2002 P Cr (PLP)

2. The facts leading to this revision are that the applicant had submitted an application for grant of Succession Certificate (C.M.A. No. 17 of 1982) in respect of amounts left in Bank by his deceased father. Alongwith the application he annexed affidavit of no objection of his step-mother Mst. Nargis Perveen the widow of Mairajuddin and the Succession Certificate was, accordingly, granted by the learned District Judge, Karachi on 7-3-1982. Complainant, however, approached the District Judge, Karachi denying her signature on the aforesaid affidavit and filed an application under section 476, Cr.P.C. for taking action against the applicant as the applicant had drawn the amount on the basis of Succession Certificate and misappropriated the same. After issuing notice to applicant learned District Judge by his order, dated 1-3-1988 directed that the applicant was liable for action. Consequently, he filed complaint for an offence under section 193, P.P.C. in the Court of concerned Judicial Magistrate where trial was duly held and the witnesses Muhammad Saleem senior clerk of District Court, South and the complainant Mst. Nargis Parveen were examined. The statement of applicant was recorded under section 342, Cr.P.C., but he declined to examine himself on oath under section 340(2), Cr.P.C. He led defence and examined one witness namely Maqbool Anwar. On the basis of evidence on record learned Judicial Magistrate rendered his finding of conviction and sentence as mentioned above against which the appeal failed.

3. Learned counsel for applicant referred to the provisions of sections 195(1)(b), 476(1)(2)(b) and 476-A, Cr.P.C. and contended that, mandatory provisions laid down therein had not been complied with as the Court of District Judge had not taken cognizance and tried the matter itself within the meaning of subsection (1) of section 476, Cr.P.C., therefore, judgment of Judicial Magistrate being without jurisdiction the conviction is liable to be set aside. He further took the plea that this was, at the most a case of revocation of the Succession Certificate within the meaning of section 263(b) of the Succession Act and was a civil matter, the criminal proceedings were as such not justified. He placed reliance on the authorities; Sher Ada: Khan v. Sahib Din 1989 PCr.LJ 1299, Abdul Hakeem v. The State 1994 SCMR 1103; Ch. Feroze Din v. Dr. K.M. Munir 1970 SCMR 10,Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104 and Mansab Ali v. Amir PLD 1971 SC 124.

4. Learned counsel for complainant Nargis Perveen submitted that the conviction was rightly recorded for an offence under section 193, P.P.C. as the applicant had filed a forged document. He argued, that in the Schedule to the Criminal Procedure Code the offence under section 193, P.P.C. is to be tried by the First Class Magistrate, and the complaint was rightly forwarded to Judicial Magistrate under section 476-A, Cr.P.C. All the same, the point of jurisdiction was never raised before the trial Court nor before Appellate Court and as such may not be allowed at this stage. According to him this is a serious offence against the society coupled with fraud played upon Court, and further in pursuance of his criminal act the applicant had drawn the amount, therefore, he does not deserve any concession and requires to be dealt with seriously. He relied on Mst. Sadiqa Shafi v. SQN. LDR. (Retd.) Naveed Najum 1998 PCr.LJ 1106 and Abdul Haleem v. State PLD 1999 Pesh. 66.

5. Learned State Counsel supported the appellate order and submitted that the case was rightly forwarded to the Judicial Magistrate under section 476-A, Cr.P.C. and sufficient evidence had come on record to establish the guilt of applicant.

6. As regards the question, that the District Judge did not try the case himself, therefore, the proceedings taken by Judicial Magistrate were without jurisdiction, reliance was placed by the learned counsel for applicant on the case-law mentioned above, for interpretation of sections 195 and 476, Cr.P.C., but, in fact no support was forthcoming in his favour through the cited authorities.

