Fake attorney Fraud and Forgery: The Lahore High Court held that the petitioners had prepared a fake arbitration agreement and award through a fake attorney,
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| Fake attorney |
یہ فیصلہ ایک قانونی مقدمے کے اہم نکات پر روشنی ڈالتا ہے جس میں مختلف فریقین کے درمیان زمین کے تنازعہ اور جنرل پاور آف اٹارنی کے جعلی ہونے کے الزامات شامل ہیں۔ اس فیصلے کے اہم نکات درج ذیل ہیں:
1. جنرل پاور آف اٹارنی کا غیر مؤثر ہونا:
عدالت نے یہ قرار دیا کہ زمین کے اصل مالکان کی وفات کے بعد جاری کیا گیا جنرل پاور آف اٹارنی قانوناً غیر مؤثر ہو جاتا ہے، اور اس کے بعد ہونے والی تمام کارروائیاں غیر قانونی اور باطل ہیں۔
2. فراڈ اور جعلسازی:
عدالت نے پایا کہ درخواست گزاروں نے فراڈ کے ذریعے ایک جعلی ثالثی معاہدہ اور ایوارڈ تیار کرایا، اور اس بنیاد پر زمین کی ملکیت حاصل کرنے کی کوشش کی۔
3. مقدمہ مردہ افراد کے خلاف:
عدالت نے واضح کیا کہ مردہ افراد کے خلاف دائر کردہ قانونی کارروائی قانون کی نظر میں باطل ہے اور اس میں کوئی قانونی وزن نہیں ہوتا۔
4. جعلی دستاویزات پر کارروائی:
عدالت نے فراڈ سے تیار کی گئی دستاویزات کو غیر قانونی قرار دیتے ہوئے ان کے ذریعے حاصل کردہ کسی بھی فائدے کو ختم کر دیا۔
5. مدعیان پر جرمانہ:
عدالت نے غیر ضروری اور جھوٹے مقدمے دائر کرنے پر درخواست گزاروں پر 10 لاکھ روپے کا جرمانہ عائد کیا، جو "اخوت فاؤنڈیشن" میں جمع کرانے کا حکم دیا گیا۔
6. قانونی اصولوں پر انحصار:
عدالت نے اپنے فیصلے میں سپریم کورٹ آف پاکستان کے مختلف فیصلوں کا حوالہ دیا تاکہ قانون کی وضاحت کی جا سکے اور اس فیصلے کو قانونی بنیاد فراہم کی جا سکے۔
یہ فیصلہ قانون کے نفاذ، فراڈ کے سدباب، اور قانونی نظام کی حفاظت کی ایک بہترین مثال ہے۔ عدالت نے یہ واضح کیا کہ فراڈ اور جھوٹے مقدمات کو برداشت نہیں کیا جائے گا اور ان کے خلاف سخت کارروائی کی جائے گی۔
Must read judgement
Stereo. HCJDA 38
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
Civil Revision No.525 of 2013
Mushtaq Ahmad etc.
Versus
Allah Ditta etc.
=================================================
JUDGMENT
Date of Hearing:
19.11.2024.
Petitioners by:-
Mr. Arshad Mehmood Chaudhry, Advocate.
Respondents No.1 to
5 by:-
Rai Nasir Iqbal, Advocate.
Applicant in
C.M.No.4-C/2018
by:-
Mr. Muhammad Waqas, Advocate.
CH. MUHAMMAD IQBAL, J:-
Through this
civil revision, the petitioners have challenged the validity
of judgment & decree dated 28.07.2011, passed by the
learned Civil Judge, Samundri, who accepted the
application under Section 12(2) CPC filed by respondents
No.1 to 6 and also assailed the judgment & decree dated
28.11.2012 passed by the learned Addl. District Judge,
Samundri, District Faisalabad who dismissed the appeal
of the petitioners.
2.
Brief facts of the case are that Capt. Nasir Ali
Shah, Razia Khatoon and Anwar Ali Shah were allottee
owners of total land measuring 303 Kanals 4 Marlas
situated in Chak No.47GB Tehsil Samundari District
Faisalabad fully described in the headnote as well as in
Civil Revision No.525/2013
2
para 1 of the application under Section 12(2) CPC. The
above said allottees/ owners allegedly executed a General
Power of Attorney in favour of Maqbool Ahmad son of
Sultan Bakhsh Gujjar. The said General Attorney entered
into an agreement of sale of the above said land with his
real brother Mushtaq Ahmad son of Sultan Bakhsh.
Thereafter the said general attorney also executed an
arbitration agreement on 18.07.1988 for settlement of
controversy and appointed Ch. Maqbool Hussain,
Advocate as an Arbitrator who passed an award dated
12.11.1988. After securing the award, petitioner No.1/
Mushtaq Ahmad filed an application under Sections 14 &
17 of the Arbitration Act, 1940, for making the award as
rule of court. In the said proceedings, the arbitrator Ch.
