2000 PLP 1904 (SCMR)

JAVED IQBAL, J.

This appeal by leave of the Court is directed against judgment, dated 19-5-1993 passed by learned Single Bench of Lahore High Court, Lahore, whereby order, dated 1-11-1990 of learned Special Judge Anti-Corruption, Punjab (Lahore) was kept intact and complaint filed by the appellant was dismissed. .

2. Precisely stated the facts of the case are that appellant who had been performing his duties as Special Magistrate, WAPDA filed a private complaint against the respondents namely Muhammad Nawaz, Ex-Director (R&CP), WAPDA, Ghulam Yasin, Nasruallah Khan (Ex-Special Magistrate WAPDA), Muhammad Aslam, Raja Saeed Akhtar, (Ex-General Manager WAPDA), Allah Bakhsh (Additional Director, Anti-Corruption), Fazal Azeem (Assistant Director, Anti-Corruption. Lahore) under section 411/ 381/109/166/171/166/477-A/201/161/167, P.P.C. and section 5(2) of the Prevention of Corruption Act, 1947, in the Court of learned Special Judge, Anti-Corruption, Lahore, on 1-11-1990 wherein various serious allegations of corruption, tampering with official record, theft of judicial files with ulterior motives and receiving of an amount of Rs.30,000 in lieu of alleged sale of judicial files were levelled against the respondents. The learned Special Judge after recording the statement of complainant dismissed the complaint by means of order, dated 1-11--1991- Being aggrieved Revision Petition bearing No.602 of 1990 was. filed in the Lahore High Court, Lahore, which was also dismissed vide judgment, dated 19-5-1993.

3. It is mainly contended by the appellant who argued for himself that the learned trial Court has not appreciated the evidence produced alongwith the complaint and contents of complaint were also not perused properly which resulted in serious miscarriage of justice and complaint was dismissed without affording proper opportunity of hearing. It is also contended that the order of learned trial Court is laconic and illegal for the reason that an application moved alongwith the complaint for summoning certain officials/officers alongwith relevant record was not dealt with properly. It is urged with vehemence that the learned trial Court has erred while holding that it had no territorial jurisdiction to decide certain offences as alleged in the complaint. It is further argued that complaint could not have been dismissed under section 203, Cr.P.C. as has been done by the learned trial Court It ;v next contended that the learned Single Bench of Lahore High Court has also not appreciated the legal and factual controversy in a proper manner and the points agitated in revision were neither dilated upon nor decided in accordance with law. It is pointed out that the provisions as contained in section 195, Cr.P.C. could not be made applicable but the learned Courts below have erred in holding that the complaint was not competent in view of the bar as imposed under section 195, Cr.P.C.

4. Ch. Arshad Ali, Advocate Supreme Court appeared on behalf of State and vehemently controverted the viewpoint as canvassed by the appellant by contending that no illegality or irregularity whatsoever has been committed by the Courts below and the conclusion as derived is strictly in accordance with law and as such the question of miscarriage of justice does not arise. It is contended that the complaint was filed at a belated stage which had rightly been dismissed being vague and vexatious.

