2005 PLP 1883 (MLD)

SHAH JEHAN KHAN YOUSAFZAI, J

Criminal Miscellaneous for Quashment Nos.87 and 132 of 2005 are arising from the same F.I.R. are disposed of jointly.

2. Respondents in both the Quashment Petitions were apprehended in case F.I.R. No.2 of 2005 for committing an offence punishable under sections 419/420/468/471, P.P.C. read with section 5(2) P.C. Act registered at Police Station ACE Peshawar. They were produced before Magistrate for obtaining police custody under section 167, Cr.P.C. but the request for police custody was not only turned down. The respondents were discharged under section 63, Cr.P.C. vide order dated 1-2-2005 and 27-4-2005. State and complainant feeling aggrieved from the discharge of accused-respondents in Cr.M. No.87 of 2005 preferred two separate Revision Petitions Nos.7/Cr.R. and 6/Cr.R which were heard by A.S.-J. Peshawar but dismissed jointly through order dated 19-3-2005. Still feeling aggrieved State has moved this Court through the aforesaid Quashment Petitions against the discharge of accused-respondents by the Magistrate. The Quashment Petition by complainant was not entertained due to the instant petition wherein right of audience was allowed to complainant.

3. Facts in brief are that Faqir Gul and Niamatuallh brothers inter se submitted a complaint addressed to the Director, Anti-Corruption Peshawar for taking punitive action under the law against Hidayatullah, brother of the complainants, Shakeel Ahmed Petition Writer, concerned Record Keeper and concerned Incharge Record Room, complaining therein that House bearing No.770/2961 situated in Majyan is the legacy of their father and all his legal heirs are co-sharers in the said house. The respondents prepared a collusive, fictitious, ineffective and fraudulent deed in the preceding date on a stamp paper allegedly signed by the stamp vendor who had already died and prepared a relinquishment deed on behalf of complainants. The entries in the stamp paper including the signatures of the complainants were termed bogus and the complainants were fraudulently deprived of their due share in the aforesaid house as legacy of their father through the said forged relinquishment deed.. The stamp paper, the contents of deed and the signature of complainants were contended to be forged. On 15-5-2004, the complaint was marked to ADC Peshawar for enquiry. An enquiry File bearing No.35/REV was opened and enquiry commenced. During enquiry, the Enquiry Officer took into his possession through recovery memo. the conveyance register for the period 22-12-1997 to 6-8-1999 wherein two pages 256 and 257 were found missing and the disputed relinquishment deed dated 12-10-1998 was found recorded at page 128-R of the said register. The Enquiry Officer also took into his possession the stamp vendor register of Sardar Muhammad Khan (dead) pertaining to 19-9-1998 to 29-10-1998 produced by concerned Moharrir, Record Room through recovery memo. dated 12-6-2004. The Enquiry Officer obtained the handwriting of the two applicants as specimen signature through Court for obtaining opinion of the Handwring Expert.

4. Hidayatullah brother of the complainants and beneficiary of the disputed relinquishment deed filed a civil suit against Director, Anti-Corruption, the Enquiry Officer and Anti-Corruption Establishment without arraying the complainants as defendants for a declaration to the effect that enquiry or proceedings initiated by Anti-Corruption Establishment in respect of disputed relinquishment deed No. 128 dated 12-10-1998 is illegal, wrong based on mala fide and beyond the jurisdiction of ACE, also paved for perpetual injunction for any proceedings or inquiry against the said documents. The learned Senior Civil Judge who was seized of the matter passed an order to maintain status quo till next date vide order sheet dated 30-6-2004. The order to maintain status quo was extended from time to time till 1-10-2004. On the said date, application of the defendants for rejection of plaint under Order VII, rule 11, C.P.C. was heard and rejected but status quo order already passed was nether further extended nor confirmed. The complainants on whose complaint, enquiry was initiated by the ACE submitted another application for sending the specimen signature for handwriting Expert opinion ADLA of the Anti-Corruption Establishment submitted a report that in view of the facts stated therein, the Circle Officer may be directed to send the register obtained by the Enquiry Officer to the Handwriting Expert which was approved by Director, ACE.

