2009 PLP 1481 (YLR)

The appellant, namely, Mukhtar Ahmad Qureshi son of Karim Bakhsh, by .filing this Intra-Court Appeal has called in question the order, dated 21-7-200g passet1 in Writ Petition No.3140 of 2008 by the learned Single Judge in Chambers, whereby the constitutional petition was filed by him seeking quashing of F.I.R. No. 249, dated 11-3-2008, registered with Police Station Islamapura, Lahore for offences under sections 420, 468, 471, P.P.C. had been dismissed.

2. Precisely the facts giving rise to this appeal are that on 11-3-2008, Pervaiz Amin (respondent No.3 herein) got the aforesaid case registered against the petitioner on the allegation that the petitioner had executed a forged agreement to sell in an attempt to alienate his property, blackmailed him and had also extorted money. It was further alleged that the said document had been executed by him in favour of the petitioner. After having sought ad-interim pre-arrest bail from the lower Court, the petitioner had approached this Court by filing Writ Petition No.3140 of 2008 seeking quashing of the said F.I.R. on the ground that civil litigation between the parties, regarding the alleged fake agreement to sell is pending in the Civil Court, therefore, no criminal case could be registered, but the grounds urged did not find favour with the learned Single Judge in Chambers, who proceeded to dismiss the writ petition vide order, dated 22-7-2008. Hence, the instant appeal.

3. Learned counsel for the appellant has argued that the impugned F.I.R. is illegal, void and coram non judice in view of the words "except on complaint in writing by such Court" appearing in section 195(1)(c), Cr.P.C., therefore, no Court is competent to take cognizance thereof keeping in view the principle/ exception provided by way of provisions of section 195, Cr.P.C.; that though the offence under section 420, P.P.C. is not covered by section 195(1)(c), Cr.P.C, but even then the impugned F.I.R. to the extent of sections 468 and 471, P.P.C. merit to be quashed inasmuch as in the said special anomaly the offence under section 420, P.P.C. is subsidiary to be an offence under sections 468 and 471, P.P.C.; that from bare perusal of the contents of F.I.R., no offence under sections 468, 471, P.P.C. is made out. Lastly he argued that the learned Judge in chamber has completely ignored the grounds of writ petition and the law presented in support thereof while pronouncing the order impugned therein.

4. We have heard the learned counsel for the appellant and have also gone through the record available on the file as also the impugned order.

5. Perusal of the impugned order' reveals that the learned Single Judge in Chambers after viewing each and every aspect of the matter and giving an opportunity of hearing to both the sides had proceeded to observe that incomplete challan had been submitted before the trial Court, however, investigation was going on, wherein signatures of the complainant available on the alleged agreement to sell were to be sent to the handwriting expert for his opinion in regard to its genuineness. It was further observed that specific allegation has levelled against the petitioner in the F.I.R and submission of challan against him by itself, prima-facie, made out a case against him. It has rightly been observed by the learned Single Judge in Chambers that as factual controversy is involved regarding the genuineness of the alleged agreement to sell, therefore, the same cannot be resolved in constitutional jurisdiction of this Court.

6. Insofar as contention of the learned counsel for the appellant that registration of F.I.R. is violative of the provision of section 195(1)(c), Cr.P.C. is concerned, it also does not carry any weight keeping in view the law laid down by a Full Bench of this Court in the case of Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178), where it was held as under:-- "(5) The reasoning supporting the view contended for by the petitioner's counsel may best be stated in the words of Beaumont, Chief Justice in Emperor v. Rachaapa Yellappa (AIR 1936 Born. 221). He said: "Now reading that section apart from authority, I think the relevant date which has to be considered is the date at which a Court is invited to take cognizance of the complaint. At that moment the Court has to ask itself whether it is debarred from taking cognizance by reason of the provisions of section 195, and in cases falling under section 463 or 471, Penal Code, the Court has to see whether the offence in respect of which it is asked to take cognizance is alleged to have been committed by a party to any proceedings in any Court and in respect of a document produced or given in evidence in such proceedings. Now in this case the offence had been committed by a person who, at the date of the complaint, was a party to a proceeding in a Court and the document had been produced or given in evidence in such proceedings and therefore, the words of the section would seem to apply." It has been observed by the Full Bench of this Court in Muhammad Shafi's case (supra) in the following way:

"Now can it be said that the offence of 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 person 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. 'Unfortunately civil suits usually take very long time 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 proceedings 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." 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 under the provision of section 195, Cr.P.C. there are exceptions to the said general principle, where only public authority concerned and the Court concerned has a right to file a complaint, but clause (c) of subsection (1) of section 195, Cr.P.C. applies only to those offences that have "a close nexus between the offences and the proceedings". It contemplates cases of tampering with the documents on the record of a Court or cases of provisionally forged documents being used as genuine in certain proceedings. The conditions necessary for the application of section 195(1)(c), Cr.P.C. are offences mentioned should be committed by the party to the proceedings in Court and such offences should be in respect of the documents produced or given in evidence in such proceedings. Reliance is placed on Abdul Wahab Khan v. Muhammad Nawaz and 7 others (2000 SCMR 1904).

7. In the present case, document in dispute in agreement to sell, which was executed on 12-7-2005; the civil suit was filed on 23-2-2008, in which interim injunction was obtained on 25-2-2008 and impugned F.I.R. was lodged on 11-3-2008, which indicates that the document in question was executed much before the filing of the suit and the same was prepared outside the Court, hence, it will not come under the purview of section 195(1)(c), Cr.P.C.

8. Even otherwise, the appellant has specifically been nominated in the F.I.R. and stand saddled with definite allegations. If the F.I.R. is taken at its face value, the same prima facie discloses commission of cognizable offences. In order to appreciate the contentions of the leaned counsel for the appellant, a factual inquiry needs to be undertaken, which, we are afraid, cannot be embarked upon by this Court in the present summary proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Reference can advantageously be made to the case of Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCMR 276), wherein it was held that High Court has no jurisdiction to resolve disputed questions of fact in constitutional jurisdiction. It was further observed by their lordships that if prima facie an offence had been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court; that High Court had no jurisdiction to quash F.I.R. by appreciation of documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Likewise, in the case of Rafique Bibi v. Muhammad Sharif and others (2006 SCMR 512), the Hon'ble apex Court held that disputed questions of fact could not be gone into in proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

9. Insofar as contention of the learned counsel for the appellant that when the civil proceedings are pending, criminal proceedings cannot be initiated is concerned, it has not much force. It is settled principle of law that criminal proceedings are not barred in presence of civil proceedings and civil and criminal proceedings could proceed simultaneously. Reliance can profitably be made to the case of Haji Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192).

10. Challan in this case has already been submitted in this case, therefore, any interference by this Court at this stage in its constitutional jurisdiction would amount to pre-empting the functions of the trial Court, which is neither appropriate nor desirable. Even other-wise, the appellant has more than one alternate remedy, which he may, if so advised, avail at an appropriate stage. In these circumstances, no infirmity or illegality has been found in the impugned order calling for interference in this appeal.

11. Resultantly, there being no merit in this appeal, the same is dismissed in limine. H.B.T./M-220/L Appeal dismissed.