.
3. At the close of the prosecution evidence the appellant was examined under section 342 Cr.P.C.
And thereafter he was convicted and sentenced as mentioned in the earlier part of this judgment.
4. I have heard the learned counsel for the appellant and for the State at length and have also perused the record of the case. It is an admitted fact that the complaint was lodged after a delay of more than two years which, in my view, shatters the case of the prosecution. It is also an admitted fact that the appellant who is the sole owner of the land in dispute had given 5 kanals of land to the Provincial Government for the construction of Basic Health Unit without consideration and a mutation with regard to this piece of land was also attested in favour of the Provincial Government which still holds the field. This property is situated in Khasra Nos. 9292/998/1 which belongs to the appellant to the exclusion of any body. It has been clearly mentioned in the said mutation that the land has been given for Basic Health Unit without any compensation by Asifullah.
The argument of the learned counsel for the appellant that when it is written in the mutation as "without any compensation" then the question of payment of Rs.25,000 as compensation therefore does not arise, holds water. I have perused the record and have not come across any evidence produced by the prosecution at the trial as to what kind of fraud was played by the appellant. It is also an admitted fact that the construction of the Basic Health Unit took about two years to complete but, strangely enough, neither the complainant nor any body else filed any complaint /application to the effect that the land on which Basic Health Unit was constructed belonged to them and not to the appellant. There is also no application or any other documents on the file to show that the appellant had demanded Rs.25,000 from the Health Department. Besides this, the payment of Rs.25,000 has also not been proved by the prosecution for the reason that the signature or thumb-impression of the appellant was not taken by the prosecution and sent to the Handwriting Expert for comparison. As such, all ingredients of Section 420 PPC, in my view, are lacking in the case in hand.
5. There is also one other aspect of the case advanced by the prosecution that the appellant has pointed out other property situated in Khasras Nos. 993, 994 and 995 at the time of site inspection as stated by Ihsanullah Khan, S.D.O. (PW 9) but I may point out here that there is no evidence on the record to corroborate the statement of Ihsanullah Khan (PW 9). On the other hand, the prosecution evidence has knocked down its own case because Ihsanullah Khan (PW 9) in his cross-examination has clearly stated as under:-- "The possession of the property in question was handed over to us by the Health Department. At the time of digging out the foundation we had not consulted the mutation or other revenue documents nor I had sent for the Patwari or other revenue officer."
He further clarified at the end of his cross-examination in the following words:- "Taking over the possession of the spot correctly is the duty of the Health Department or other concerned Department."
Ihsanullah Khan (PW 9), a witness of the prosecution, has also admitted in his statement that Health Department gave them the possession of the land for construction of the Basic Health Unit and further admitted that it was the responsibility of Health Department to hand over possession to him. The most important statement on the record is the statement of Mohammad Zarif Patwari (P.W.8) who clearly contradicted the S.D. 0. Concerned and stated that he was not sent for to demarcate the land. Another witness of the prosecution, namely, Noor-ul-Haq, Tehsildar (PW 13) absolutely shattered the prosecution case when he stated that Khasra No. 9292/998/1 was a big khasra number and out of this a 'Tatima' was carved out and a specific portion was given for Basic Health Unit without consideration. As regards the alleged payment of Rs.25,000, there is a big degree of negligence on the part of the Department for making payment of a huge amount without seeing the mutation attested in favour of the Health Department. The appellant has also produced evidence in his defence which clearly proves that the appellant was not present at the spot on the day when possession was taken over by Ihsanullah Khan, S.D.O. (PW 9). There is also not an iota of evidence on the record to show that Mst. Gul Zarina complainant (PW 5) has said that it was Asifullah appellant who deceived and handed over her property to the Department.
Likewise, Khawari Badshah (PW 4) and Zarghun Sher (PW 6) have also riot uttered a single word against the appellant that he received the money on their behalf, to bring the case in the ambit of section 420, P.P.C. Strangely enough, Lal Akbar Inspector (PW 10) has categorically admitted in his cross-examination that the name of Mst. Gul Zarina complainant does not appear in the revenue papers and she does not say anything about the appellant which also goes a long way to prove that the ingredients of section 420, P.P.C.I are missing altogether in the case in hand. In Prithiraj Bacha v. The State PLD 1959 Dacca 88 their Lordships have observed as under:- "In order to constitute cheating it must be established that some one is made to part with some property on the promise of another to return something in lieu thereof which the latter had no intention to give. The initial intention to deceive, therefore, must be established in order to justify conviction for cheating.
The mere fact that the accused deny the transaction at the trial and refuse to return the money does not necessarily show that they had a criminal intent from the beginning. Their denial may merely amount to the usual mistaken attempt to protect themselves from the result of the prosecution."
There is yet another authority reported as M. Sharif Asghar v. The State PLD 1959 (W. P. ) Lah. 238 wherein the following observations have been made:- "Cheating-- Element of deception essential--Receiving part price of timber blocks supplied to Government Authority as being of specified quality, which Government's experts were entitled to reject after check, accused doing nothing to misrepresent quality of blocks-- Held, not to fall under cheating."
In (Col.) F.S. Wahid-uddin v. The Crown PLD 1956 (W.P.) Kar. 489 his Lordship has held what follows:- "Delivery of property independently of deception employed---Does not amount to cheating.
To establish an offence of cheating the prosecution has to establish not only deception but also that deception induced the person deceived to deliver any property to the accused."
Lastly, the authority which is applicable to the facts of the case in hand is Zahoor Hussain v. The State 1984 P Cr. L J 2975 wherein it has been observed as under:- "Accused not inducing any one to part with property---Prosecution failing to prove ingredients of offence punishable under section 420, P.P.C.--Accused given benefit of doubt and acquitted."
6. The net result of the above discussion supported by the authorities cited at the Bar is that the prosecution has miserably failed to prove the charge under section 420 PPC read with section 5 (2) of the Prevention of Corruption Act, 1947 against the appellant beyond any reasonable doubt, the benefit of which must go to the appellant alone. I would, therefore, accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge levelled against him. He shall be released forthwith if not required in any other case.