5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the orders passed by learned Special Judge Anti-Corruption and learned Single Bench of Lahore High Court, Lahore. We have also gone through the contents of complaint with care and caution. The pivotal question as to whether the complaint could have been dismissed under section 203, Cr.P.C. has been considered in the light of provisions as contained in the said section and a bare perusal whereof would show that the complaint can be dismissed without having preliminary inquiry as no such embargo has been placed on the Court concerned. In this regard reference can be made to PLJ 1997 Cr.C 5 + 1996 PCr.LJ 1615. It is, however, to be kept in view that a discretion so conferred upon must be exercised judiciously and in no manner it should be arbitrary or capricious and should be exercised with diligent application of mind. After having in depth scrutiny of complaint the same was dismissed by the learned Special Judge, Anti-Corruption being baseless vide order, dated 1-11-1990 which can be equated to that of a specific order which is required to be passed before dismissal of such complaint. In this regard reference can be made to 1971 PCr.LJ 358 + AIR 1939 Sindh 208 + AIA 1938 Sindh 1992 + AIR 1928 Bom. 290 (DB). The language as employed in section 203, Cr.P.C. specially the words "if any" (inserted by Act II of 1926) cannot be stretched too far to hold that inquiry would be must. We have also dilated upon the said proposition with another angle i.e. as to whether in each and every complaint the provisions as contained in section 202, Cr.P.C.. must be followed? The answer. would be negative as section 202, Cr.P.C. itself negates such assertion that each and every complaint irrespective of its merits must be got inquired into until the Court concerned thinks it fit and proper. 8 This is not the object of section 203, Cr.P.C. that in every case an inquiry must be held. (PLD 1998 Lah. 539 + .AIR 1920 Pat. 270). It is well-settled by now that the Court concerned must scrutinize the contents of complaint, nature of allegation made therein supporting material in support of accusation, the object intended to be achieved, the possibility of victimization and harassment if any to ensure itself that no innocent person against whom allegations are levelled should suffer the ordeal of protracted tithe consuming and cumbersome process of law. In this regard we are fortified by the dictum laid down in the following authorities:-- "1988 PCr.LJ 864 (FSC) + PLD 1984 Lah. 323 + PLD 1964 Kar. 316 + AIR 1963 SC 1430 + AIR 1927 Mad. 19 (FB) + AIR 1926 Sindh 188 (DB) + AIR 1963 SC 1430. "

6. The provisions as contained in sections 202 to 204, Cr.P.C. if read together would show that a proper safeguard has been provided by the Legislature which showed its such intention by using the words "if any" and "sufficient grounds for any" in section 203, Cr.P.C. and accordingly the frivolous and vexatious complaints must be buried at their inception where no prima facie case is made out. It has been observed with concern that the learned Single Bench of. Lahore High Court, Lahore, has not dilated upon certain important questions thoroughly duly agitated by the appellant. For instance as to whether a civil servant was competent to file a private complaint by invoking the jurisdiction as conferred upon the learned Special Judge, whether section 195, Cr.P.C. constitutes a bar for filing such complaints, whether the scheduled and non-scheduled offences can be tried together by learned Special Judge and whether proper prescribed mode was adopted by the learned Special Judge after taking cognizance in the matter? We intend to discuss the above questions to, decide the controversy once for all. Let we make it clear at the outset that there is no legal bar whatsoever regarding institution of complaint by a- Government servant and it may be filed for the redressal of genuine grievances. No distinction has been laid down by any law in filing of complaint in-between the Government servant and that of a private person. At this juncture it is to be noted that where a complaint is filed against a Government servant the prescribed mechanism under the Pakistan Criminal Law Amendment Act, 1958 and the Prevention of Anti-Corruption Act, 1947, (Act II of 1947) is to be followed. No doubt that by virtue of section 4(1) of Pakistan Criminal Law Amendment Act, 1958, a Special Judge has jurisdiction to take cognizance of any offence committed or deemed to have been committed upon receiving a complaint of fact irrespective of the fact whether it has been instituted/filed by a Government servant or a private person which constitute such offence. There is, - however, a difference in-between "taking of cognizance" and "commencing of trial" as the same are neither interchangeable nor C synonymous terms, and thus, trial would be commenced after completion of formalities as envisaged in section 6(5) of the Pakistan Criminal Law. Amendment Act, 1958, which is reproduced hereinbelow for. ready reference:-- "6(5). Notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law, previous sanction of the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act. Provided that in case where the complaint or report referred to in subsection (1) of section 4 is not accompanied by such sanction the a Special Judge shall,, immediately on receipt of the complaint or report, address, by letter, the appropriate Government in the matter, and if their required sanction is neither received nor refused within sixty days of the receipt of the letter by the appropriate Government, such sanction shall. be deemed to have been duly accorded: Provided further that no such sanction shall be required in respect of a case transferred under the proviso to subsection (2) of section 4 or by virtue of subsection (3) or subsection (4) of section 5, if such sanction in respect thereof has been duly accorded or deemed to have been so accorded before the case is so transferred. " A bare perusal would reveal that sanction to get a public servant prosecuted is a condition precedent to the commencement of a trial. The provisions of section 6(5) make it crystal clear that where no such sanction is attached with the complaint the Special Judge, after receiving the complaint without further loss of time approaches the appropriate Government for having a sanction and in case it is neither accorded nor refused within a period of 60 days such sanction shall be deemed to have been so accorded. It must be kept in view that we are talking about prosecution sanction for a complaint which was filed on 1-11-1990 and we are fully conscious about the subsequent developments and latest prevalent position in this regard as the provisions of section 197 Cr P C and section 6(5) of the Pakistan Criminal Law Amendment Act 1958 being repugnant to Injunction of Islam 'have ceased to have effect (PLD 1992 SC 72) The prevalent position thus would be that sanction for a prosecution under section 197, Cr.P.C. for taking cognizance is not a mandatory prerequisite. In this regard reference can be made to PLD 1994 SO