7. In Abdul Hakeem v. The State 1994 SCMR 1103 the appellant had stood surety for an accused, who later on absconded away and the surety bond of the appellant was forfeited which order was challenged in revision before High Court wherein he produced a forged death certificate of accused. On an application made by the complainant of the main criminal case the High Court ordered that charge be framed against the appellant for an offence under section 193, P.P.C. The order of High Court was challenged in the Supreme Court where the legal point was examined, and while approving the view expressed in Sher Adat Khan v. Sahib Din 1989 PCr.LJ 1299 it was held that section 476, Cr.P.C. provides a procedure other than the one mentioned in section 195, Cr.P.C. and authorities the Courts to try the case itself. The following observations bear relevance to the point under discussion:-- "It is an admitted position that the document alleged to have been forged was filed by the appellant for the purpose of obtaining relief. The alleged offence, therefore, was allegedly committed in a judicial proceeding in the High Court. Section 195, Cr.P.C. prohibits taking cognizance of any offence by the Courts which have been mentioned in clauses (a), (b) and (c) of subsection (1) of section 195, Cr.P.C., except on a. complaint by a public servant or Court as mentioned therein. As clause (b) inter alia refers to sections 193, 194 and 195, P.P.C., cognizance of offence under these provisions can be taken on a complaint in writing by the Court in which the offence has been committed. However, section 195, Cr.P.C. has to be read with section 476, Cr.P.C. which provides procedure in cases mentioned in section 195(1)(b)(c), Cr.P.C. Every civil, criminal or revenue Court is empowered and has the discretion to take cognizance of the offence referred in section 195(1)(b) or (c), which has been committed in or in relation to a proceeding before it and try the same in accordance with the procedure prescribed for summary trial in Chapter XXII, Cr.P.C. Such procedure can be adopted by the Court as its own discretion, which should be exercised judiciously and not arbitrarily, taking into consideration the facts and circumstances of the case. Such summary procedure is intended to prevent the abuse of the process of law and to punish the offender by a summary trial which is necessary to establish confidence in Court, authority of Court and process of law."

8. Since, the view taken in Sher Adat Khan's case 1989 PCr.LJ 1299 was approved by the Honourable Supreme Court it would be beneficial to quote precisely the relevant observations made therein which run:-- "One thing is, however, clear that under section 476, Cr.P.C. the Court itself is the complainant and at the same time empowered to try the case and punish the culprits in a summary manner. It is also clear, that it is the Court and the Court alone in which forgery or perjury is committed to proceed against culprits under section 476, Cr.P.C. Under section 476-A Cr.P.C. if the Court considers the matter to be adjudicated upon by some other Court of competent jurisdiction it may refer the case to that Court." (underlining supplied for the purpose of emphasis)

9. In Ch. Feroze Din v. Dr. K.M. Munir 1970 SCMR 10 the necessary requirements for an action under section 476, Cr.P.C. were considered and following guidelines were laid down:-- "Under section 476 of the - Criminal Procedure Code, a prosecution is not to be launched as a matter of course for any and every offence alleged to have been committed in the course of judicial proceedings. A necessary requirement for such an action is that it must be taken in public interest and not allowed to be used as a handle in the hand of one party to wreak a private vengeance or satisfy a private grudge against the other."

10. A plain understanding of the principle laid down in the authorities cited above, and joint reading of the provisions of sections 195, 476 and 476-A, Cr.P.C. would make out an undisputed legal position that the Court where forgery or perjury is committed is competent to proceed itself against the culprits, but when it considered the matter to be adjudicated upon by some other Court of competent jurisdiction it may forward the case to that Court under section 476-A, Cr.P.C. The contention raised on behalf of the applicant that the case could not be forwarded by the District Judge, Karachi to the Judicial Magistrate thus, stands repelled on the footing of authorities, cited by learned counsel himself. Nevertheless, it may be observed that this is the law declared by the Honourable Supreme Court and is to be followed by the Courts below.