5. Stamp vendor and petition writer registers bearing signature of the applicants and the specimen English and Urdu signatures of the two applicants along with NIC of Faqir Gul, complainant, international passport of Niamatullah complainant, a lease deed executed by Faqir Gul, MCB receipt and stamp paper of Niamatullah containing their routine signatures were sent to FSL Peshawar for opinion of the Hand-writing Experts. Two Hand-writing Experts in the FSL Peshawar examined the documents noted above and submitted their opinion as follows:-- "The detail, minute and scientific examination of the documents revealed as follows:--

1. The question Urdu signatures "Niamatullah" and English signatures of "Faqir Gul" on the register of stamp vendor do not tally in individual characteristics with their respective specimen supplied and have been forged.

2. The present writings at page 99 of the petition writer against serial No.12318 has been reconstructed by making of addition alteration in the original writings flagged and marked as (B). " On receipt of the FSL report, the ADC Anti-Corruption Establishment directed the Circle Officer to take required legal action.

6. On 15-1-2005, Circle Officer ACE Peshawar submitted the final report in the following words:--

7. The ADC found the aforesaid report worth reliance and the material on record were found sufficient for registration of the case, thus forwarded for necessary action. After obtaining the requisite permission F.I.R. No.2 was registered on 29-1-2005 against the accused-respondents for committing an offence punishable under sections 419/420/468/471 P.P.C. read with section 5(2) of the PC Act in the ACE Peshawar. On 31-1-2005 Obaidullah respondent was formally arrested being Incharge Mohafiz Khana District Peshawar. The same day Hidayatullah respondent being beneficiary of the documents in question was also taken into custody. On the following day i.e. 1-2-2005 both the accused were produced for police custody which was not only refused but the said accused were discharged under section 63 of the Cr.P.C. which is now impugned in Cr.M.No.87 of 2005 herein. The respondents in the connected Cr.M. No. 132 of 2005 produced for police custody and the Magistrate vide order dated 27-4-2005 also refused their custody and discharged them of the liability which is now impugned through Cr. M. No. 132 of 2005 herein.

8. I have heard Mr. Shah Nawaz Khan, Advocate, counsel for the State (petitioner), Messrs Abdul Samad Khan and Aamir Hussain, Advocates, counsel for the respondents in both the Cr.Ms. and Mr. Ishtiaq Ibrahim, Advocate, counsel for the complainants who were allowed right of-audience in their predisposed Quashment Petitions, also perused the record.

9. The moot question of determination in these connected petitions is as to whether the Judicial Magistrate was legally competent to discharge the accused under section 63, Cr.P.C. when they were produced for police custody in a case exclusively triable by Anti-Corruption Judge on the ground of non-compliance of section 195 (1)(c), Cr.P.C. Before discussing the facts and law points involved in the case certain dates are of significant importance i.e. (1) the agreement deed/relinquishment deed subject-matter of dispute is dated 12-10-1998 (2) civil suit brought by the aggrieved complainant is dated 16-12-2003 without challenging for want of knowledge the relinquishment deed (3) the aggrieved complainants approached the Anti-Corruption Establishment through complaint dated 15-5-2004 (4) the respondents beneficiary under the impugned agreement submitted written statement on 27-5-2004 wherein the relinquishment deed was relied upon as defence plea (5) the respondents beneficiary filed suit for declaration against the enquiry initiated by Anti-Corruption Establishment on 30-6-2004 (6) application for rejection of plaint under Order VII, rule 11, C.P.C. submitted by the Anti-Corruption Establishment, defendant in the suit was rejected on 1-10-2004 (7) suit of the beneficiary respondents for partition of the properties including the house of subject-matter of suit filed by complainants mentioned in the impugned relinquishment deed filed subsequently is also pending but the date of institution is not available on the record before me.

10. Certain provisions of the Cr.P.C. are also advantageous to be noted for ready reference.

Section 61, Cr.P.C. Persons arrested not to be detained more than twenty-four hours.

No police officer shall detain in the custody a person arrested without warrant for a longer period that under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Section 167, Cr.P.C. Procedure when investigation cannot be completed in twenty-four hours.

(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation if he is not below the rank of the sub-inspector, shall forthwith transmit to nearest Magistrate (nearest Judicial Magistrate was omitted through Act XXIII of 1997) a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the cases, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall authorize detention in the custody of the police. Paras. 3 to 7 are not material for disposal of the matter in hand. Section 63, Cr.P.C. Discharge of person apprehended.

No person who has been arrested by a police officer shall be discharged except on his own bond or on bail or under the special order of a Magistrate. Section 169, Cr.P.C. Release of accused when evidence deficient.

