1. Ghulam Rasool, Naib-Tehsildar, Fazal Dawar Patwari, and Haq Dar Khan, were tried for offences punishable under sections 468/420, Pakistan Code, read with section 5(2) of the Prevention of Corruption Act, by Sessions Judge, Mardan, who vide his judgment dated the 29th of July, 1979, convicted them under section 468, Pakistan Penal Code, with an award of two years rigorous, plus a fine of Rs. 1,000 each, or further three months' rigorous imprisonment in default of payment thereof. The Sessions Judge, however, found that no offence under section 420 Pakistan Penal Code or under section 5(2) of the Prevention of Corruption Act had been made out against the accused, and consequently acquitted them of the said charges. Aggrieved by their conviction and sentence all the convicts have prepared three separate appeals, which are being disposed of by this one single judgment.
2. In this Court, a number of points have been taken. But before the points urged are mentioned, it would be necessary to know exactly what the case against the appellant is. The facts of the case as alleged by the prosecu--tion are shortly these:- In the year 1971, Fazal Dawar appellant worked as Patwari Halqa Kabgani while Ghulam Rasool appellant was Naib Tehsildar of the circle, which included the said Halqa. Sher Afzal son of Murad Khan of village Kabbani was the owner of certain landed property in the same village. The three appellants hatched a conspiracy to deprive Sher Afzal of his landed property who was missing from the village for the last more than thirty years. In furtherance of this on the 31st of May, 1971, Fatal Dawar Patwari recorded a report in Roznamcha Waqiati Exh. P. W. 4/1, at Mad No. 407, by which the said Sher Afzal was shown to have appeared before him and stated to have gifted his half of the land- to Haqdar accused, and the other half to Jan Bahadur Khan and Jan Zaman. The report purports to have been thumb marked by Sher Afzal. On the basis of this report, Fatal Dawar entered Mutation No. 312 copy Exh. P. W. 5/5, in the register of mutations on the following day. The same day, mutation was placed before Ghulam Rasool who recorded an order on the mutation stating therein that Sher Afzal Donor, identified by Lambardar Jamdad and Sardar Khan, admits the factum of gift and that the mutation be placed before him for attestation after checking by the Field Qanungo concerned. Before the mutation could be attested, the aforesaid Jamdad submitted applications to the authorities concerned concluding Assistant Commissioner, Swabi, alleging that he had not thumb-marked the mutation either as a Commissioner or as an identifying witness, and that an inquiry be made into the matter. Ayub Khan P. W. 2 who was then posted as Tehsildar, Swabi, was asked by his superiors to hold enquiry into the allegations contained in the application.
3. After doing all that was required of him, Mr. Ayub Khan submitted a report Exh. P. W. 2/1 stating therein that mutation No. 312 was fictitious in that Sher Afzal was not in the village for the last 30/35 years and that all the proceedings by the three accused were collusive and fictitious. In consequence of the inquiry report and the recommendations by the Enquiry Officer, Muhammad Zaman Khan, P: W. 6, who then worked as Sub-Inspector, Anti-Corruption, Mardan, proceeded with an enquiry into the matter, under the orders of the Director, Anti-Corruption and eventually registered a case against the appellant vide F. I. R. Exh. P. A. He then took up the investigation and on its completion, the three appellants were sent up to stand their trial.
4. The prosecution examined as many as seven witnesses at the trial to support its case. At the trial, the position taken up by Fazal Dawar was that he had entered the factum of gift in the Roznamcha Waqiati at the instance of a person who claimed himself to be Sher Afzal and that he also entered the mutation in the bona fide belief that the person was no other than Sher Afzal. The case of Ghulam Rasool appellant was that the state--ment on the mutation in question was recorded by him at the instance of Jamdad Khan and Sardar Khan who had identified the person appearing before him as Sher Afzal, owner of the property to which the mutation related. The position taken up by Haqdar appellant, however, was that he had asked P. W. Sardar to get the inheritance mutation of Sher Afzal attested in his name as well as in the names of his cousins Jani Iaman and Jan Bahadur. He further explained that Sher Afzal was out of the village since before his birth and that the Naib-Tehsildar (Ghulam Rasool) appellant, on charg--ing a sum of Rs. 500 from him, had told him that the whole property of Sher Afzal would be mutated in his name but that he should not disclose this fact to any one. No evidence, however, was led in defence.
