' MUHAMMAD NAWAZ BHATTI, J.---Brief facts leading to this writ petition are that the petitioner appeared in English Paper-B of B.A. 2nd Annual Examination, 2003 on 20-12-2003 and handed over the answer-book to the Invigilating Staff on 24-1-2004, he was issued charge-sheet, alleging that as he had not handed over the answer-book to the Invigilating Staff, he had been found guilty of smuggling out the same from the Examination Hall in violation of Regulation No,14 of the Regulation regarding conduct of Examination. The petitioner replied to the charge. Vide letter, dated 23-2- 2004 issued by Respondent No,1, he Was asked to appear before the Disciplinary Committee on 6- 3-2004 at 10 a.m. When he appeared before the Disciplinary Committee vide another letter, dated 9-3-2004, he was also directed to re-appear before the Disciplinary Committee on 25-3-2004 along with original F.A. Certificate. He appeared before Respondent No,1 on the said date. Vide letter, dated 25-3-2004 issued by Respondent No,1 Deputy Controller of Examination and Secretary Disciplinary Committee, the petitioner was communicated decision of unfair means case, according to which he was disqualified for three years/6 chances from passing 2nd Annual and from appearing in any University Examination till 1-A/06. Against the said decision, the petitioner preferred an appeal before Respondent No,2 Vice-Chancellor Baha ud Din Zakariya University Multan who filed the same vide order; dated 9-6-2004. Against the orders, dated 25-3-2004 and 9- 3-2004, the petitioner has tiled this writ petition.
2. Learned counsel for the petitioner has contended that there was no direct evidence against the petitioner of smuggling out the answer-book from the examination hall; that there was no fun for smuggling the answer book because in English Paper-A the petitioner had obtained 33 marks and was passed; that the petitioner cannot be made to suffer on account of any negligence of the Invigilating Staff and in this behalf reliance is placed on Controller of Examinations, University of Punjab and others v. Javed Iqbal Bajwa (1996 SCMR 1726) and that the impugned orders are based on mala fides.
3. On the other hand, learned counsel for the respondent-University has supported the impugned orders the comments and submitted that the charge against the petitioner had been duly proved during the course of inquiry conducted by the Disciplinary Committee whose findings were affirmed by the appellate authority/Respondent No,2.
4. Arguments heard. Record perused.
5. It is an admitted fact that the petitioner appeared on 20-12-2003 in English Paper-B of B.A. 2nd Annual Examination 2003. It is also an admitted fact that he received the answer-book after making signature on the identification sheet, as is evident from the identification sheet Annexure R- II. Perusal of the statements of Prof. Khalid Javed Assistant Professor, Govt. Walayat Hussain College Multan and Noorullah, Deputy Superintendent/Lecturer Govt. Degree College Chichawatni shows that Bilal Ahmad Khan Invigilator of the Examination Centre was responsible for losing the answer- book as he did not come on duty as Invigilator in the next paper. There is no eye-witness of the alleged incident of smuggling answer-book. Even there was no reason for the petitioner not to hand over the answer-book of the above paper to the Invigilating Staff as he had obtained first class marks in other subjects. There is no indication on record that the findings of Respondent No,1 were approved by the Vice-Chancellor Baha ud Din Zakariya University Multan/Respondent No,2.
6. In view of the above circumstances, I find illegality in the impugned orders and, therefore, this petition is allowed and the impugned orders are set aside.
Petition allowed.
2006 MLD 284 [Karachi] Before Sabihuddin Ahmed, C.J. And Mrs. Qaiser lqbal, J Haji ABDUL RAZZAK through Attorney-Petitioner versus FEDERATION OF PAKISTAN through Secretary Ministry of Finance and Economic Affairs, Islamabad and 2 others---Respondents C.P.No,1640 of 2001, decided on 4th May, 2006. Criminal Procedure Code (V of 1898)--- ----S.195(1)(c)---Penal Code (XLV of 1860), Ss.403, 406, 420, 471, 475 & 476---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Prosecution for certain offences relating to documents given in evidence---Requirements to be satisfied before invoking provisions of S.195(1)(c), Cr.P.C. Were that offence was alleged to have been committed by a party to any proceeding in the Court that the offence was committed in respect of a document produced and that said offence fell under either S.463, 471, 475 or 476, P.P.C.---Copies of disputed letters were placed on record, whereas clause (c) of S.195(1), Cr.P.C. Had contemplated production or giving in evidence the original document and not a copy thereof manipulated to defraud through cheating and fraud with intent to cause financial loss to the Bank---Petitioner had been charged for commission of offences under Ss.406 and 420, P.P.C. Whereas provisions of S.463, P.P.C.
Were not attracted to the complaint---Order of the special Court (in respect of Banks) had explicitly revealed that complaint was registered under Ss.403 &420, P.P.C.---Bar contained in S.195(1)(c), Cr.P.C., in circumstances; did not operate---Normally evidence and judgment in civil case between the same parties, could another be made applicable nor used as evidence in a criminal case---Issues involved in civil and criminal cases, were adjudicated upon the evidence led by the parties on different notions. [pp. 287, 288] A & B The State v. S. Ali Hussain and others PLD 1974 Kar.403; Zahid Hussain v. State 1990 PCr.LJ Kar.1209; Malik Khuda Bux v. The State 1995 SCMR 1621; Mst. Naseer Begum v. SaM and 6 others 1972 SCMR 584 and Kumar Gopika Raman Roy v. Atal Singh and others AIR 1929 Privy Council 99 rel. Abdul Hafiz Lakho for Petitioner.
