1991 P Cr (PLP)

The facts giving rise to the present revision application are that the"'; applicant Karim Bux is alleged to have forged a land revenue receipt No.84 dated 19-6-19811 issued in the name of Samo Khan son of Sodho Khan showing him to be the owner of land bearing survey number 140 of Deli Kakepota, Taluka Garhi Yasin, District Shikarpur which was used by the said Samo Khan fraudulently as a genuine document to stand surety for accused Ghulam Mustafa in Criminal Miscellaneous Application No. 9 of 1987 in the Court of First Additional Sessions Judge, Shikarpur with the result that the said Samo Khan was accepted as surety. However, when a report was called from Mukhtiarkar, Garhi Yasin it was found that the said surety Samo Khan did not own the said land at the time he had stood surety for accused Ghulam Mustafa. Consequently, the trial Court issued the show-cause notice to accused Karim Bux who submitted his reply which was not found to be satisfactory. The lower Court taking cognizance of the offence under section 468, P.P.C. tried applicant summarily and convicted him under the said section and sentenced him to suffer imprisonment till rising of the Court and pay a fine of Rs.50 or in default of payment of fine to suffer a further simple imprisonment for 7 days. Applicant Karim Bux is a Tapedar and had issued alleged forged receipt in his capacity as such. He is, therefore, a public servant. Mr. Kasmi, the learned counsel for applicant has argued that the applicant being a public servant alleged to have committed the offence of forgery which is described in section 463 and its punishment is provided in section 468, P.P.C., this case comes under the exclusive jurisdiction of Special Judge and the trial Court had no jurisdiction to take cognizance or to try the applicant. He has referred to the provisions of section 195(1)(c). Cr.P.C. and has further submitted that it would have been necessary for the trial Court to have made a complaint to the Court of Special Judge. As against this the learned Assistant Advocate- General has referred to the provisions of section 476, Cr.P.C. and has submitted that when a forged document is used by an accused person in relation to the proceedings with the case, trial Court is competent to take cognizance of the offence and try the same under Chapter XXII of the Criminal Procedure Code which provides for summary trial. In order to appreciate the legal position fully it would be pertinent to reproduce the two sections which read as under:-- "195(1) N6 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. 476.-- (1) When any offence referred to in section 195, subsection (1) clause (b) or clause (c), has been committed in or in relation to, a proceeding in any Civil, Revenue or Criminal Court, the Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trial in Chapter XXII." In the abovesaid section 195(1)(c) it is provided that in case of offence which is prescribed in section 463, P.P.C. no Court shall take cognizance except on the complaint in writing of such Court. From this it was argued on behalf of the applicant that this provision itself is a bar to taking cognizance by the same Court. It was further submitted on behalf of the applicant that the offence of forgery is defined in section 4(3 but its punishment is provided in section 468 and, therefore, this offence is exclusively triable by Special Judge as provided in section 5 of the Pakistan Criminal Law Amendment Act, 1958 which reads as under:-- "

5. Offences to be tried by Special Judges. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, the offences specified in the Schedule shall be triable exclusively by a Special Judge." Clause (b) of the Schedule under the above said section 5 reads as under:-- "(b) Offences punishable under sections 403 to 409, 417 to 420, 465 to 468 and 477-A of the Pakistan Penal Code, and attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by any public servant as such or by the person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such." From the plain reading of the above provisions it is obvious that where any offence of forgery is committed by a public servant not being party to proceedings in respect of the proceedings before a Court, the said Court is required to make a complaint in writing as provided under section 1950), Cr.P.C. and the competent Court in such case would be a Court of Special Judge who has exclusive jurisdiction which will take such cognizance. Repelling the above contention the learned Assistant Advocate-General placed reliance on the provisions of section 476, Cr.P.C. and has submitted that the provisions of 'section 476, Cr.P.C. were substituted by the Law Reforms Ordinance, 1972 (Ordinance XII of 1972) whereby the same Court was empowered to take cognizance and try the case and also to punish the author of such forgery. Messrs Ghulam Kadir Malik and Muhammad Daud Baloch, Advocates acting as amicus curiae have pointed out one important difference between the provisions of sections 195 and 476, Cr.P.C. Of course as it appears from the plain reading of section 476, Cr.P.C. the trial Court has been empowered to take cognizance and try the offences referred to (in) section 195(l)(b) or (c) if committed in relation to a proceeding in the said Court as summary trial under Chapter XXII of the Criminal Procedure Code and also to award the punishment therefor. However, the point for distinction, as in the present case, is that in the present case the offence is not committed by any party to the proceedings but by a third person.who is neither a complainant nor the witness nor an accused in the case. The words `when such offence is alleged to have been committed by a party to any proceeding' as used in clause (c) of section 195(1), Cr.P.C. are pertinent and carry weight. A simple analysis of this provision would show that it is only in the case where such offence is committed by any party to the proceeding that the trial Court is competent to take cognizance but in all other cases the trial Court has to act under the provisions of section 195(1)(c), Cr.P.C. In the present case the allegation against the present applicant is that he had forged the document which was used for the purposes of the surety but the applicant himself is not a party to proceeding, not even surety himself. In view of above discussion present application is allowed. The judgment and conviction awarded by the lower Court is set aside and the case is remanded to the lower Court to proceed in accordance with law. I would record the note of appreciation of the amicus curiae who have very ably assisted the Court. N.H.Q./K-248/K Petition accepted.