P L D 1988 Karachi 502 (PLP)

This is application for bail proved by the applicant, who alongwith one Javed Akhtar, is facing trial before the Sessions Court (East), Karachi, for the offences punishable under sections 416, 420, 465, 467, 468, 447, 448, 471, 109 and 34, P.P.C.

2. It is alleged by the prosecution, that the present applicant, alongwith co‑accused Javed Akhtar, forged certain documents viz. power of attorney, sale agreement, identity card, receipts of the sale price etc. purporting to bear signature of Mr. Umer Qureshi. owner of plot No.43‑H. Block 6, PECHS, Karachi, in respect of the said plot in favour of the applicant. It is further alleged, that the applicant illegally broke open up the lock of the said plot and encroached thereupon. Mr. Umer Qureshi resides ,in U.K. and as he is British citizen his affairs in Pakistan are looked after by his attorney. Nasim Hussain, who filed such written complaint with S.H.O Ferozabad Police Station,, Karachi, who incorporated the same in 154, Cr. P.C. book on 8‑5‑1988 at 5.00 a.m. After usual investigation. the challan has been submitted in Court on 16‑6‑1988.

3. The case of the applicant, as submitted by Mr. Abbas Zia. learned counsel for the' applicant is, that the applicant contacted complainant Nasim Hussain for the purchase of the said plot, but the negotiations could not be finalized. It is further submitted, that on 14‑5‑1987 irrevocable power of attorney was executed by the said Umer Qureshi in favour of Javed Akhtar, who entered into sale agreement on the same date with the applicant. The power of attorney was registered by Mr. Umer Qureshi on 19‑1‑1988. He also obtained sale price of ks.26,00,000 from the applicant and executed two receipts each in the sum of Rs.13,00,000 on 14‑5‑1987. It is admitted, that the sale‑deed has not yet been executed or registered and hence before the registration of the F.I.R., the present applicant had filed civil suit bearing No.337/1988 in this Court for specific. performance of aforesaid sale agreement or refund of Rs.50,00,

000. It is submitted by Mr. Abbas Zia, that all the alleged offences for which the applicant is being prosecuted, excepting offence under section 467, P.P.C., are punishable with less than 10 years imprisonment and as such do not fall within the mischief of the embargo contained in section 479(1), Cr.P.C. It is further submitted, that prima facie no offence is made out under section 467, P.P.C., as none of the documents alleged to have been forged could be considered as valuable security. It may be relevant to reproduce section 467, P.P.C., which reads as under:‑ S.467. Forgery of valuable security will, etc. ‑‑Whoever forges a document which purports to be a valuable security or a :will, or an authority‑ to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property or valuable security or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquitance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

4. On the bare reading of this section it would be seen, that forging document purporting to 'be receipts acknowledging payment of money would be an offence punishable under section 467, P.P.C. In the instant case as pointed above two receipt have been 'produced which purport to bear signature of Umer Qureshi acknowledging the receipt of Rs.13,00,000 under each receipt. Therefore, for the purpose of this bail application, I will only confine to the consideration, whether prima facie there are reasonable grounds to believe, that the applicant has or has not committed forgery of the abovementioned receipts.

5. The two receipts purport to show, that Mr. Umer Qureshi received Rs.13,00,000 under each receipt from the present applicant. Photo stat receipts were produced by the applicant in support of his claim under the aforesaid suit. The normal presumption under such circumstances would be, that if the documents are forged, the applicant is prima facie party to the such forgery.

6. The impugned order of the learned Additional Sessions Judge, whereby he rejected the bail application of the, applicant, shows, that the learned Additional Sessions Judge had compared the admitted signatures of Umer Qureshi on the passport and other .documents with the signature on the alleged forged documents and came to the conclusion, that the documents in question did not appear to bear signature of Umer Qureshi. However, the main evidence relied upon by the prosecution is the passport of Mr. Umer Qureshi which indicates) that Mr. Umer Qureshi never visited Pakistan in 1987 or in 1988, which are relevant years when the alleged transaction took place and the documents are alleged to have been signed. Mr. Abbas Zia, has contended, that Mr. Umer Qureshi possesses several passports and possibly by he might have used a passport for visiting Pakistan during the relevant time, which passport has not been produced in the Court. He has made reference to power of attorney admittedly executed by Mr. Umer Qureshi in favour of complainant. It is dated 15‑4‑1988 which shows, that his passport No. is 9933655.