Maqbool Hussain, Advocate made a statement on
30.04.1989 and trial court while accepting the application
made the award dated 12.11.1988 as rule of court vide
order dated 30.04.1989. The above said decree was got
implemented in the Revenue Record through mutation
No.620, 621 and 622 dated 26.06.1990.
On 07.06.2007 respondents No.1 to 6 filed an
application under Section 12 (2) CPC for setting aside the
order dated 30.04.1989 on the ground that the impugned
General Power of Attorney in favour of Maqbool Ahmad,
agreement of sale of the land, agreement for arbitration,
Civil Revision No.525/2013
3
passing of award by the arbitrator as well as making of
award as rule of the court are result of fraud
misrepresentation, fabrication as the original owner of
the land had died much before the passing of ward as
well as making of award rule of the court as such same
are liable to be set aside. Petitioner contested the said
application by filing written reply on legal and factual
parlances. The trial court after framing the issues and
recording the evidence of both the parties accepted the
said application under Section 12(2) CPC vide judgment
& decree dated 28.07.2011. Being dejected petitioner
filed an appeal which was dismissed by the appellate
court vide judgment & decree dated 28.11.2012. Hence,
this civil revision.
3.
Arguments heard. Record perused.
4.
The core controversy revolves around issue No.4
which is as under:-
Whether the order and decree dated 30.04.1989
passed by Mushtaq Ahmad learned Civil judge,
Samundri is null and void, based on fraud,
ineffective and inoperative upon the rights of the
applicants and liable to be cancelled? OPA
The suit property was owned by Captain Nasir Ali
Shah and Anwar Ali Shah as well as Razia Khatoon.
As per death certificate (Ex.A6) Razia Khatoon died on
30.08.1987 and Syed Nasir Ali Shah died on
Civil Revision No.525/2013
4
16.01.1979 as evinces from his death certificate
(Exh.A7), whereas Anwar Ali Shah died on 13.12.1985
as reflected from his death certificate (Exh.A8). As per
statement of Waris Ali (AW-1) and Liaqat Ali (AW-2)
oral as well as documentary evidence proves the
arbitration agreement dated 18.07.1988 (Exh.A4) and
the alleged arbitration award dated 12.11.1988
(Exh.A5) were fraudulently got prepared by Mushtaq
Ahmad being collusive with his brother Ch. Maqbool
Ahmad (Attorney) after the death of owners on the
basis of general attorney allegedly issued by the said
owners (Syed Nasir Ali Shah, Anwar Ali Shah and
Syeda Razia Khatoon) but after the death of the
aforementioned principals, the general power of
attorney by operation of law became redundant and
thereafter any transaction made by the said general
power of attorney on the basis of said defunct
instrument (General Power of Attorney) that would be
considered as void, illegal and fraudulent in nature.
Even otherwise, all the proceedings including the
arbitration agreement and arbitration decision were
initiated against the dead persons. It is settled law that a
suit or proceeding initiated against a dead person are
nullity in the eyes of law and such flaw in itself is not
curable defect. Reliance is placed on the cases titled as
Civil Revision No.525/2013
5
Hafiz Brothers (Pvt.) Ltd. & Others Vs Messrs Pakistan
Industrial Credit and Investment Corporation Ltd. (2001
SCMR 1), Muhammad Yar (deceased) through LRs &
Others Vs. Muhammad Amin (deceased) through LRs &
Others (2013 SCMR 464), Farzand Ali & Another Vs
Khuda Bakhsh & Others (PLD 2015 SC 187). Further
reliance is placed on a case cited as Ch. Muhammad
Tufail Khan alias Tufaul Muhammad through Legal
Representatives Vs Zari Taraqiati Bank Limited through
Branch Manager (PLD 2007 Lahore 180) (D.B),
wherein learned Division Bench of this Court held as
under:-
“In answer to the first part of the question, it may be
held that according to the settled law, any suit or the
legal proceedings, instituted against a dead person
are nullity in law and in this behalf, we are fortified
by the judgment of the Honourable Supreme Court,
reported as Hafiz Brothers (Pvt.) Ltd. and others v.
Messrs Pakistan Industrial Credit and Investment
Corporation Ltd. 2001 SCMR 1, which declares as
follows:-
“There is no cavil with the proposition that the
institution of legal proceedings against dead
person is of no avail to the concerned litigant.
The learned High Court rightly came to the
conclusion that the suit of PICIC against
deceased-Mst. Inayat Begum was incompetent
and, therefore, nullity in law.”
Reliance is placed on the case titled as Capt. Shahid
Saleem Lone and others vs Ata-ur-Rahman and others
(1985 CLC 2555).
5.
