Hayat Mir vs State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

JUDICIAL DEPARTMENT

JUDGMENT

Cr. A No. 17-B/2011 Date of hearing......09/02/2015

Hayat Mir.....Vs.........The State.

Appellant(s) by : Abdul Rashid Marwat & Anwar-ul-Haq Advocate.

Respondent/complainant(s) by: Sajid Nawaz Sher Muhammad Khan & M. Farooq, SUrani Advocates,

State by Saif-ur-Rehman Addl:AG.

ABDUL LATIF KHAN, J:- Through this single judgment, I intend to dispose of instant Criminal Appeal as well as connected Cr.A No.72-B of 2011 titled “Ali Almar Khan Vs The State” and Cr.A No.123-B/2011 titled “ State Vs Najeeb Ullah etc as all the appeals are outcome of one and same F.I.R No.04 dated 10.09.2005 u/s120-

B/201/409/420/465/466/467/468/471 P.P.C/ 5(2)

PC Act of P.S.ACE Bannu, and have been preferred against the impugned judgment dated 11.06.2011, passed by learned Judge, Anti-

Corruption, Southern Region Head Quarter at Bannu, whereby the respondents (in Cr.A No.123-B/2011) were acquitted of the charges levelled against them while appellants of instant appeal as well as Cr.A No.72-B/2011 namely Hayat Mir, Shamsha Mir Khan, Atlas Khan and Ali Almar were convicted and sentenced as under:-

“U/s 420 P.P.C. to suffer two

years RI each alongwith fine of Rs.20,000/- each or in default

thereof to further undergo SI for two months,

U/S 465 P.P.C. to suffer two

years RI each alongwith fine of Rs.20,000/- each or in default

thereof to further undergo SI for two months,

U/S 466 P.P.C. to suffer two

years RI each alongwith fine of Rs.20,000/- each or in default

thereof to further undergo SI for two months,

U/S 467 P.P.C. to suffer two years RI each alongwith fine of Rs.20,000/- each or in default thereof to further undergo SI for two months

U/S 468 P.P.C. to suffer two years RI each alongwith fine of Rs.20,000/- each or in default thereof to further undergo SI for two months,

U/S 471 P.P.C. to suffer two years RI each alongwith fine of Rs.20,000/- each or in default thereof to further undergo SI for two months,

Accused Ali Almar was also convicted u/s 5(2) PC Act 1947 and sentenced to suffer RI for two years alongwith a fine of Rs.20,000/- or in default thereof to further undergo for two months SI. All the sentences shall run concurrently and

benefit of Section 382-B Cr.PC

was extended to

appellant/convicts.

2.As per prosecution case, on the written application/letter dated 13.5.2005 submitted by Farzand Ali Khan Nazim Town-II, Bannu, addressed to Director ACE, Peshawar regarding preparation of fake documents in respect of ownership of plot of TMA Bannu, by the accused an open inquiry was conducted wherein the appellants/convicts alongwith co- accused were found involved for providing bogus and fake documents/ fake PTD & PTO in the name of Wazir Khan (father of appellant Atlas Khan) for getting the valuable land of TMA in which an official Tube well was also installed.

That with the connivance of Ali Almar Khan Sub- Registrar Bannu, Atlas Khan was shown as owner of the property and a Power of Attorney was registered through deed No.86 dated 2.4.1997 in the name of Shamsha Mir through registered deed No.148 dated 30.3.1998 in presence of marginal witnesses Shamsher Ali,

Najeeb Ullah Khan and Rooh Ullah Khan.

Consequently after getting permission for registration of case, the instant case was registered against the accused.

3.After completion of investigation, challan against accused submitted where all the accused except Najeeb Ullah were summoned however after arrest of Najeeb Ullah supplementary challan was submitted against him. At conclusion of trial, the learned Trial Court acquitted the co-accused Shamsher Ali, Rooh Ullah and Najeeb Ullah whereas convicted and sentenced the appellants/convicts Atlas Khan, Hayat Mir, Shamsha Mir and Ali Almar Khan through impugned judgment hence the instant criminal appeal and connected Cr.A No.72- B/2011 were filed by the appellants/convicts for their acquittal while Cr.A No.123-B/2011 was filed by the State for convicting the acquitted co- accused.

Arguments heard record perused.

4.Perusal of record reveals that the plot No.4590/C was put to auction through Bid sheet

Ex.PW.4/DX-2 showing one Wazir Khan (father of appellant Atlas Khan) as owner of the property being highest bidder culminating into PTO/PTD attested in his favour. Atlas Khan being only legal heir of Wazir Khan deceased, devolved upon him property by dint of inheritance mutation No.12575 dated 20.09.1966, who attorned one Shamsa Mir vide Wasiqa No.86 dated 2.4.1997 and in turn the property was allegedly sold to one Hayat Mir by Shamsha Mir attorney on behalf of his principal Atlas Khan.

5.Admittedly the PTD and PTO issued in favour of Wazir Khan deceased are still intact and the allegation that documents in question are based upon fraud and prepared by the accused through overwriting fraudulently made, has not been proved on record because the same has not been issued in the names of appellants rather it has been issued in the name of Wazir Khan deceased and the appellant Atlas Khan claimed ownership of the same only on the basis of inheritance mutation so no evidence regarding preparation of fake documents is available

against him which could connect him with the commission of offence. The original owner Wazir Khan never charged for commission of offence since 1961 till his death in the year 1966.