281. Admittedly the complaint was filed without any sanction from appropriate Government, and thus, at first instance it was mandatory for the learned Special Judge to dilate upon the said aspect of the matter to find out . as to whether the complaint could have been entertained due to want of sanction or otherwise? No inquiry or probe worth the name was made in this respect which aspect also escape noticed from the learned Single Bench of Lahore High Court, Lahore. The complaint should have been dismissed or returned back to the complaint due to want of sanction without determining its truth or falsity. In this regard reference can be made to AIR 1964 Bom. 191, No doubt that meanwhile a few retirements have taken place but "protection to public servant ceasing to hold office is available when offence attributed relates to a period when person concerned worked as public servant in view of the peculiar circumstances of the case.

7. The learned Single Judge of the Lahore High Court, Lahore, has also not examined properly the question as to whether scheduled offences could have been tried with non-scheduled offences or otherwise. The learned H Special Judge has erred while holding that non-scheduled offences could not be tried with scheduled offences by ignoring the provisions as contained in section 5(7) of the Pakistan Criminal Law Amendment Act, 1958, which is reproduced hereinbelow for ready reference:-- "5(7). When trying an offence under this Act a Special Judge may also charge with and try other offence not so triable with which the accused may, under the provisions of the Code of Criiivnal Procedure, 1898, relating to the joinder of charges, be charged at the same trial." The said provisions enable the learned Special Judge to charge an accused and commence trial for an offence other than those specified in the Schedule as provided under section 5(7) of the Pakistan Criminal Law Amendment Act, 1958, alongwith the provisions contained in sections 234 to 238, Cr.P.C.'The only irresistible conclusion which could be drawn is that learned Special Judge is fully competent to dilate upon and decide the non scheduled offences alongwith scheduled offences subject to the provisions of law as mentioned hereinabove. It is well settled by now that "the Act empowers a Special Judge to charge an accused with to and try him for offences other than those specified in the Schedule. In the course of judicial proceedings it may be disclosed that the criminal transaction under trial involves a different offence. In case a different offence appears, the decision of the Court extends not only to the offence with reference to which the proceedings originally commenced but also to other offences that may subsequently appear to be involved in the. transaction (1927 PC 44 = 1946 Pat. 47 = 26 Cal. 786 = 1935 Rang. 198 = 1946 Sind 23 = 47 Cr.LJ 512 = 12 Cr.LJ 346 = 10 Ind. As. 946). Ordinarily a Special Judge cannot try , an offence under section 468 of the Penal Code. But if an offence under section 468 and an offence under section 5 of Act II of 1947 form parts of the same transaction, the two offences could be tried together by the same Court in a single trial. This power may be referred to as the additional jurisdiction of the Special Judge (1956 AU 910)". It is to, be noted that "offences not in Schedule cannot be tried by a Special Judge except when another offence can be ioined together with any of the scheduled offences under sections 234 to

