ALI HUSSAIN QAZILBASH, J.---The three criminal appeals filed by Fazalur Rehman s/o Ghulam Mustafa, Ghulam Mustafa s/o Haji Gul; Muhammad Akram Khan s/o Ghulam Hussain, Muhammad Akbar Khan s/o Dadan Khan; and Muhammad Khurshid and Abdur Rashid sons of Muhammad Sharif arise from the common judgment of a learned Single Judge of the Peshawar High Court dated 18-6-1989. These are being disposed of by the present judgment.
2. The facts given at the hearing are that one Nooruddin, a displaced person, was allotted land measuring 84 Kanals in village Kotehri, District Kohat. He died leaving behind Abdul Hameed alias Abadan, a son, Ma. Bakhshi, a widow and Mst. Bashiran, a daughter. The heirs of the allottee came to know that an area of 54 Kanals 7 Marlas out of the land allotted to their predecessor-in--- interest has been purchased by Fazlur Rehman s/o Ghulam Mustafa by Mutations Nos.4 and 45 attested on 11-6-1974 without their knowledge, fraudulently and collusively. They, therefore, filed a suit in the Court of Senior Civil Judge, Kohat on 5-2-1976 against Abdur Rashid, Abdul Hameed, Fazlur Rehman and Ghulam Mustafa for a declaration that they are owners of the suit land and prayed for the cancellation of the said mutations and in the alternative the prayer for possession was made. This suit was contested and ultimately vide judgment dated Z#-5-1978 the suit was decreed in favour of allottees. Fazalur Rehman and Ghulam Mustafa defendants filed an appeal in the Court of Additional District Judge Kohat which was dismissed on 15-10-1979. In the judgment the learned Appellate Court made remarks that the transaction impugned in the suit was as a result of fraud committed by the defendants and some Revenue officials. A copy of the judgment was sent to the Commissioner, Peshawar Division and the Superintendent of Police,-Kohat for registration of a criminal case against the. Appellants, which was accordingly done.
3. During the investigation it transpired that Abdur Rashid appellant has prepared a fictitious power of attorney on 20-5-1974. Purported to have been executed by the three heirs of Nooruddin empowering him to transfer their land situate in village Kotehri. The scribe of this power of attorney is Muhammad Khurshid who is brother of the aforesaid Abdur, Rashid appellant and is a petition- writer of Sargodha. This power of attorney was alleged to have been attested by a Notary Public of Sargodha on 21-5-1974 but the said Notary Public has since died,
4. On the basis of this Power of Attorney Abdur Rashid appellant informed Muhammad Akbar Patwari Halqa Kotehri to enter the mutation of sale in favour of one Abdul Hameed, as a result of which Mutation No.44 was enterd on 5-6--1974. On the same day another Mutation No.45 was also entered whereby the said Abdul Hameed was alleged to have sold the said land to Fazalur Rehman s/o Ghulam Mustafa. Both the mutations came up for attestation before Muhammad Akram, Naib-Tehsildar on 11-6-1974 and on the identification of Ajab Noor and Ghulam Mustafa appellants the same mutation was attested.
5. After the completion of investigation, appellants and Ajab Noor, the acquitted accused, were charged and tried under section 419/420, P.P.C. Read with section 5(2) of the Prevention of Corruption Act by the Special Judge, Anti --Corruption, N.-W.F.P. Peshawar. The prosecution in support of this case produced as many as 9 witnesses. As against that the appellants and Ajab Noor, the acquitted accused, in their statements under section 342, Cr.P.C. Denied the charge. The trial culminated in the conviction of the appellants and that of Ajab Noor, the acquitted accused, for offence under section 420, P.P.C. Read with section 5(2) of the Prevention of Corruption Act and they were all sentenced to 3 years' R.I. Each and a fine of Rs.10,000 each or in default thereof to further simple imprisonment for 3 years each as per judgment dated 5-3-1985.
6. All the 7 convicts filed 3 separate appeals in the High Court which were disposed of through the impugned judgment whereby the conviction anti sentence of the appellants were maintained but the sentence of simple imprisonment to 3 years in default of payment of fine was reduced to 1 year.
Ajab Noor was, however, acquitted of the charge.
7. Leave was granted to consider the case further.
8. We have heard the learned counsel for the parties and perused the record. In this case the mainstay of the case of the prosecution is the Special Power of Attorney Ex.P-3. It was on the basis of this document that the alleged sale took place in favour of Fazalur Rehman appellant and sale mutations were attested. At the trial the owners of the disputed land disowned the execution of a special power of attorney in the name of Abdur Rashid appellant. Abdur Rashid appellant in his statement under section 342, Cr.P.C. Has denied to have got executed the Power of Attorney in his favour and similarly the scribe of the power of attorney namely Muhammad Khurshid appellant has also denied in his statement under section 342, Cr.P.C. To have drawn the special power of attorney though his signature as the scribe of the power of attorney is available on Ex.P-3. In spite of all the above denial, no effort was made to send the document Ex.P-3 alongwith the specimen signatures/thumb marks to handwriting/finger print expert to prove the execution of the special power of attorney. The trial Court too had failed to compare the signatures of the complainant and the Deed-Writer with the admitted signatures on record. Under the circumstances it will be difficult to hold tat the special power of attorney Ex.P-3 was fabricated by Muhammad Khurshid appellant at the instance of Abdur Rashid appellant.
9. As for the case against the other appellants, we hardly, find any mense rea in the part performed by them. Fazalur Rehman vendee/appellant is the brother of Ghulam Mustafa appellant. The latter only identified the former in the presence of the Revenue Officer. It is not the case of the prosecution that in fact Fazalur Rehman himself did not appear before the Revenue Officer and Ghulam Mustafa appellant identified a wrong person before the Revenue Officer. Moreover, had it been a shady transaction, one brother would not have involved the other brother.
10. As far as Muhammad Akbar and Muhammad Akram are concerned, before these two appellants a properly executed Power of Attorney was produced, the vendee was identified by none else but by his brother, therefore they could not refuse the attestation of mutation. We have not been able to find any fault in their conduct entailing criminal liability.
11. In view of the above, the appeals are accepted. The appellants are acquitted. They are on bail, their bail bonds are discharged.