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Criminal Revision No. 1102 of 1959, decided on 5th February 1960.

S. 419 read with S. 415 --Cheating by personation‑Surety and attesting witness entering wrong description of themselves on bail bond and getting order of release‑Not an offence under 5.419 but one under S. 205, P. P. C.‑Necessity of amending S. 415.

Where the surety and attesting witness in a bail bond for the personal attendance of an accused person in a Magistrate's Court gave wrong descriptions of themselves and got the Magistrate to make a release order in regard to the accused

Held, that this did not constitute an offence under section 419, P. P. C., but one under section 205, P. P. C.

While the question whether an article was or was not "property" did not depend upon its price in money or market value and that if the article had some special value for the person concerned, it was "property" even though its value could not be measured in money, it was doubtful whether the release order passed. by the Magistrate could be described as "property" within the meaning of section 415, P. P. C.

A requirement of section 415 (cheating) was that the person received must have acted under the influence of the deceit and the Act of the person deceived caused or was likely to cause damage or harm to that person in body, mind, reputation or property. In the instant case, however, it was not clear whether false personation could have caused any harm to the Magistrate in his reputation as a responsible person.

Muhammad Bakhsh and another v. Crown I L R 22 Lah. 718 ref.

Further, that in the absence of a complaint from the Magistrate concerned, offence under section 205, P. P. C. could not have been taken cognizance of by the Magistrate who had tried the case.

Necessity of amending section 415, P. P. C. pointed out.

S. 439‑High Court acquitting convict in revision‑May acquit also co‑convict who had neither appealed nor preferred revision petition.

Petitioner through jail.

Muhammad Waheed for Respondent.

Dates of hearing : 2nd and 3rd February 1960.

This revision petition by Ghulam Mustafa son of Sher Muhammad Khan has been submitted through the Superintendent, District Jail, Multan. It is directed against the order of the Additional Sessions Judge, Multan, dated the 31st of July 1959, whereby he upheld his conviction and sentence under section 419 of the Pakistan Penal Code.

2. The facts of the case are briefly as follows. In February 1957, a case against Ghazi‑ud‑Din Khan under section 379, Pakistan Penal Code, was pending in the Court of Nawabzada Abdur Rahim Khan, Magistrate 1st Class, Multan. On the 16th of February 1957, the learned Magistrate granted bail to Ghazi‑ud‑Din Khan in the sum of Rs. 2,000 with one surety. On the 18th of February 1957, the Magistrate was away on tour and the bail bond Exh. P. A. was presented before the Duty Magistrate, Khan Saadat Nawaz Khan (P. W. 8), Magistrate 1st Class, Multan. According to this bail bond, one Ghulam Mustafa son of Ahmad Khan, caste Pathan, resident of Jamalpura, House No. 204, Ward No. 9 of Multan City, had stood as a surety while Khuda Bakhsh son of Muhammad Bakhsh Lambardar of Fatulpur was one of the attesting witnesses of the bond. This bail bond was presented before the Magistrate by Ghulam Mustafa petitioner and Wahid Bakhsh son of Qadir Bakhsh appeared before him as the attesting witness of the bond. This bail bond was accepted by the Magistrate and Ghazi‑ud‑Din Khan was released from the custody. Thereafter Ghazi‑ud‑Din Khan absconded. Nawabzada Abdur Rahim Khan then issued a notice to Ghulam Mustafa petitioner who appeared before him on the 5th of March 1957 and made the statement Exh. P. F./3, in which he admitted that he had stood surety for Ghazi‑ud‑Din Khan and he asked for some time for his production. Thereafter Ghulam Mustafa himself absconded and was subsequently arrested by the police. During the course of the inquiry by the Magis trate, it transpired that the petitioner is the son of Sher Muhammad Khan and not of Ahmad Khan as stated in the bail bond. It was also found that Wahid Bakhsh son of Qadir Bakhsh had personated for Khuda Bakhsh son of Muhammad Bakhsh Lambardar and he had put his thumb‑impression on Exh. P. A. Nawabzada Abdur Rahim Khan then sent the complaint Exh. P. B. to the police for the registration of a case under section 419, Pakistan Penal Code. The police, after investigation, challaned both the accused.

3. At the trial, a number of witnesses were examined in support of the prosecution case. Ghulam Mustafa petitioner denied his signature on the bail bond Exh. P. A. and pleaded that he had not stood as surety for Ghazi‑ud‑Din Khan. Wahid Bakhsh also denied having thumb‑marked Exh. P. A. and he pleaded that he had not attested the bail bond. They produced some witnesses in their defence. The learned Magistrate, however, came to the conclusion that Ghulam Mustafa petitioner had stood as surety for Ghazi‑ud‑Din Khan and had presented the bail bond Exh. P. A. before Khan Saadat Nawaz Khan and that Wahid Bakhsh had attested the bail bond as Lambardar. He accordingly convicted both the accused under section 419, Pakistan Penal Code, and sentenced each one of them to suffer rigorous imprison ment for two years. Ghulam Mustafa filed an appeal before the Additional Sessions Judge, Multan, but his appeal was dismissed. It appears that Wahid Bakhsh did not file any appeal against his conviction and sentence. Ghulam Mustafa petitioner has now come up in revision before this Court.

