KARACHI, May 25: Justice S. A. Rabbani has set aside the conviction and sentence of a KDA clerk who was accused of executing the lease of a plot on fake documents.
The order was passed in an appeal by Marghoob Ahmed who was represented by counsel Mehmood Alam Rizvi.
According to facts of the case, in 1981 lease of plot No. C- 99, Block J, North Nazimabad, was executed by the concerned officer of the KDA in the name of Majeed-un-Nisa.
An FIR in respect of an offence committed by execution of such a lease was registered in 1984, but the investigation agency failed to arrest Majid-un-Nisa and submitted charge-sheet against the appellant and one Abdul Majeed Marwari, assistant administrative officer of KDA in 1993.
Abdul Majid Marwari reportedly died and the Special Judge Anti-corruption (Prevention) Karachi framed charges against the appellant for offences punishable under sections 419, 420, 468, 471, 477 (a) PPC read with section 5 (ii) (Prevention) of Corruption Act, 1947.
The charge against the appellant was that he put up a note on the note-sheet to the AAO, co-accused in the case, recommending execution of the lease of the plot in favour of Majid-un-Nisa without clarifying her original documents.
Before the trial court, the prosecution examined a number of witnesses but many of them said nothing about the appellant.
In his statement, the appellant had denied the charge against him. It was his contention that his duty was only to verify dues against the allottees from the accounts branch.
He had stated that he was a senior clerk and he was not empowered to transfer properties and it was the administrative officer who was empowered to do so.
But the trial court held that by putting the note to the administrative officer the appellant had committed offences punishable under sections 420 and 471 PPC. In view of the old-age of the appellant, the trial court took a lenient view and sentenced to him with rigorous imprisonment for three months with a fine of Rs5,000.00 on each count. This conviction and sentence was challenged.
Justice S. A. Rabbani held that record showed that the only allegation against the present appellant was that he put a note on a note sheet for recommending execution of lease and he did so without verification of original documents, like allotment order and possession order. This lapse on the part of the appellant could be treated as negligence on inefficiency and could be dealt with through a departmental action.
He was not an authority to execute the lease and he did not execute the lease.
The administrative officer who was authorised to execute the lease was not bound to act upon the note and recommendation made by the appellant. The omission and act of the appellant, made basis of the charge, do not constitute a criminal offence under section 420, or 471 PPC for which he had been convicted and punished.
The ingredients to constitute the offences under these sections were not available in the present case, Justice Rabbani held, adding as a matter of fact, the appellant had been subjected to this lengthy trial unnecessarily and without legal justification.
The conviction and sentence awarded by the trial court was not based on law and cannot be maintained. The conviction and sentence was therefore set-aside and the appeal was allowed.