5. Having placed full reliance on the testimony of the prosecution witnesses, the trial Judge convicted the appellants as stated earlier.
6. It will be convenient for me to dispose of, at the outset, a legal objection raised on behalf of two appellants, namely Ghulam Rasool and Fatal Dawar, that the gift mutation having not been attested in pursuance to the report recorded in the Roznamcha Waqiati and the mutation entered on its basis in the Register of mutations, no offence, much less that of forgery, can be said to have been committed. It has been argued that to constitute an offence of forgery in a case like the present one, the attestation of mutation would be a condition precedent and since the mutation entered by the Patwari remained unattested in this case, the offence of forgery cannot, be said to have taken place. According to the learned counsel, the mere---entry of mutation based on a false entry in the Roznamcha, and for that matter a false document prepared by the Naib- Tehsildar showing therein the presence of Sher Afzal and his admission of having made the gift, would not be sufficient to constitute an offence of forgery as no wrongful gain o loss would accrue to any body until such time as the mutation was attested.
7. At first sight these submissions may seem formidable, but closer scrutiny would incline dispassionate minds to a contrary conclusion. There is no gain-saying the fact that "Forgery" has been defined in section 463, Pakistan Penal Code, as follows:- "Whoever makes any false document or part of a document with intent to cause damage or injury to the public or to any person, or to support any Claim or title, or to cause any person to part with property, or to liter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
8. An analysis of this provision would show that the two essential ingredients of the offence of forgery are firstly the making of false document and secondly doing so with a fraudulent intention to cause damage or injury to any person, to support a false claim or to cause a person to part with property etc. This is however, not a complete definition but it is carried forward in the next section 464, where the short statement of section 463, the making of any false document or part of a document, is defined. It reads:- A person is said to make a false document.
9. Firstly---Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed, or Secondly---Who, without lawful authority, dishonestly or fraudulently by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration, or Thirdly--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration.
10. The second and third parts are irrelevant for the purpose of the present case and may be disregarded as there is no cancellation or alteration involved nor is there any allegation of cancellation or alteration. The first part deals with the dishonest or fraudulent execution of a document or part thereof with the intention of causing it to be believed"'" that the document or part thereof was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed or at a time at which he knows that it was not made, signed, sealed or executed. Then Explana--tion 2 under section 464 is to the effect that "the making of a false document in the name of fictitious person intending it to be believed that the document was made by a real person, may amount to forgery. The provisions of sections 463 and 464 read together with the said Explanation, leave no room for doubt that the offence of forgery is made up of two parts: Viz. (1) the making of a false document as defined in section 464 and (2) with intent to injure or defraud in one or other of the five ways specified. Under section 464, the maker of a false document or part thereof is declared to be guilty of forgery if he has made any such document or any part of it with the required intent. Two classes of intents are contemplated and it is clear that it is not an essential quality of fraud or dishonesty that it should result in or aim at the deprivation of property. In fact the making of a false document either in whole or in part with, intent to cause damage or injury to a person or to support any claim or title to property constitutes the offence of forgery and nothing more is required to complete the offence. In this view of the matter, I see no force in the contention that an entry of a false mutation based on a false entry in the Roznamcha, or for that matter, a false order recorded on such a mutation by the Revenue Officer, would no constitute forgery merely because it would be incapable per se to cause wrongful gain to one party and loss to the other. The law does not insist, on the actual accrual of wrongful gain or loss and the mere intention to cause the same would be sufficient to constitute the offence in case the existence of other ingredient viz. Making of a false document, is proved. To support this view point, a reference may be made to a case, Muhammad Anwar and 4 others v.
11. State (1971 P Cr. L J 799) which is an authority for the view that mere entry of false mutation would constitute forgery if there is intention to cause wrongful gain to one party and loss to other and that merely because an entry is incapable per se to cause such loss and gain would not take it out of the scope of section 463, Pakistan Penal Code.