Moreover, the petitioners filed an application
under Sections 14 & 17 of the Arbitration Act, 1940
Civil Revision No.525/2013
6
against a dead person and on behalf of said dead person,
his real brother while showing himself as his attorney
made conceding statement, which shows collusivety of
both the brothers who committed fraud in grabbing the
suit land by preparing a fake arbitration agreement and
obtaining award from the arbitrator which culminated
into making of award as rule of the Court. As the very
general power of attorney has been declared as defunct
and abated, thus any superstructure built on the basis of
the said instrument shall stand automatically dismantled.
Moreover, after the acceptance of the application under
Section 12(2) C.P.C, the revival of application under
Sections 14 & 17 of the Arbitration Act ibid hold no legal
worth and value therefore the same is liable to be buried
at its inception to save the precious time of Courts and
public. Reliance is place on cases titled as S.M.Shafi
Ahmad Zaidi through Legal Heirs Vs. Malik Hassan Ali
Khan (Moin) through Legal Heirs (2002 SCMR 338) &
Pakistan Agricultural Storage and Services Corporation
Ltd. Vs Mian Abdul Latif & Others (PLD 2008 SC 371).
6.
Learned counsel for the petitioners stated that
application under Section 12(2) CPC of respondents
No.1 to 6 was hopelessly time barred, suffice it to say
the respondents No.1 to 6 have mentioned in their
application under Section 12(2) C.P.C. that they
ivil Revision No.525/2013
7
instituted the application promptly after having
knowledge of the same. The petitioners failed to bring
on record any evidence to prove that the respondents
knew the pendency of the application under Section 14
& 17 of the Act ibid, passing of the Award as well as
order dated 30.04.1989 for making Award as rule of the
Court. As such the argument of learned counsel for the
petitioners carries no weight and same is hereby
repelled.
7.
Furthermore, that all the proceedings including
the arbitration agreement and arbitration decision were
initiated against dead person but also on the basis of
defunct general power of attorney which are result of
blatant misrepresentation and fraud, whereas fraud
vitiates the most solemn proceedings and any edifice so
raised on the basis of such fraudulent transaction, that
stand automatically dismantled and any ill-gotten gain
achieved by fraudster are not liable to be validated under
any norms of laws. Reliance in this regard is placed on
cases cited as Nawab Syed Raunaq Ali etc. Vs. Chief
Settlement Commissioner & Others (PLD 1973 SC 236),
Lahore Development Authority Vs. Firdous Steel Mills
(Pvt.) Limited (2010 SCMR 1097), Sindh Irrigation and
Drainage Authority Vs. Government of Sindh and others
(2022 SCMR 595) & Mst. Nazeeran & Others Vs Ali
Civil Revision No.525/2013
8
Bux & Others (2024 SCMR 1271). As the Arbitration
agreement, passing of Award by the Arbitrator as well as
order of the trial Court for making the said Award as rule
of Court have been declared as result of fraud and illegal,
thus revival of application under Sections 14 & 17 of the
Arbitration Act, 1940 would be useless as such the said
application also stands dismissed. Thus, the lower
judicial fora after taking into consideration the
respective pleadings, oral and documentary evidence of
the parties have rightly passed the impugned judgments
& decrees which do not suffers from any legal or
factual infirmity.
8.
Learned counsel for the petitioners has neither
pointed out any illegality or material irregularity, in the
impugned judgments & decrees passed by the Courts
below nor identified any jurisdictional defect. The
concurrent findings of fact are against the petitioners
which do not call for any interference by this Court in
exercise of its revisional jurisdiction. Reliance is placed
on the case titled as Mst. Zaitoon Begum Vs. Nazar
Hussain & Another (2014 SCMR 1469).
9.
In view of above, this civil revision is dismissed
being devoid of any merits with cost throughout.
10.
As the petitioners have filed frivolous litigation
without any just reason and such practice shall be
Civil Revision No.525/2013
9
discouraged and deprecated even by imposition of
substantial cost upon the fraudulent litigants, as such
while relying on recent pronouncements of the Hon'ble
Supreme Court of Pakistan titled as Capital
Development Authority, CDA through Chairman, CDA,
Islamabad Vs. Ahmed Murtaza and another (2023
SCMR 61), Province of Punjab through the Deputy
Commissioner, Collector District Gujranwala and
others Vs. Zulfiqar Ali and another (2024 SCMR 22)
and Javed Hameed and others Vs. Aman Ullah and
others (2024 SCMR 89) the petitioners are burdened
with special cost of rupees Rs.10,00,000/- to be
recovered as arrears of land revenue from the petitioners
and deposited with Akhuwat Foundation and receipt
thereof be placed on record. Let a copy of this judgment
be sent to the Akhuwat Foundation for information.
(CH. MUHAMMAD IQBAL)
JUDGE
Approved for reporting.
JUDGE