6.The suit for recovery of rent amount was filed by accused Atlas Khan, Hayat Mir against Municipal Committee in the year 1994 which was dismissed up to this Court in CR No.87/99 dated 26.3.2001. It is argued that stone was first turned by the complainant Farzand Ali Khan Naib Nazim of M.C on 15.3.2004 as a resolution was passed on the application of Hayat Mir, purchaser of the plot, seeking his induction into possession of the same. The learned counsel was handicapped to satisfy the Court as why the M.C, kept mum since institution of suit for recovery in civil Court in the year 1994 till the year 2004, date of resolution especially with reference to the fact that the M.C, had the knowledge of the claim of accused/appellants regarding plot in question as was party to the litigation. It is pertinent to mention that the appellants alleged malafide against the

complainant who belongs to rival group in the council and this fact fortifies the contention of the appellants.

7.The evidence available on file shows that neither the department of Evacuee Property has so far cancelled the documents attested in favour of Wazir khan, father of appellant Atlas Khan nor any relief has been claimed by the M.C. against the accused. The M.C. has failed to produce any document regarding its title however the allegations made by prosecution that the accused managed to manipulate the documents and committed forgery, the FSL report speaks about the change of digits/name and to this effect statement of one of the makers of document has been recorded as PW, but it is deposed that the I.O, himself took the document to the FSL for Expert opinion which is something beyond routine process and cast heavy doubt in the prosecution case. Even otherwise,

accused/appellant Atlas Khan was not beneficiary of document in 1961 nor participated in auction and it was his father and if there was

any allegations, though not proved on record, can at the most be levelled against his father (Wazir Khan) and in no case the appellant Atlas Khan or his purchaser can be booked for an offence, having no nexus with.

8.The entire evidence produced by prosecution was deficient to prove the commission of fraud and involvement of accused in the alleged forgery. The FSL report in isolation cannot be based for conviction of accused if not corroborated by any evidence. The evidence available on file do not connect the appellant Atlas Khan even for commission of offence because he claimed devolution of property vide inheritance mutation and in life time of Wazir Khan deceased, the M.C/complainant has not claimed owner ship of the plot nor proved their title over the property. After his death accused Atlas Khan has been charged for commission of fraud who was infact neither highest bidder nor the beneficiary of the document in the year 1961, rather he became owner in the year 1966

through inheritance so he cannot be connected with any forgery or fraud committed.

9.In the light of above, the prosecution failed to challenge even the PTO/PTD issued in favour of Wazir deceased which are still intact which have not been proved to be fake. None of the appellants/convicts or acquitted respondents are found guilty of preparation of above documents nor to this effect any evidence has been brought on record which could connect them with the commission of offence. The M.C/complainant kept mum for such a long time and then after the death of deceased raised the instant issue by involving the appellants/convicts alongwith acquitted respondents being responsible for commission of the act which they had not done. So the prosecution has badly failed to bring any cogent or confidence inspiring evidence, showing any link or participation of the appellants in the commission of offence. The prosecution is bound to prove its case beyond any shadow of doubt, benefit of which must be extended to the appellants.

10.The department has to take action against the delinquent officials which has not yet been taken. The I.O. has also not arrayed the delinquent officials as accused from the department nor made any serious efforts to toe the line of FSL report. The inheritance mutation of Wazir Khan in favour of Atlas Khan (being sole legal heir) shows that the prosecution failed to prove regarding other legal heirs of Wazir Khan.

Appellant Ali Almar A.R, has been convicted while the attested witnesses namely Shamsher Ali, Rooh Ullah and Najeeb Ullah have been acquitted by the Trial Court. The Sub-Registrar was supposed to make sure about identification of person executing the document which has been admitted to have been properly identified by the acquitted accused, so no case is made out against the Sub-Registrar. It is the duty of Sub-Registrar to attest the document on the identification of marginal witnesses and if they have not committed any offence as per findings of the trial Court then the Sub-Registrar could not be held responsible. As it is not a case of

prosecution that impersonation has been made nor the presence of Atlas Khan has been disputed by either of the party and in such scenario the conviction of Sub-Registrar was not in line with law.

11.For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts. If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right.

The judgment of conviction and sentence passed by learned trial Court is based on misreading, non-appreciation of evidence available on record which is against the law, facts on record and liable to be set aside. Thus the instant Criminal Appeal alongwith connected Cr. Appeal No. 172- B/2011 are allowed and the conviction and sentence passed by learned trial Court vide judgment dated 11.06.2011, is set aside and all the appellants namely Atlas Khan, Hayat Mir, Shamsha Mir and Ali Almar are acquitted of the

charges leveled against them. They are on bail, their bail bonds stands cancelled and their sureties are discharged from the liability of bail bonds.

12.The connected Cr.A No.123-B/2011 filed by the State through Advocate General KPK, Peshawar against acquittal of respondents No.1 to 3 is dismissed being without substance.

Announced.

Dt.09.02.2015.

JUDGE

“A.Qayum”