238. Cr.P.C." (PLD 1996 Lab. 266 + PLD 1962 Lah. I 262 + PLD 1966 Kar. 786 (SC) + PLD 1971 SC 467).

8. We have also dealt with the provisions as contained in section 195, Cr.P.C. to see that up to what extent it does constitute a bar in such-like cases and whether appellant was competent to file the complaint against respondents who all were Government officials. The general rule is that any person irrespective of the fact whether he is aggrieved or not and his interest is at stake or otherwise having knowledge about the commission of any offence may set the law in motion but the provisions as contained in sections 195, Cr.P.C. to 198, Cr.P.C. contain exceptions to the said general rule from taking cognizance of certain offences unless the functionary concerned institutes a complaint. It is well-settled by now that "provision of section 190, Cr.P.C. lays down the general rule that any person can set the criminal law in motion but section 195, Cr.P.C. is one of the exceptions to that rule -- Provision of section 195, Cr.P.C. provides that, in case offence under section 195, Cr.P.C. only the public authority concerned and Court has the right to file a complaint and unless there is a complaint by such public authority or Court, as the case may be, no Criminal Court shall take cognizance of these offences-- Every offence mentioned in section 195, Cr.P.C. though affects a private person, yet he stands deprived of his general vested right to have recourse to the criminal law. The purpose of enacting section 195, Cr.P.C. has long been well-identified. It may at the best be considered in the context of sections 190, 476 and 476-A of the Code. Section 190 lays down the general rule that any person can set the criminal law in motion and section 195 is one of the exceptions to that rule. The latter says that in the category of cases mentioned in its clause (a), only the public authority concerned and in the category of cases mentioned in clauses (b) and (c) only the Court concerned has right to file a complaint and unless there is a complaint by such public authority or Court, as the case may be, no criminal Court shall take cognizance of these offences. Thus, though every offence mentioned in section 195 must necessarily affect a private person, yet he stands deprived of his general vested right to have recourse to the criminal law. One must naturally ask--what is the reason for so depriving him? To deprive a person of his right to redress is a strong thing and there must needs be strong reasons or legislative purpose behind it. These offences have been selected for the Court's control because of their direct impact on the judicial process. It is the judicial process, in other words, the administration of public justice which is the direct and immediate object or victim of those offences and it is only by misleading the Courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the of the Court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complainant against the guilty party". There is no cavil to the proposition "it seems to follow inexorably that clause (c) of section 195(1) will fail in its object if the literal construction contended for by the petitioner counsel is adopted. The adoption of that construction will inevitably result in extending the application for clause (c) to cases to which it was not, and could not be intended to apply. The purposive approach to the interpretation of clause (c) of section 195(1) on the other hand leads and leads ineluctably, to the construction that clause applies to only those offences that have a 'close nexus between the offence and the proceedings"; in other words, it "contemplates cases of tampering with the documents on the record of a Court or cases of previously forged documents being used as genuine in certain proceedings". This view is reinforced by the following observation of the Select Committee who drafted this clause in 1923:-- "In short, section 195 now deals with limitations that exist to the cognizance of offences by a Court. While if a Court before whom (the underlining is mine) an offence mentioned in section 195 is committed wants to take action against the delinquent, it can only proceed under section 476. " (PLD 1992 Lah.178).

9. In the light of touchstone of the criterion as discussed hereinabove we have examined question of alleged forgery and tampering with judicial files as alleged by the complainant and in our considered view it attracts the provisions as contained in section 195(c), Cr.P.C. and complaint could have been filed by "Court concerned" against the delinquents who were party in the proceedings. It is an admitted feature of the case that the complainant was neither the "Court concerned" nor "party in the proceedings" which .were being conducted in the Court. It is worth mentioning that the appellant was substituted with Mr. Nasrullah Khan, Magistrate who had taken over his charge on 16th February, 1984 and, therefore, the complaint could have been filed by him. It hardly needs any elaboration that "a Court continues to be a Court notwithstanding the change of Presiding Officer and consequently a successor in office is equally competent to make a complaint in respect of offence committed before his predecessor". (PLD 1976 Pesh. 64 + AIR 1940 Lah. 242 (DB) + AIR 1928 Lah. 759) and after taking over Mr. Nasrullah Khan alone was competent to do the needful and . not the complainant.