12. Coming to the merits of the case, it is not challenged that Sher Afzal was neither the maker of the report recorded by Fazal Dawar in the Roznamcha on 31st of May, 1971, nor did he thumb-mark the same. It is also not denied that Sher Afzal did not appear before Ghulam Rasool appellant on the 1st of June, 1971 when the latter recorded an order on Mutation No. 312 showing therein the presence of Sher Afzal before him and an admission on his part of having gifted the property in favour of Haqdar appellant and two others. It is also not in dispute, as admitted by Fazal Dawar in his statement under section 342, Criminal Procedure Code, that he obtained the signatures of Sardar Khan P. W. On the mutation Exh. P.W. 6/5. It may be stated that the prosecution case against the appellants with regard to forgery, rested mainly on the evidence of Ghulam Haider P. W. 5 and Sardar Khan P. W.
7. It is interesting to note that Haqdar accused in his statement under section 342, Criminal Procedure Code, attempted to involve his co-accused for the commission of the offence charged with. Before I proceed to deal with the factual aspect of the case, I would like to refer to an objection raised by the learned counsel for Ghulam Rasool and Fazal Dawar appellants in regard to the evidentiary value of the statement so made by Haqdar accused, as against his co- accused. It was strenuously contended by him that the purpose of examination of accused under section 342 of the Criminal Procedure Code is to enable the accused to give such explanation as he may consider necessary in regard to the salient points made against him and that the answers given by the accused can be used only for or against him and not against his co-accused. He said that in view of this principle of law, that portion of Haqdar's statement, which implicates his co- accused in one way or the other, cannot be used against the co-accused. Although the only authority referred to by the learned counsel, reported as PLD 1967 Dacca 503, does not exactly cover this point, nevertheless the contention with regard to the legal aspect of the matter appears to be well founded. It is beyond doubt that there is no indication in the language of section 342 that the answer given by one accused under this section could be considered against his co-accused.
13. On the question whether statement made under this section can be taken into consideration under section 30, Evidence Act, against a 0co-accused, there is divergence of judicial opinion. The correct view, however, appears to be that a confession made by an accused in the course of the trial cannot be taken into consideration against his co-accused under section 30 of the Evidence Act, for the reason that when a confession is made before a Court in the course of a trial, the Court perceives with its own senses the fact of the confession and knows such fact and does not believe it or consider it to be probable whereas the requirement of section 30, Evidence Act is that the confession must be proved and under section 3 of the same Act, the fact is said to be proved when on considering the matters before it, the Court believes such fact to exist or considers its existence so probable that a prudent man ought under the circumstances of the case to act upon the supposition that it exists. It is thus obvious that under the law for the time being in force, the statement made by Haqdar accused under section 342, Criminal Procedure Code, cannot be used against his co-accused.
14. The prosecution case against the appellants, as stated already, mainly rests on the testimony of Ghulam Haider P. W. 5 and Sardar Khan P. W.
7. Ghulam Haider is the son of late Jamdad Lambardar who had made a written complaint to tire Assistant Commissioner, Swabi, on 29June, 1971, that be did not thumb impress the mutation in question, either as a commis--sion or as an identifying witness. The said witness has deposed that his father had told him in his own lifetimeth that his thumb impression was fictitiously obtained on the mutation and that he was asked to put his thumb-impression in his own house. In other words, this statement aimed at showing that Jamdad was not informed by Fazal Dawar or Ghulam Rasool that he was required to identify the donor (Sher Afzal, or that the mutation related to a gift on his part. The statement of the other witness, namely, Sardar Khan is to the effect that about 4/5 years ago, he was taken by Haqdar accused to the place of Ghulam Rasool appellant where he (Sardar Khan) told the said appellant that Haqdar and Jan Bahadur, etc. Were the heirs of Sher Afzal. The witness also referred to certain other facts and circumstances to which reference shall be made at the relevant stage.