7. It is submitted by Mr. Anwar Tarique, learned counsel for the complainant, that this is British citizenship number of Mr. Umer Qureshi, and it has been inadvertently mentioned as the passport number. He has pointed, that this number has been written by Mr. Umer Qureshi on the first passport, which is Pakistani passport at page number three. This first passport is Pakistani passport bearing number 33452, :which was issued on 10‑1‑1955 and was renewed upto 9‑1‑1960. Thereafter, it does not appear to have been renewed and there is endorsement of 'cancelled' on each page of it. The second passport is British passport bearing No.9220631 issued on 16‑8‑1961, and remained valid upto 16‑8‑1971. In this passport Mr. Umer Qureshi is shown as British subject, citizen of United Kingdom and the' Colonies. The third passport produced bears number 6127878 issued on 23‑1‑1974 in place of passport number 251117A dated 1‑9‑1973, which was declared to be lost. This passport remained valid upto 23‑1‑1984 after which it was not renewed and bears endorsement 'cancelled'. The fourth passport bears number 324598E issued on 26‑3‑1984 and is valid upto 26‑3‑1994. In this passport, Mr. Umer, Qureshi is shown as British citizen. This passport does not show, that Mr. Qureshi visited Pakistan during the year 1987 or 1988.

8. The prosecution has also produced two affidavits, one by Mr. Umer Qureshi and other by co‑accused Javed Akhtar. Mr. Qureshi's affidavit is countersigned by Consul, Embassy of Pakistan in London, and it is dated 25‑5‑1988. In this affidavit Mr. Qureshi states, that only passport which he possesses is passport No.324598E and that he has not visited Pakistan during the years 1987 and 1988.

9. When asked as to why two receipts were issued when the payment of Rs.26,00,000 was made on the same date, Mr. Abbas Zia submitted, that Javed Akhtar was also equal partner in the purchase of land and Rs.13,00,000 were paid by him and other Rs.13,00,000 wire paid by the applicant, and therefore, two separate receipts were issued. It may be pointed, that in both receipts Mr. Umer Qureshi purports .to have received that amount from the present applicant. This Javed Akhtar is. presently on interim bail before arrest and it is stated at the bar, that the question of confirmation of his bail is still under consideration of the learned trial Court. In his affidavit in support of bail application, this Javed Akhtar has alleged that the applicant induced him to invest money and also defrauded him of Rs.13,50,

000. He further states, that he was made to sign some power of attorney and other documents and that he was introduced to one person as hr. Qureshi when he signed power of attorney. He has further stated in this affidavit, that on enquiry, he has now come to know that Umer Qureshi is a different person from the person, whom applicant introduced to him as the owner of the plot and that he has further come to know, that Umer Qureshi who is owner of the plot was residing in U.K.

10. It is also submitted by Mr. Abbas Zia, that cognizance of the offences by the trial Court was barred under section 195(1)(c) Cr.P.C., because the alleged forged documents have been produced in the High Court in the aforesaid civil suit and it is the High Court alone which can institute proceedings of prosecution if it comes to the conclusion, that the documents are forged. Section 195(1)(c) reads as under:‑ "S.

195. Prosecution for contempt of lawful authority of public servants: ‑ prosecution or certain offences against public justice: Prosecution for certain offences relating to documents given in evidence‑‑ (1) no Court shall take cognizance:‑ (a) . (b) . (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 in 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."

11. Reliance is placed on the case of State v. Ali Hussain and another (P L D 1974 Kar.403). In that case the allegations in the complaint were, that the accused forged documents in question and utilised the same in the judicial proceedings in the civil Court for obtaining decree in favour of accused. It was held by the learned Single Judge of this Court, that documents even though forged before the institution of suit, the bar contained in section 195(1)(c) would operate in equal force, if documents were subsequently used in judicial proceedings. Copy of plaint has been produced which shows, that photo copies of the receipts were enclosed as Annexures 'C' and 'D'. The documents which are alleged to have been forged have neither so far been produced before the Court nor used in evidence. It may be pointed that clause (c) of section 195(1), Cr.P.C. must be strictly construed because it encroaches upon jurisdiction of the ordinary criminal Court which has been empowered to punish offences. Section 195 is engrafted by way of an exception to the ordinary powers of the criminal Court. It will not be proper to construe that section in such a manner as to restrict the jurisdiction of the criminal Court unless such a restriction is expressly provided for or necessarily follows from the language used by the Legislature.

