This writ petition has been filed seeking quashment of F.I.R. No,111, dated 16-2-2005, under sections 420, 468 & 471, P.P.0 at P.S., Jaranwala, District Faisalabad.
2. The background to the present writ petition is that respondent No,1 filed a private complaint against the petitioner and 7 others under sections 337-A(i)(ii), 337-F(i), 452, 148 and 149, P.P.C. The learned Magistrate Jaranwala was pleased to summon the accused persons to face the trial. The petitioner No,1 appeared before the Court of learned Magistrate and deposited surety bond on 19- 5-2004. The petitioner No,2 being surety submitted bond on 19-5-2004. Subsequently, another person Muhammad Ramzan submitted fresh bond on behalf of petitioner No, 1 which was also duly accepted by the learned Judicial Magistrate.
3. Respondent No,1 moved an application before the learned Magistrate and alleged that petitioner No,2 on 19-5-2004 had submitted a forged lamabanndi' pertaining to 13 Kanals 5 Marlas situated in Chak No,566/GB with the surety bond. The learned Magistrate sent for a. Report from Tehsildar who reported on 10-11-2004 that surety Muhammad Akbar, petitioner No,2 had no agricultural land in Chak No,566/GB. The application of the respondent No,1 was accepted, the learned Magistrate sent a `robkar' to the S.H.O. And directed him to register a case against the petitioners. Accordingly, F.I.R.
No,111 dated 16-2-2005 was registered under sections 420, 468, 471, P.P.C.
4. The petitioners filed a revision petition before the learned Additional Sessions Judge, Jaranwala, the revision was dismissed by the learned Additional Sessions Judge vide his order dated 15-2- 2005. Hence this writ petition has been filed by the petitioners on grounds that the registration of the F.I.R is inconsistent with the provisions of section 195, Cr.P.0 to be read with section 476, Cr.P.C, therefore, illegal . He further submits that facts narrated in the F.I.R do not constitute offence under sections 420, 468, 471, P.P.C. He also submits that inadvertently name of wrong village has been mentioned in the bond regarding ownership of the petitioner No,2. The petitioner actually owns agricultural land and he had no intention to play fraud or mislead the Court or sully the judicial process. He also adds that petitioner were not afforded opportunity to defend themselves before the learned Judicial Magistrate who passed the impugned order.
5. The learned counsel for respondent No,1 submits that provisions of section 195, Cr.P.C., are applicable in complaint case only but section 195 does not prohibit registration of an F.I.R. He also submits that order of the learned Additional Sessions Judge attained finality as the same was not challenged before any forum.
6. The learned amicus curiae submits that expression "no Court" conveys that section 195 prohibits a Court not to take cognizance except on a complaint by the Court in which proceedings are pending. Section 195 does not prohibit police to register a case if the matter is reported as it happened in the present case. However, he submits that section 195 envisaged only a complaint and not an F.I.R. He further-submits that there is difference between a complaint and F.I.R. Both are not interchangeable in view of provisions of section 4, Cr.P.C.
7. The learned Additional Advocate-General Punjab contends that this writ petition is not maintainable.
8. From the facts and arguments of the learned counsel narrated hereinabove, it is absolutely clear that a `fard' showing ownership of Agricultural land was attached with the surety bond by the petitioner No,2 and used for the purpose of bail granted by the learned Judicial Magistrate in a complaint case pending before him. In other words, the above document was allegedly forged and used during the pendency of the complaint or bail proceedings. It was neither forged nor used, earlier than the present proceedings pending before the learned Judicial Magistrate. The requirement of section 195(c) is that no Court shall take cognizance of any offence described in section 463 or punishable under sections 471, 475 or 476 of the same Code, when such offence is alleged to have been committed by party to any proceeding 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. In the above words, "when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced in such proceeding," are important. The alleged bail bond supported by a `fard' was prepared for the bail purpose only. Therefore, any criminal proceedings could be initiated only on a complaint in writing of Court of the learned Judicial Magistrate where the complaint proceedings in which petitioner No,2 was granted bail are pending.
9. It may be noted that heading of section 195 reads "prosecution for contempt of lawful authority of public servants". Therefore, offences mentioned in subsection (1)(c) if are committed in circumstances mentioned in section 195 are treated contempt of lawful authority of public servants (Court where proceedings are pending) and not against private persons though they might be affected. This is the reason that law makers have empowered only to the concerned Court to initiate criminal proceedings against accused persons who commit offences and in circumstances mentioned in section 195, Cr.P.C. In normal circumstances if an accused person commits offences mentioned in subsection (1)(c), private persons as a right can initiate proceedings against accused person by filing a complaint or by giving an information to police to register an F.I.R. But since in the above circumstances the offences are committed in particular circumstances the concerned private persons have been deprived of their right to initiate criminal proceedings against the accused persons.. Therefore, only the concerned public authorities i,e, Courts mentioned in clauses (b) & (c) have right to file a complaint and unless there is a complaint by such a public authority or Court as the case may be no criminal Court shall .Take cognizance of. E these offences. Provisions of section 195, Cr.P.C., are mandatory in nature, PLD 2001 Peshawar 89.
Section 195, Cr.P.0 is to be read with section 476, Cr.P.C. Which provides, when any offence referred to in section 195(1)(b) or (c) has been committed in or in relation to a proceedings 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, Cr.P.C. The above provisions have been provided because law-makers treated offences mentioned under section 195, Cr.P.C.,. Against Administration of Justice and not only against individual private person, hence triable summarily. But for the same reasons, the provisions of sections 195 and 476, Cr.P.0 have to be construed and applied strictly.
10. Though the learned Magistrate was competent, in view of the facts and circumstances discussed above, to initiate criminal proceedings against the petitioners but he could not have done the same by directing S.H.O. To register an F.I.R. An F.I.R. And a complaint are not interchangeable as it is obvious by reading provisions of section 4, Cr.P.C. For further guidance reference may be made to Muhammad Sharif v. State, 1991 M LD 1172 and Mian Muhammad Siddiq v. Raja Muhammad Akram, PLD 1987 AJK 146. I may record my appreciation for a judgment authored by Fazal Karim, J. Reported as Muhammad Shaft v. D.S.P. PLD 1992 Lah. 178 (Full Bench). All parties have referred to the above judgment. However, that judgment is not applicable to the facts of the present case. Though I agree with finding of his Lordship Fazal Karim, J. But do not find the above judgment applicable to the facts and circumstances of this case. The question referred to the Court in the above case was, "whether the provisions of section 195(1)(i) clause (c) of Cr.P.0 as regards offences described in section 463 or offences punishable under section 475 or 476 of Cr.P.0 apply to a document which is produced or given in evidence in a suit or any other proceedings in Court but which had been forged before the institution of the suit or proceeding? As observed in the preceding paras in the present case `fard' was not forged before the institution of complaint pending before the learned Judicial Magistrate, it was forged and used during the proceedings of pending complaint.
11. The upshot of the above discussion is that the F.I.R. No,111 dated 16-2-2005 under 'sections 420, 468, 471, P.P.C. Of P.S. Jaranwala is quashed and declared without lawful authority and of no legal effect. However, before, I part with this judgment, I may observe that the learned Judicial Magistrate may still proceed further in this matter in the tight of provisions of section 195, Cr,P.C.