If upon an investigation under this Chapter, it appears to the officer in charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial. Section 173, Cr.P.C. Report of police-officer.

(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police station shall, through the public prosecutor. (a) forward to a Magistrate empowered to take cognizance of the office on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has barn released on his bond, and, if so, whether with or without sureties, and. (b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. Sub-para. (2) to (5) of section 173, Cr.P.C. are not relevant.

11. Sections 61 and 63 are part of Chapter V relating to arrest escaped and re-taking while sections 167 and 173 are part of Chapter XIV relating to information to the police and their powers to investigate.

12. The respondents in Cr. M. 87 of 2005 were arrested in the case on 30-1-1995 and since the investigation was not likely to be completed within 24 hours period provided under section 61, Cr.P.C. they were produced before the Magistrate with a request for three days police custody on the grounds mentioned in the written request for custody. The learned Magistrate after perusal of record found that suit filed by aggrieved complainant against the respondents herein was still pending in the civil Court, and since the document in question was produced by the defendants (respondents herein) and has also relied upon the same in para-6 of the written statement, it was held that in terms of section 195, Cr.P.C. no case could be registered against the accused-respondents unless there' is complaint by the said civil Court. In these circumstances not only the requisite custody was refused but the accused-respondents were discharged under section 63, Cr.P.C.

13. Section 195(1), Cr.P.C. reads as follows:-- "No Court shall take cognizance

(a) of any offence punishable under sections 172 to 188 of the P.P.C. 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 proceedings 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 proceedings in any Court in respect of a document produced or given in evidence in such proceedings, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. "

14. The impugned discharge of the accused-respondents were made after applying the provision contained in clause (c) in para-I of section 195, Cr.P.C. Pertinent to mention here that the accused-respondent are facing the charge not only under section 471 but also under sections 468/419/420, P.P.C. read with section 5(2) of the P.C. Act which sections of law are not mentioned in the aforesaid provisions. The limitation imposed by section 195, Cr.P.C. is with regard to forgery through document in Court proceedings, defined in section 463, P.P.C. Punishable under section 471 P.P.C., while the accused-respondents were not only booked for committing forgery outside the Court as back as 12-10-1998 but also for cheating defined through section 415, P.P.C. punishable under sections 419/420/468, P.P.C. and for committing criminal misconduct so far as public servant/respondents are concerned.. The aforesaid provision of law shall come into play only if forgery is committed by any of the party to the proceedings in a Court regarding a document produced or given in evidence. It was stated at the bar by one of the learned counsel namely Mr. Aamir Hussain, Advocate that the document in question was produced in evidence as Exh.P.W. 2/2 but the perusal of record reveals that evidence has not yet been started and the document was allegedly prepared as back as 12-10-1998 much earlier than the institution of the suit. At the time of enquiry by ACE and even registration of the case no written statement was submitted by respondents' beneficiary, thus the stage of production in Court proceedings evidence of defence had not yet come. In these circumstances, the embargo contained in section 195 (1)(c), Cr.P.C. was not a hurdle in registration of case on the complaint of an aggrieved person from the forged document. Every information regarding cognizable offences is to be reduced into writing under section 154 of the Cr.P.C. is a general rule but sections 195 to 198, Cr.P.C. are the exceptions to that as observed in 2004 YLR

716. The non-compliance of section 195, Cr.P.0 is for the Court where challan is submitted under section 173, Cr.P.C. and the effect of non-compliance of section 195, Cr.P.C. can only be taken into account by the Court having jurisdiction to take cognizance, when challan is submitted under section 173, Cr.P.C. and it cannot be examined during enquiry or investigation. It was held in Muhammad Shafi and others v. S.H.O. and others (1999 PCr.LJ 1345) that criminal investigation should not be stifled or killed during its infancy as the same will be against the principles governing administration of justice.

