2000 PLP 1687 (MLD)

(v) Ameer and others v. S.H.O., Police Station Jhang 1998 PCr.LJ 2032.

8. On the other side, it is said that Alam Sher petitioner No.3 was in fact a tenant of Riasat Ali and was, therefore, already in possession of the property in question. That. he had stopped paying the rent. When it was demanded, a forged and fabricated document which is agreement to sell was made showing almost the entire amount of consideration having been paid to leaving a small balance to be paid later on at the time of the registration.

9. That in this connection, an inquiry was ordered by the District Magistrate and the report submitted by the Magistrate who had called both the parties, supported the version of Riasat Ali. That it has also come in the report that Riasat Ali was not produced either before the scribe or the stamp vendor and in fact Muhammad Aslam petitioner No.1 impersonated Riasat Ali before both of them. A copy of the report has been placed on the file which also reproduces the statement of scribe who stated that Muhammad Adam petitioner had impersonated Riasat Ali before him. Likewise, the report mentions about the affidavit of the stamp vendor Iqtidar Hussain, according to whom, Riasat Ali did not appear before him for the purchase of stamp paper. Both of them have further stated that the National Identity Cards were not produced before them.

10. This Court has also seen the copy of the plaint which is placed as an annexure with this writ petition as well as photo copy of the agreement to sell.

11. The fact that the petitioner Alam Sher was a tenant of Riasat Ali is neither reflected in the writ petition nor in the civil suit. An impression has been given that after the sale agreement, dated 5-5-1999 Alam Sher came into possession of this property. Thus, where has been a suppression of fact of this vital fact.

12. Every criminal case has its own circumstances and facts and these are to be appreciated accordingly. Circumstances of the case, therefore, should determine the relevancy of a case-law.

13. This Court having gone through the case-law cited by the learned counsel for the petitioners feels that under the circumstances of this case the case-law cited above was not applicable.

14. Section 195 of the Cr.P.C. which is relevant to the present case, reads as follows:-- "Prosecution for contempt of lawful authority of public servants: - Prosecution for certain offences against public justice: Prosecution for certain offences relating to documents given in evidence (1) No Court shall take cognizance-- (a) of any offence punishable under sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate; (b) of any offence punishable under any of the following sections of the same Code namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding, in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (c) of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding i.e. any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. (2) In clauses (b) and (e) of the subsection (1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Registration Act, 1908. (3) ................................................................................... (4) ................................................................................... (5) ..................................................................................

15. The Select Committee which drafted section 195 of Cr.P.C. stated its purpose in the following words:-- "In short, section 195 now deals with limitations that exist to the cognizance of offences by a Court. While if a Court before whom an offence mentioned in section 195 is committed wants to take action against the delinquent, it can only proceed under section 476."

16. This shows that section 195 applies only to such cases which have a close connection between the offence and the proceedings, rather 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.

17. Section 476 of the Cr.P.C. lays clown the procedure to be followed for case referred to section 195 of the Cr.P.C. and section 476-A relates to forwarding of cases for trial by Courts having jurisdiction.

18. Reliance may be place on the case of Muhammad Shafi, PLD 1992 Lahore 178, where a similar question arose and the Full Bench of this High Court appreciated the purpose of section 195 of the Cr.P.C. in the context of sections 190, 476 and 476-A of the Code. It was said:- "Section 190 lays down the general roles 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 arid it is only by misleading the Courts and thereby preventing 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 proceedings of the Court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. Nor can it be said that the offence of the forgery was against the administration of justice in a case in which the offence was committed, say, ten or twenty years before the suit in which the forged document was produced or given in evidence? The answer must obviously be in the negative. The forger must have, before the suit, used the forged document on a number of occasions in deceiving a number of persons. And when his fraud and forgery came to light and the real owner or the persons defrauded were preparing to take criminal proceedings, he hit upon the clever device of instituting a civil suit and producing the forged document in the civil suit. He would, then, on the view contended for by the petitioner, be able to say: 'Well, I have produced the document in the Civil Court; you have to wait till that Court has finally decided the genuineness or otherwise of the document, for unless that is done, that Court will not be in a position to say whether an offence of forgery was committed or not and to lodge a complaint under section 195, Cr.P.C.' Unfortunately, civil suits usually take very long to decide and, in practical terms, it may amount to completely defeating the ends of justice. On this view, therefore, the Civil Courts will become a place for the protection of criminals. This obviously could not have been the intention of the law. The cause of action for proceeding against the forger arose immediately when the offence of forgery as defined in section 463 of the P.P.C. was committed. The commission of that offence was not only intended to deprive the real owner of his property but had also enabled the forger to deceive others and to deprive them of money. No proceedings were pending in any Court at that time. There was, therefore, no question of the offence, at the date of its commission, being against the Court or the administration of justice, nor did it then, in any way sully the proceedings of the Court, for none were pending."

19. Reliance in this connection may also be placed on the case of Abdul Jabbar, 1998 PCr.LJ 1126.

20. This Court respectfully follows the rule laid down in the case of Muhammad Shafi and is of the view that two independent remedies were available to a person involved in a case having circumstances as the one in hand and both the remedies can be availed of simultaneously.

21. After hearing the learned counsel from both sides, this Court feels that no good grounds have been made for quashment of the F.I.R. The writ petition is dismissed. H.B.T./M-187/L Petition dismissed.