12. Reference be made to the case of Sun Mukh Singh and another v. The King (AIR (37) 1950 Privy Council (34), Their Lordships observed as under:‑ "Section 195(1)(c) only refers to a document alleged to be forged and not to a copy of it. The reason is that the Court before which a copy of document is produced is not really in a position to express any opinion upon the geniuses of the original. Though by production of a copy secondary evidence of the contents of a document might be said to be given, the forged document itself cannot be said to be given in evidence. Where the document in respect of which a charge of forgery had been laid against the accused had not itself been produced or given in evidence in certain proceedings but on the contrary a copy of it had been produced the absence of complaint under section 195(1)(c) cannot operate as a bar to the trial of the accused."

13. The Court cannot order prosecution for forgery on the basis of the photo copy of receipts unless original documents are produced before the Court. In other words, until the cognizance of this case by the Court the alleged original forged documents have neither been produced nor given in evidence in the civil suit. In my opinion, therefore, the bar contained in section 195 (1)(c) which would not be applicable to the instant case. Reliance is also placed on the case of Abdul Wajid v. Nawabdin (1973 S C M R 373), wherein quashment of criminal proceedings against accused under sections 406 and 418, P.P.C. were questioned in appeal and it was held by their Lordships, that the dispute between the parties was of civil nature and criminal prosecution lodged by the petitioner after six years, was intended to bring pressure to bear upon respondent for settling civil dispute, which had arisen between them. The order of quashment of proceedings passed by the High Court was maintained. Reliance is also placed on the case of Muhammad Azam v. Muhammad Iqbal (P L D 1984 S C 95) at page 151, wherein Their Lordships observed as under:‑ "Whenever same question is being adjudicated upon between the same parties in criminal and civil forums, the criminal proceedings are not normally postponed, but this assumption, as the entire discussion reveals, would ordinarily apply, if the proceedings are other than bona fide and are pending or commenced in a civil forum, when the same subject‑matter requires determination in criminal proceedings. This finds support from the following further observations and rule laid down in that case. 'But where it is clear, that the criminal liability is dependent upon the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustice being done in the case if there be a conflict of decision between the civil Court and criminal Court then in such event it is equally clear that the Criminal Court has not only the right to but should also stay its hands until the civil litigation is disposed of, for, it is not desirable that when the title to the property itself is in dispute, the Criminal Courts should give a finding in respect of the same question . In exercising this .discretion the guiding principle should be to see it to whether the accused is likely to be prejudiced if the criminal proceeding is not stayed'.

14. In the criminal case the main question to be determined is, whether the documents have been forged and the criminal Court is the only competent Court to punish such offence. In the civil suit, the main question for the decision is, whether there was any agreement of sale between the parties and the question, whether the documents produced in support of the alleged transactions are forged or not is not main question for decision but incidental to the main question for determination. Thus, the criminal liability is not dependent on the result of the civil litigation. The facts and the circumstances of the instant case are distinguishable. Furthermore, the question under consideration is not stay of proceedings, but the grant of bail. If proceedings before the criminal Court are stayed at this stage it could not pass any order including the order of bail.

15. Reliance is also placed on the case of Manzoor v. The State 'PLO 1972 SC 81, wherein Their Lordships observed as under:‑ "The bail is not withheld as punishment. There is no legal or moral compulsion, to keep people in jail, merely on the allegation, that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity."

16. It is settled principle of law, that the precedents "in the criminal cases, are not of universal application, but are applicable to the facts and circumstances of that particular case. In the instant case) as pointed above, prima facie from the evidence on record it appears that there are reasonable grounds to believe, that Umer Qureshi had not visited Pakistan when he allegedly executed two receipts in Pakistan acknowledging receipts on aforesaid amount. Thus, there appear to be no reasonable grounds to believe at this stage, that the applicant had not committed the alleged offences. Under the circumstances, the bail application is rejected at this stage. M.Y.H./A‑369/K Bail refused.