15. The learned counsel for accused-respondents has relied upon Dr. Ishtiaq Hussain and another v. Special Judge Anti-Corruption (2004 YLR 716). In the cited judgment delivered in a quashment proceedings it was held that sanction for prosecution under section 197, Cr.P.C. or section 6(5) of Pakistan Criminal Law Amendment Act, 1958 or under rule 12 of Punjab Anti-Corruption Establishment Rules, 1985 from competent authority for taking cognizance against a public servant is not a mandatory pre-requisite but the same shall be required in a case under sections 468/471, P.P.C. being a schedule offence. It was also observed that the Anti-Corruption Laws are special law providing its own mechanism for the registration of case and investigation shall have preference over general law. In view of the facts and circumstances of the case it was held that proceeding before the trial Court is exercised in futile. The cited judgment is of no use for the accused-respondents being delivered in an under-trial case. The learned counsel also relied upon Muhammad Sharif and others v. The State (1997 SCMR 304). In the cited judgment on completion of investigation report was submitted under section 173, Cr.P.0 for discharge of accused which was accepted. Feeling aggrieved State preferred a quashment petition under section 561-A, Cr.P.C. in the Lahore High Court which was accepted on the ground that the Magistrate has concurred with the report of Investigating Officer mechanically. The matter went to the august Supreme Court wherein it was held that no revision lies against the discharge order passed by the Magistrate on report submitted under section 173, Cr.P.C. not being passed by a criminal Court in a judicial proceedings. Through the cited judgment the impugned order passed by ASJ under sections 435/439, Cr.P.C. is immune from interference by this Court as the learned A.S.-J. has rightly followed the judgment ibid and dismissed the revisions filed by State and complainants. Here the legality of order passed by Magistrate discharging the accused-respondents at a very initial stage of investigation is subjudice for determination. In the cited judgment also there was submitted final report under section 173, Cr.P.C. while in the case in hand, the respondents were discharged during investigation and without any request for discharge by the Investigating Officer through a final report under section 173, Cr.P.C. The case of Bahadur and another v. The State (PLD 1985 SC 62), again the matter was thoroughly investigated and a final report was submitted under section 173, Cr.P.C. It was observed that the Magistrates are entrusted to discharge duties as a Court, as an administrative, executive or ministerial powers and his judicial functions as Court was only held to be amenable to revisional jurisdiction of the Sessions Court or High Court. The cited judgment was rightly followed by A.S.-J. in his impugned order dated 19-3-2005 but it not useful for the respondents being distinguishable on facts i.e. the cited judgment was delivered after final report under section 173, Cr.P.C. by the Court having competent jurisdiction to take cognizance of the matter while in the present case the said stage has not yet come.

16. Learned counsel for the respondents have also placed reliance on Rasool Khan and others v. Haji Banaras Khan and others (PLD 2004 SC 364). Facts of the cited judgment are that there was a civil suit already pending regarding certain disputed mutations and at the same time proceedings were initiated by the Anti-Corruption Authorities. It was held that disputed mutations impugned in a civil suit was enquired by Anti-Corruption Authorities and the accused were sent for trial where they were acquitted under section 249-A of the Cr.P.C. which order was upheld in appeal and leave to appeal was refused. The cited judgment is distinguishable on the ground that in the present case the document in question was manipulated in 1998 and the civil suit on the basis of said deed was not yet filed when the alleged forgery was intimated by the aggrieved complainant to ACE. At the time of starting enquiry against the forgery, no civil suit on the basis of that document was pending and even written statement was not riled by respondents/defendants in the suit. Pertinent to mention here that the embargo contained in section 195(1)(c) of the Cr.P.C. will not be attracted if document is forged before the initiation of proceedings in the civil Court, but, embargo shall be pressed into service only if forgery is committed in the Court proceedings regarding a document. In the present case, the suit filed by complainant party not based on the document in question will not attract the embargo contained in section 195 (1)(c), Cr.P.C. There are actions for which one can be prosecuted in addition to the enforcement of civil rights in a civil Court. Aabid v. State (1995 PCr.LJ 22) can be cited as precedent case-law on the point. The judgment reported in 1997 MLD 2097 is also distinguishable on facts because in the cited judgment the suit against agreement to sell was already filed and the registration of F.I.R. on the basis of alleged fraud regarding the same agreement to sell later in time was found illegal. There is landmark judgment relied upon by the counsel for accused-respondents Ashiq Hussain v: Sessions Judge (PLD 2001 Lahore 271) wherein various sections of discharge of the accused were examined and it was held that the Magistrate can only discharge the accused of the bond already taken by police under section 169, Cr.P.C. or already on bail or through special order and such powers are exercised by the Magistrate under section 173(3), Cr.P.C. but still the accused shall not be exonerated of the charge and could be prosecuted subsequently on the discovery of material evidence. In case reported in 1989 PCr.LJ 2241 relied upon by counsel for the respondents, it was held that the order passed by Magistrate regarding discharge of accused is an administrative order and not amenable to the revision under sections 435/439, Cr.P.C. In case reported as 2002 PCr.LJ 1570 request for investigating office for the discharge of accused was declined without giving reasons for that, the some was found not correct and the matter was remanded for decision afresh after adverting to the facts of the case as well as the police report. Learned counsel for the respondents could not lay hand on any precedent case-law wherein accused were discharged during investigating and without any such request from the Investigating Agency.

