2020 P Cr (PLP)

MUJAHID MUSTAQEEM AHMED, J.

By filing instant writ petition in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, petitioners have made following supplication:- " ..that this Writ Petition may kindly be accepted and, by issuing appropriate writ, Orders, dated 26-09-2013, Annexure-A and 8-10-2013 Annexure-A/1 and letter No. 1494/03 dated 08-10-2013, Annexure-A/2 and all the subsequent steps, including making of complaint by Abdul Ghaffar respondent No.4, may graciously be declared as illegal, ultra vires, null, void and without lawful authority and the same may kindly be set-aside as such, being not maintainable in law and on facts, coram non judice, unjust, improper, arbitrary, capricious and against the principle of natural justice."

2. Brief facts of the case as gathered from record with the assistance of learned counsel for the parties are that on filing of subsequent suit for declaration by present petitioners titled "Muhammad Saddique v. Province of the Punjab and others", controversy had arisen that earlier suit was withdrawn by the present petitioners simplicitor or with permission to file a fresh suit vide order dated 27.11.1991, passed by learned Civil Judge. Both the parties produced before the learned trial Court divergent orders in this regard and the learned Senior Civil Judge, seized of latter suit, while observing tampering and forgery in judicial record for preparing fictitious order sheet, referred the matter to the learned District and Sessions Judge, Vehari, with the request for holding regular inquiry in the matter.

3. In pursuance of orders of the competent authority/District Judge, Mr. Tariq Masaud Bhatti, learned Addl. Sessions Judge/Inquiry Officer, after inquiry submitted his report dated 29.05.2008 (available at page 819 of this file).

4. The present petitioners challenged the aforesaid inquiry report by filing W.P.No.4104 of 2007, which was allowed by this Court vide order dated 14.05.2013 and the matter was remanded to the competent authority (learned District Judge, Vehari) for recording statements of two witnesses by the Inquiry Officer and then passing of appropriate orders.

5. In pursuance of aforesaid order, learned Sessions Judge, Vehari recorded statements of the witnesses mentioned in remand order, and passed impugned order dated 26.09.2013 while concluding as under:- "

6. This court is of considered view that Muhammad Siddique (petitioner) and Muhammad Saleem, Stenographer, petitioner's real brother by abusing his position being Stenographer of the Sessions Courts made this forgery to defeat the ends of justice. So direction is issued that criminal case be registered at the instance of Abdul Ghaffar, one of legal heirs of Bashir Ahmad, since expired under intimation to this court." As such, in the second round of litigation, the petitioners by filing this writ petition have assailed legality and propriety of above order and subsequent orders passed thereunder.

6. Learned counsel for the parties have been heard at length and record perused.

7. The main thrust of learned counsel for the petitioners is that the learned Sessions Judge was not competent to order for registration of criminal case and at the most, the matter could be referred to the Anti-Corruption Establishment for the proceedings in accordance with law. In support of this contention, reliance has been placed on case Mehboob Ali v. The State and 3 others (PLD 1996 Lahore 454) and Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others (1992 MLD 311 Lahore).

8. It is established from record that after passing of impugned orders, the Anti-Corruption Establishment approached the learned Sessions Judge in view of settled law that before lodging of FIR, Anti-Corruption Establishment should hold an inquiry, for guidance, but the learned Sessions Judge sticked to his earlier order for lodging of FIR. In view of above case law, to my view, in the given facts and circumstances of the case, the matter was to be remitted by competent authority to the Anti-Corruption Establishment for legal action by the said Establishment.

9. In case Basit Nadeem v. Additional Sessions Judge and others (2016 PCr.LJ 1216), following dictum has been laid down:- "

10. When a public servant is alleged to have committed a scheduled offence jointly with other private persons then a criminal case against them could be registered only under the orders of the officers mentioned in Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 " As such, in view of above case law, impugned orders to the extent of directing the Anti-Corruption Establishment to register criminal case without following the procedure laid down in the Anti-Corruption Establishment, Rules 2014 is without jurisdiction, lawful authority and as such not sustainable.

10. Learned counsel for the petitioners has also tried to convince the Court that even on the basis of positive inquiry report, the Court was not competent to refer the matter to the Anti-Corruption Establishment and at the most, complaint in terms of section 195(1)(c), Cr.P.C. was to be lodged.