11. Learned counsel for applicant also took a plea that the Judicial Magistrate was not competent to try the offence under section 193, P.P.C. In this regard it my be noted that section 476, Cr.P.C. envisages a self-contained procedure and the legal position is to be examined in that perspective. The contention raised in relation to powers of Judicial Magistrate stands overruled in view of the above dictum of Honourable Supreme Court. Nevertheless, it was rightly pointed out by Mr. Attaullah Khan learned counsel for complainant that Schedule to Cr.P.C. empowers the Judicial Magistrate of First Class to try the offence under section 193, P.P.C. It may be emphasized that despite the bars contained in section 195(1), Cr.P.C. the Judicial Magistrate of First Class was competent to try the offence when a case was forwarded to him by the Court where the offence had been committed. Section 195, Cr.P.C. is to be read with section 476, Cr.P.C. as the latter provision makes a specific and pointed reference to offences mentioned in section 195(1), Cr.P.C. Further, as held by Honourable Supreme Court in Abdul Hakeem's case (supra) the interpretation of section 476, Cr.P.C. made in Sher Adat's case finds support from section 476-A, Cr.P.C. which empowers the Court that if in any case it considers that a person accused of any of the offences shall not be tried under section 476(1), Cr.P.C. then it may, after recording the facts constituting the offence and the statement of the accused person, forward the case to a Court having jurisdiction to try it. Consequently, the argument that trial by Judicial Magistrate was not competent also looses its force.

12. The case Mansab Ali v. Amir PLD 1972 SC 124 was cited by learned counsel for applicant to argue that if mandatory condition for the exercise of jurisdiction by a Court, Tribunal or Authority is not fulfilled the entire proceedings which follow become illegal and suffer for want of jurisdiction and any order passed in constitution of such proceedings in appeal or revision equally suffers from illegality and is without jurisdiction. This authority is of no assistance to applicant's case as there is no violation of any mandatory condition in the instant case.

13. In the case of Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104 while examining the case under section 13-B of Pakistan Rehabilitation Ordinance (Ordinance 19 of 1948) it was observed that where Legislature clothes an order with finality it always assumes that the order which it declares to, be final is within the powers of the authority making it. The present case cannot be compared with one, under Rehabilitation Laws and secondly, the powers of District Judge as also the Judicial Magistrate and their competence to take proceedings were not open to question. Similarly, the observations made in Ch. Feroze Din's case 1970 SCMR 10 (supra) do not come in the way of launching the proceedings as admittedly the applicant had used a forged affidavit in the District Court and had also drawn the amount which he retained for a period of three years. He daringly used in the District Court a forged affidavit, the proceedings were, as such, validly taken in public interest.

14. The case-law cited by Mr. Attaullah Khan, Advocate for Mst. Nargis Perveen, the complainant, is on the point that forgery is one of the most heinous, social and moral offence punishable under the law and has also been declared as heinous offence by the Holy Qur'an. I would respectfully agree with this view and approve the action already taken by the Courts below in this perspective. The view expressed by Lahore High Court in Mst. Sadiqa Shafi v. Sqn. Ldr. (Retd.) Naveed Najum 1998 PCr.LJ 1106 is almost on the same point.

15. The argument that revocation of Succession Certificate under section 263(b) of the Succession Act would have been a better course can also not be entertained in view of heinous offence committed by the applicant against the society and his criminal liability cannot be brushed aside on account of the above provisions of Succession Act. 16: On a thorough examination of the factual and legal aspects, I am inclined to hold that there is no legal flaw in the proceedings taken by the District Judge in forwarding the case to Judicial Magistrate and the Judicial Magistrate had legally held trial and on proper assessment of the evidence oral and documentary produced before it recorded a correct finding of conviction and sentence for offence under section 193, P.P.C. The order of conviction and sentence is on sound footing and calls for no interference. It is enough that the applicant was awarded a short sentence. The instant application is without merits and is, accordingly, dismissed. N.H.Q.-/M-249/K Revision dismissed.