17. Sections 63 and 169, Cr.P.C. empower the Magistrate to discharge an accused before trial. Section 63, Cr.P.C. has laid an embargo on the discharge of accused under arrest. Such an accused could be discharged only on obtaining sureties bail bound or personal bond of the accused on a special order of Magistrate. The special order is made during investigation on the request/case diary of investigation only. The Magistrate cannot sit to decide a criminal case during investigation. If Magistrates are given the powers to discharge and release an accused person at the very initial stage, there will be no room for success in blind heinous criminal case which always investigated at different theories of probabilities based on spy information. Once an accused is apprehended and found innocent he can only be set free during investigation by obtaining discharge order from Court, Discharge of an accused is also governed by section 169, Cr.P.C. which is at the conclusion of investigation and on submission of report under section 173, Cr.P.C.

18. Section 195, Cr.P.C. lays down embargo on taking cognizance by a Court in the given circumstances. The stage of taking cognizance comes on the conclusion of investigation. The Magistrate controls and supervises the investigation and during that period he cannot pass order as Court that is why any order passed by Magistrate pertaining to investigation is not amendable to revisional jurisdiction of Sessions Court or this Court. The Magistrate in his executive or administrative capacity cannot press into service the provision contained in section 195 Cr.P.C., in this regard the case Mst. Parveen Akhtar etc. v. The State (1991 PCr.LJ Note 274 at p. 193) can be referred to.

19. Section 167, Cr.P.C. deals with custody of an accused during, investigation. If the investigation in a case could not be completed within twenty-four hours fixed under section 61 Cr.P.C. the accused under arrest is to be forwarded to a Magistrate along with diaries of proceedings in investigation. The Magistrate can competently grant police custody irrespective of the fact as to whether he possessed or not the jurisdiction in the matter. The Magistrate on examination of the investigation diaries may authorize the detention which shall not acceed 15 days in all. If the Magistrate is not satisfied with the diaries submitted by Investigating Officer along with request for police custody, and he has got no jurisdiction in the matter, he may refuse further detention and direct to produce the accused before a Magistrate having jurisdiction in the matter. In the present case, undisputedly the Magistrate who has passed the impugned order had no jurisdiction in the matter being a scheduled offence triable exclusively by a Judge Special Court under the Anti-Corruption Laws. The Magistrate was either to grant the requisite police custody or in alternative he was required to direct the Investigating Officer for production of accused before the Court of competent jurisdiction. Vide impugned order, the Magistrate has not properly applied his judicial mind while passing the impugned discharge order of accused-respondents. The Magistrate, who has passed the impugned order, has altogether ignored the material collected by Investigating Officer before registration of the case and arrest of the accused-respondents. Even if despite the materials collected during enquiry were found not sufficient for grant of further police custody, he should have refused the custody with the direction to get the same from the Court of competent jurisdiction. Vide impugned order, the Magistrate has not noticed that the case was registered after due process in accordance with law and before production of disputed relinquishment deed in the civil Court and has misinterpreted the law by saying that no case could be registered on the basis of fraudulent document produced in the civil Court except on the direction of the said Court. The Magistrate has also ignored the fact that accused-respondents are not only charged for committing forgery in preparation of relinquishment deed but also for cheating punishable under sections 419,420 and 468 P.P.C. and 5(2) D P.C. Act which sections of law are not covered by sub-clause (c) of para-1 of section 195 Cr.P.C.

20. In wake of the above discussion, I accept both these Quashment Petitions to secure the ends of justice. The orders passed by Magistrate dated 1-2-2005 and 27-4-2005 are set aside. The discussion on facts of the case made in the preceding paras are tentative in nature and shall have no bearing on the Court which is seized of the matter: The Investigating Officer is directed to proceed with the matter in accordance with law. H.B.T./494/P Petitions accepted.