4. After going through the evidence on the record, I am of the opinion that even if the allegations of the prosecution are established beyond doubt against Ghulam Mustafa and Wahid Bakhsh, then also the petitioner and Wahid Bakhsh are entitled to an acquittal. The charge against both these accused was that they had cheated Khan Saadat Nawaz Khan, Magistrate 1st Class, by falsely representing that Ghulam Mustafa was the son of Ahmad Khan and that Wahid Bakhsh was Khuda Bakhsh Lambardar.

5. The question, which arises for determination, is whether Ghulam Mustafa petitioner and Wahid Bakhsh have committed an offence falling within the purview of section 419 of the Pakistan Penal Code. Section 419 reads as follows:‑--

"Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."

6. "Cheating by personation" is defined in section 416 of the Pakistan Penal Code and reads as follows :‑

"A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is."

Explanation.‑"The offence is committed whether the individual personated is a real or imaginary person."

7. It will be thus seen that mere false personation does not constitute an offence under section 419, Pakistan Penal Code, unless by such false personation the person cheats. "Definition of cheating" is given in section 415. This section requires ;

(1) deception of any person,

(2) (a) fraudulently or dishonestly inducing that person, (i) to deliver any property to any person ; or (ii) to consent that any person shall retain any property, or

(b) intentionally inducing that person to do or omit to do anything which he would not do or omit' if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.

8. The learned Magistrate did not discuss at all as to how it was established that the petitioner and Wahid Bakhsh had cheated the Magistrate. The Additional Sessions Judge, how ever, while dealing with this aspect of the matter, observed as follows:‑--

"Now there is no doubt that the appellant (Ghulam Mustafa) deceived Khan Saadat Nawaz Khan, Magistrate, into the belief that the appellant was "Ghulam Mustafa son of Ahmad Khan" and he fraudulently induced the Magistrate so deceived to attest the bail bond which entailed the passing of an order as to the release of Ghazi Khan; and also that the order of release constitutes property."

9. The word "property" is not defined anywhere in the Penal Code. However, in section 22, Pakistan Penal Code, it is laid down that the words "movable property" are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth." There is authority for the view that whether an article is or is not "property" does not depend upon its price in money or market value and if it has some special value for the person concerned, it is "property" even though its value cannot be measured in money. I have grave doubts that the release order passed by the Duty Magistrate can be described as "property" within the meaning of section 415, Pakistan Penal Code. Besides, that release order has not been placed on the file and Khan Saadat Nawaz Khan has not said anything to the effect that he had issued any release order. Although there can be no doubt that such a release order must have been issued, but then if the petitioner was to be made liable on the basis of that release order that should have been proved and brought on the record. The charge, as framed by the Magistrate, does not specify at all that the accused had obtained "property" in the form of a release order. The petitioner and Wahid Bakhsh, therefore, could not be legally convicted under section 419, Pakistan Penal Code, on that basis.

10. The learned Sessions Judge, while dealing with the second part of the definition of "cheating" observed as follows :‑

"In this case, the appellant (Ghulam Mustafa) deceived Khan Saadat Nawaz Khan, Magistrate, into the belief that he was "Ghulam Mustafa son of Ahmad Khan" and intentionally induced the Magistrate to attest the bail bond Exh. P. A., which the appellant had executed as "Ghulam Mustafa son of Ahmad Khan" and which attestation the Magistrate would not have made if he had not been deceived into the belief that the appellant was "Ghulam Mustafa son of Ahmad Khan" and which attestation is likely to harm the Magistrate in his reputation as a responsible person, attesting bail bond only after a due inquiry."