10. As mentioned hereinabove section 195(I)(c) could be made applicable to the offences committed in or in relation to proceedings in Court and admittedly the complainant was neither performing .his duties as Magistrate nor was a party concerned. It is worth mentioning that the provisions as contained in section 195(1)(c) contemplate "cases of tampering with the documents" it contemplates cases of tampering with the documents on the record of a Court or cases of previously forged documents being used as genuine in certain proceedings and applies to only those offences that have a "close nexus between the offences and the proceedings". (PLD 1992 Lah. 178 = 1992 Law Notes 301 (DB) Where an offence appears to have been committed by a party to any proceedings in any Court in respect of a document produced or given in evidence in such proceedings, no Court shall take cognizance except on the complaint in writing of the Court concerned or some other Court to which it is subordinate. The conditions necessary for the applicability of section 195(1)(c) of the Code are: (i) the offence mentioned should be committed by a party to the proceedings in Court, and (ii) such offence should be in respect of a document produced or given in evidence in such proceedings (1960 PCr.LJ 241 (sic) (DB)). 11.. In the light of what has been discussed hereinabove and in view of the provisions as contained in section ],95, Cr.P.C. it can be concluded safely that only the "public servant" or "Court concerned" ue..competent to file such complaints which cannot be filed by a private person to respect of any of the offences mentioned in section 195, Cr.P.C. and in case such complaints are instituted the "Court concerned" cannot take cognizance. In this regard reference can be made to 1990 PCr.LJ 97 + AIR 1927 Rang.

61. In short it can be concluded that the appellant was not competent to file complaint regarding tampering with the record and removal of judicial files and complaint could have only been filed by the successor in office,

12. LA careful scrutiny of the entire record would reveal that the learned Special Judge has failed to observe the prescribed procedure as enumerated under the relevant provisions of Pakistan Criminal Law Amendment Act, 1958, and after receiving the private complaint filed by the appellant he could have obtained sanction from the appropriate Government before initiation of any proceedings. The learned Special Judge has exceeded his jurisdiction and the statement of appellant was got recorded without dilating upon and deciding the question of sanction which was necessary arms initially the complaint has been filed against the Government functionaries. In this regard reference can be made to PLD 1962 (W.P.) Kar.

738. The factum of delay has also been ignored by the learned Special Judge. We are conscious of the fact that no timc limit has been fixed for filing such complaint but there should be some limit as the complainant cannot be allowed to file such 0, complaints in accordance with his own time schedule, convenience and whims and wishes. The factum of delay creates doubt regarding the authenticity and genuineness of the allegation on the one hand and the possibility of fabrication on the other. It is worth mentioning here - that allegedly the judicial files were sold in the year 1984 but the complaint was got lodged on 1-11-1990 without any plausible justification. The appellant was transferred on 16th February, 1984 and thereafter he was not competent to file such complaint.

13. Besides the legal technicalities as discussed hereinabove the complaint itself seems to be vague and vexatious. It appears from scrutiny of complaint that all the alleged offences were never committed simultaneously but with interval and periods in-between runs into years but no complaint was filed at the opportune moments. As to why the complainant awaited for such a long period is a mystery but it cannot be without reasons which could, only be explained by the appellant alone. It is apparent from record that prima facie sufficient evidence is lacking to show that Ghulam Yasin (respondent) had delivered two judicial files to Raja Saeed Akhtar in lieu of Rs.30,000 as the complainant had himself admitted that neither the said transaction was made in his presence nor the amount was paid by Raja Saeed Akhtar in his presence. The alleged offence was committed as per complainant in the year 1984 and . certainly it would not be possible to substantiate the accusation levelled under section 161, P.P.C. The allegation that investigation against the complainant was not transparent and necessary documents were not made part of challan could neither be dilated upon nor decided by means of complaint as the matter is pending before Court and the complainant may approach the same for the redressal of his grievances. The investigating authorities cannot be directed to conduct investigation by adopting a particular mode and as per whims and wishes of the complainant who would be at liberty to produce relevant documents in his defence while facing the trial. No complaint could have been filed regarding tampering in S judicial files as it was the exclusive prerogative of the Court concerned as mentioned hereinabove Mr. Nasrullah Khan had taken. over on 16th February, 1984 and was alone competent to initiate criminal proceedings by lodging complaint and the appellant had no locus standi to file such complaint after 16-2-1984 in. view of the bar as contained in section 195 as discussed hereinabove.

14. We have discussed all the points and objections as raised and agitated by the appellant while arguing the matter. Be as it may we' are in agreement with the conclusion as drawn by the learned Special Judge Anti-Corruption by whom certain mandatory -formalities could T not have been completed but can be ignored as it does not amount to miscarriage of justice or grave prejudice in view of the complaint which itself is without any substance. The appeal being devoid of merits is dismissed. N.H.Q./A-89/S Appeal dismissed.