11. Suffice it to observe that section 195, Cr.P.C. deals with taking cognizance of offences enumerated in the said provision of law only on a complaint in writing of the public servant/Court, but does not debar lodging of the FIR and investigation of case. Needless to mention that taking cognizance of an offence by a Court of law (on a complaint of the Court) and lodging of FIR are two distinct legal terminologies/remedies under Criminal Law and in any case section 195, Cr.P.C. does not bar lodging of FIR in respect of commission of cognizable offence, whereas, learned counsel for the petitioners has made unsuccessful attempt to intermingle the same, prima facie, only to perpetuate the act of forgery in judicial record duly noticed by learned trial Court and so concluded by learned Sessions Judge after thorough probe. The similar proposition was examined and settled in various cases including 'Muhammad Nazir v. Fazal Karim and others' (PLD 2012 Supreme Court 892), 'Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others' (2006 SCMR 483) and 'Muhammad Bashir Alia Bakola and 8 others v. Superintendent of Police, City Division, Lahore and 9 others' (2007 PCr.LJ 864 Lahore). Here it will be appropriate to reproduce the principle laid down in Muhammad Nazir's case referred supra:- "We may observe with respect that the learned Judge-in-Chamber of the Lahore High Court, Lahore seems to have confused the expression "cognizance" appearing in section 195, Cr.P.C. with the expressions "cognizable" and "non-cognizable" finding mention in sections 154 to 157, Cr.P.C. and had also failed to appreciate that taking of cognizance of an offence by a court is a thing quite distinct from investigation of a reported offence by the police or any other investigation agency. The learned Judge-in-Chamber ought to have appreciated that the provisions of section 195(1)(c), Cr.P.C. deal only with taking of cognizance of an offence by a court and the same do not place any embargo upon reporting such an alleged forgery to the police, registration of an FIR in that regard or conducting of an investigation in respect of such an allegation. There may be situations where a court before whom an allegation has been levelled regarding production or giving in evidence of a forged or tampered document may in the first instance like to get the matter of alleged forgery inquired into or investigated by a trained investigating agency or it may require the party levelling the allegation to report the matter to the investigating agency for an inquiry or investigation before making up its mind whether to lodge any complaint in writing under section 195(1)(c), Cr.P.C. before the trial court or not. In the case of Industrial Development Bank of Pakistan and others v. Mian Asim Fareed and others (2006 SCMR 483) it had expressly been held by this Court as follows: "Needless to add that the registration of an FIR and taking of cognizance of cases were two distinct and independent concepts under the criminal law; that if the intention of the law-maker was to put any clog on the registration of an FIR then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it can never be read to imply prohibition on registration of FIRs." Prima facie, keeping in view the gravity of offence, the competent authority was justified to refer the matter to the Anti-Corruption Establishment and no exception can be taken to the impugned order. In this regard, reliance is placed on case Secretary to the Government of the Punjab, Forest Department, Punjab, Lahore through Divisional Forest Officer v. Ghulam Nabi and 3 others (PLD 2001 Supreme Court 415) wherein it was laid down that the Superior Courts have ample jurisdiction to refuse a relief where granting it would tantamount to injustice.

12. For what has been discussed above, instant writ petition is partly allowed, impugned orders dated 26.09.2013 and 08.10.2013, passed by the learned Sessions Judge, Vehari only to the extent of directing the Anti-Corruption Establishment to register the FIR, without formal and independent inquiry at their own end being violative of law, rules and without jurisdiction are set-aside. The Anti-Corruption Establishment will proceed in the matter as per Anti-Corruption Establishment Rules, 2014 (presently in field), after affording right of audience to the petitioners and all concerned and if commission of any scheduled offence is made out against any public servant and his other accomplice/s, the Anti-Corruption Establishment will proceed strictly in accordance with law/rules.

13. The above observations are restricted to the decision of instant writ petition and will have no adverse impact/effect on the inquiry proceedings by the Anti-Corruption Establishment or subsequent trial, if any, as a result of inquiry proceedings. MWA/M-166/L Order accordingly.