15. Ghulam Haider and Sardar Khan P. Ws. Have been believed by the trial Court and I think rightly.
16. They appear to be truthful witnesses and could have no motive to depose falsely against the appellants. One of them, namely, Sardar Khan, is also closely related to Haqdar appellant, the latter being his sister's son. The plea taken up by Ghulam Rasool and Fazal Dawar appellants is that the entries in the Roznamcha, and the order on the mutation, which are material for the purpose of forgery, were made in bona fide manner inasmuch as Sher Afzal was not personally known to them. Their further plea is that he was identified by Jamdad deceased and Sardar Khan at the time when the order on the mutation was recorded by Ghulam Rasool appellant. This plea, it will be seen, is wholly false and is belied by independent and reliable evidence on the record. Jamdad deceased was an illiterate and so is Sadar Khan P. W. Who can only sign. Both of them had no ill will towards, or grudge against, the accused persons of this case. The fact that Jamdad was not present at the time when Ghulam Rasool recorded the order in question on the mutation is borne out by the statement of Sardar Khan, which is to the effect that when he signed the mutation, Jamdad Lambardar was not present. This statement leaves no room for doubt that at the time when the Naib Tehsildar recorded order on the mutation, and the statement of fact recorded by Naib-Tehsildar about his presence was wholly false. At that time, Fazal Dawar Patwari was present as he had placed the mutation before the Naib-Tehsildar to do the needful. In this situation, the statement that Jamdad's thumb-impression was obtained on the mutation in his house appears to be true. The mutation mast have been taken to him by Fazal Dawar Patwari as under the rules he was required to have its custody. Jamdad being an illiterate person could not possibly know the contents of the mutation and it is clear that he was never informed by the Patwari or the Naib- Tehsildar that he was an identifying witness or that the mutation related to a gift on the part of Sher Afzal. It was for this reason that as soon as he came to know of the factual position, he made complaints to the authorities. Again the statement of Sardar Khan P. W. Is also very clear on the point. He was taken to Ghulam Rasool appellant by Haqdar. The fact that the said P. W. Told the Naib-Tehsildar that Haqdar and Jan Bahadur, etc. Were the heirs of Sher Afzal who had left the village in 1944-45 and in spite of this the Naib-Tehsildar and Fazal Dawar Patwari proceeded with the gift mutation, clearly suggests that all the three appellants had from the very start joint hands to commit forgery in the way they did and that what they gave out to Sardar Khan P. W. Was that the mutation related to the inheritance of Sher Afzal who was not heard of for long. The same appears to be the position with Jamdad Lambardar. Had the appellants disclosed the real nature of transaction to Jamdad and Sardar Khan P. Ws. The latter two would have never thumb-marked or signed the mutation. The evidence of Ghulam Haider and Sardar Khan P. Ws. Examined in the light of the various circumstances brought on the record of the case, proves beyond reasonable doubt that Haqdar accused, in order to get hold of the property of Sher Afzal who was away from the village since long, approached Ghulam Rasool, and Fazal Dawar Patwari, and then all of them worked out a scheme that a mutation would be entered on behalf of Sher Afzal for the gift of the property but that the real nature of the transaction would be withheld from others. In pursuance to this scheme, the Patwari entered a false entry in the Roznamcha Waqiati while Ghulam Rasool Naib-Tehsildar recorded the false order on the mutation. This was a deliberate and wilful act on their part. In this view of the matter, there can be no doubt that the entry made in the Roznamcha and the order recorded on the mutation were false and were not made by Ghulam Rasool and Fazal Dawar appellants in bona fide manner.
17. It has now to be seen as to what offence is made out in the circumstances and against whom. Two appellants, namely, Ghulam Rasool and Fazal Dawar, as discussed above, made false document in the name of a fictitious person intending it to be believed that the documents were made by the real person, and were thus guilty of the offence of forgery punishable under section 468, Pakistan Penal Code. They were, therefore, rightly convicted by the trial Court under the said section. As regards Haqdar appellant, it may be stated that the documents in question have neither been written, nor signed or thumb marked by him. According to section 464, Pakistan Penal Code, a person is said to make false document who dishonestly or fraudulently signs, seals or executes a document or part of a document, or makes any mark denoting the execution of such a document.
18. It will be seen that a person to be guilty of forgery under the first clause of section 464 must make a false document or part of the false document and not merely or cause it to be made. It follows that the charge of forgery cannot lie against who does not a person who is not the writer of the forged document or sign or thumb-mark the forged document. In view of this position, Haqdar appellant cannot be said to have committed an offence of forgery. He, however, actively aided and abetted his co-accused to commit the acts of forgery and was, therefore, liable to punishment under section 468/109, Pakistan Penal Code.
19. The question of sentence does not present much difficulty. On considera--tion of the facts and circumstances of the case, I feel no hesitation in coming to the conclusion that the sentence of imprisonment and fine imposed upon the appellants was justified.
20. In the result, all the three appeals fail and are accordingly dismissed subject to the modification that the conviction of Haqdar appellant is altered to one under section 468/109, Pakistan Penal Code.
21. M. A. R.