11. Unfortunately, section 415 and illustrations appended to it do not throw any light as to what is meant by "causing damage or harm to that person in body, mind, reputation or property". The requirements of the section are that the person deceived must have acted under the influence of the deceit and the, act of the person deceived causes or is likely to cause damage or harm to that person in body, mind, reputation or property. No procedure is prescribed in the Criminal Procedure Code which a Magistrate is required to follow while attesting a bail bond. I have no doubt in my mind that if the parentage of Ghulam Mustafa had been correctly given in the bail bond Exh. P. A., the Magistrate would have unhesitatingly accepted the bail bond. There is nothing to show that because of the wrong parentage given in the bail bond, the Magistrate was induced to accept the bail bond presented by Ghulam Mustafa. I agree that if the Magistrate had known that Wahid Bakhsh was falsely personating as a Lambardar, then he may not have accepted the bail bond, but in the circumstances of the case the Magistrate could not have done anything more. On the back of the bail bond, the valuation of the property of the surety is given and it is signed by Ghulam Mustafa and thumb marked by Wahid Bakhsh. I do not see how if later it was found that Ghulam Mustafa and Wahid Bakhsh had falsely personated, it could have g caused any harm to the Magistrate in his reputation as a responsible person. I am fortified in this view by the decision of a Division Bench of the Lahore High Court reported as Muhammad Bakhsh and another v. Crown (I L R 22 Lah. 718). In that case, a mutation was entered by the Patwari at the instance of one Allah Wasaya that he had purchased four hundred kanals of land from Ilahi Bakhsh Sahol for Rs. 430 and the thumb‑impression of Shahru Khan Lambardar was obtained on the mutation. The mutation was then placed before Mirza Mahmood Beg, Naib Tahsildar, when he was on tour. Allah Wasaya, Muhammad Bakhsh and Shahru Khan appeared before the Naib‑Tahsildar. Muhammad Bakhsh represented himself to be Ilahi Bakhsh Sahol vendor and Allah Wasaya pointing to Muhammad Bakhsh stated that he had purchased the land from Ilahi Bakhsh Sahol. Shahru Khan Lambardar identified Muhammad Bakhsh as Ilahi Bakhsh Sahol. In the course of the inquiry, the Naib Tahsildar became suspicious and did not sanction the mutation. Shahru Khan then filed an application before the Naib‑Tahsildar mentioning all the above‑mentioned facts and alleging that he had himself been deceived. The Naib‑Tahsildar, after making further inquiries into the matter, reported the case to the police. Muhammad Bakhsh and Allah Wasaya were challaned and con victed under sections 419 and 420 of the Indian Penal Code. Allah Wasaya was sentenced to two years' rigorous imprisonment on each count while a sentence of one‑and‑a‑half years' rigorous imprisonment was awarded to Muhammad Bakhsh on each count. Their appeal having been dismissed by the Additional Sessions Judge, Multan, they filed a revision petition before the High Court. The petition for revision came up for hearing before Dalip Singh, J., who was of the opinion that an important question of law was involved in the case and he accordingly referred the case to a Division Bench consisting of Bhide and Abdul Rashid, JJ. While dealing with the question whether the deception practised on Mirza Mahmood Beg, Naib‑Tahsildar, caused or was likely to cause damage or harm in body, mind, reputation or property, Abdul Rashid, J., with whom Bhide, J. agreed, observed as follows :‑

"In my opinion, no harm in body, mind, reputation or property was caused or was likely to be caused to Mirza Mahmood Beg as a result of the deception practised on him. Before the Patwari, Muhammad Bakhsh had represented himself to be Ilahi Bakhsh, vendor. Shahru Khan, Lambardar, had identified Muhammad Bakhsh as Ilahi Bakhsh, vendor. Before the Naib‑Tahsildar, a similar procedure was followed and it was after Shahru Khan, Lambardar, had identified Muhammad Bakhsh as I1ahi Bakhsh, vendor, that the mutation was entered. In these circumstances, it must be held that the Naib‑Tahsildar was not likely to suffer in mind, body or reputation if it was subsequently discovered that Ilahi Bakhsh had not sold the land in dispute, but that he had been personated by Muhammad Bakhsh.

I am of the opinion, therefore, that the present case does not fall within the purview of section 415, and that no conviction under section 419 can, therefore, be sustained against the petitioner."

In this case all the relevant authorities on the point were taken into consideration and the learned Judge further remarked that "it appears to me that the definition of cheating' in section 415 of the Indian Penal Code requires modification to order to cover cases where one person is deceived and another person suffers, or is likely to suffer, damage or harm in body, mind, reputation or property. It has been revealed in a number of cases that serious deception has been practised on Government Officials as a result of which certain other persons have suffered a great deal of harm in reputation or property. As the definition of cheating' at present stands, such cases are not covered by section 415, Indian Penal Code, and the punishment prescribed in sections 419 and 420 cannot be awarded to persons who practise deception on Government servants which results in damage and harm to third parties." I am in respectful agreement with the above observations.

12. It therefore, follows that the conviction of the petitioners Ghulam Mustafa and Wahid Bakhsh cannot be upheld. It is true that Wahid Bakhsh did not file any appeal against his conviction and sentence and has not filed any revision petition, but as the record is before me and I am of the considered opinion that an offence under section 419, Pakistan Penal Code, has not been established against any of the accused, I set aside his conviction and sentence and acquit him in the exercise of the revisional jurisdiction of this Court. The result is that the petitioner Ghulam Mustafa and Wahid Bakhsh are acquitted. They shall be set at liberty forthwith.

13. Before concluding, I would like to add that the petitioner and Wahid Bakhsh could have been convicted under section 205 of the Pakistan Penal Code, and in fact charges were framed against them under section 205 also, but in the absence' of any complaint by Khan Saadat Nawaz Khan, Magistrate, the Court could not have taken cognizance of an offence under section 205, Pakistan Penal Code. I might also add that although it was pointed out by the Lahore High Court in the above mentioned case as far ago as 1941 that the definition of cheating' in section 415, Pakistan Penal Code, required modification in order to cover cases where deception is practised on Government servants, yet the authorities concerned have not cared to amend the law. It is to be regretted, that in the present state of the law, the offenders in such cases escape punishment, which they otherwise deserve. A copy of this judgment may be sent to the West Pakistan Government for taking such action in the matter as it may deem fit.

A.H. Order accordingly.

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