Mehmood Alam Rizvi DAG for Respondent No, 1.
Khalid Anwar and Rizwan Ahmed Siddiqui for Respondent No,3.
' Mrs. QAISER IQBAL, J.---The petitioner has assailed the proceedings, in private Complaint No, 63 of 1998 pending before the Respondent No,2, for quashment.
' Briefly the facts recapitulated in private complaint, lodged under sections 463, 403 and 420, P.P.C.
Against the petitioner and co-accused Hussain Lawai, the then President of Respondent No,3. Are that Respondent No,3 had filed Suit bearing No,1674 of 1997 in the High Court of Sindh at Karachi for recovery of money under Banking jurisdiction. The petitioner had filed an application for leave to defend. Along with the affidavit letters, dated 8-8-1994 and 15-9-1994 were filedpurported to have been written by co-accused. It is alleged that the petitioner along with co-accused created these letters, intentionally, fraudulently and dishonestly cheated Respondent No,3 and caused substantial loss to the reputation of the Bank thereby committed scheduled offences punishable under sections 406 and 420, P.P.C.
' Mr. Abdul Hafeez Lakho, learned counsel for the petitioner, has contended that the complaint filed by the Respondent No,3 was not tenable in law on account of the bar contained in section 195(1)(c) of the Cr.P.C. Whereby the Court can take cognizance of offences punishable under sections 471, 475 and 476 of P.P.C. Except on the basis of complaint in writing of such Court where a party to a proceedings had committed any of the offences described in section 463 during the course of proceedings. It is further contended that on account of the pendency of civil litigation between the petitioner and the Respondent No,3, criminal proceedings against the petitioner be sine die adjourned till the final adjudication of civil litigation. Reliance in this context is placed on The State v. S. Ali Hussain and others (PLD 1974 Karachi 403).
' Mr. Khalid Anwar, learned counsel for Respondent No,3, has contended that section 195(1)(c), Cr.P.C. Only applies if a forgery is committed and shall not apply if copies of the alleged forged documents are produced by a party in civil proceedings. It is further contended that the judgment and finding of civil Court is not admissible in criminal proceeding to establish the truth of the facts upon which it is rendered. In a criminal trial, Court has to determine the .Question of guilt of the accused on the basis of criteria whether the charge against the accused is proved beyond all reasonable doubt whereas the basis of the disposal of the civil suit is altogether on different footings, Trial Court itself is competent to look into the genuineness of the documents. In support of the above contention reliance is placed on the following case law:--
(1) Zahid Hussain v. State (1990 PCr.LJ Karachi 1209), it is observed that admittedly only copies of disputed documents placed on record cannot operate as bar, as the same refers to a document in original produced in evidence.
(2) Malik Khuda Bux v. The State (1995 SCMR 1621) The dictum laid" down is that the judgment of the civil Court is not admissible in criminal proceeding to establish the truth of the facts upon which it was rendered.
(3) Mst. Naseer Begum v. Sain and 6 others (1972 SCMR 584). It has been observed that, "We are unable to agree, because, as pointed out by the Privy Council in the case of Kumar Gopika Roman Roy v. Atal Singh (AIR 1929 PC 99) "the Evidence Act does not make a finding of fact arrived at on the evidence beforethe Court in one case evidence of that fact in another case." Thus, a judgment in a civil Court, as pointed out by M. Munir in his Law of Evidence, "is not admissible in a criminal proceeding to establish the truth of the facts upon which it is rendered. In a criminal trial it is for the Court to determine the question of the guilt of the accused and it must do so upon the evidence before it." In the case of S.N. Gupta and Co. v. Sadanada Ghosh PLD 1960 Dacca 153, it was held by Dacca High Court that a judgment of acquittal in a criminal case only decides that the accused has not been proved guilty and to this extent only and no more is it to be taken as correct and conclusive in a subsequent civil suit between the parties."
(4) Kumar Gopika Raman Roy v. Atal Singh and others (AIR 1929 Privy Council 99), it is observed that the Indian Evidence Act, does not make finding of fact arrived at on the evidence before the Court in one case, evidence of that fact in another case.
' It is urged by the learned counsel appearing for the Respondent No,3 that the petition filed on behalf of the attorney of the petitioner is misconceived and liable to be dismissed on this score only.
' We have considered the arguments advanced at bar and are unable to subscribe to the plea raised by the learned counsel for the petitioner on the premises that the jurisdiction of the Respondent No,2 was barred for taking cognizance in private complaint. The object of the provision of law is to prevent prosecution by private process. Following requirements are required to be satisfied before invoking provisions of section 195(1)(c), Cr.P.C:--
(1) Offence is alleged to have been committed by a party to any proceeding in any Court.
(2) That the offence is committed in respect of a document produced.
(3) That the said offence falls under sections 463 or 471, 475, 476, P.P.C.
' Admittedly copies of the disputed letters are placed on record, whereas clause (c) contemplates production or giving in evidence the original document and not a copy thereof manipulated to defraud the Respondent No,3, through cheating and fraud with intent to cause financial loss to the bank. The petitioner has been charged for commission of offences under sections 406 and 420 of Pakistan Penal Code whereas provision of section 463, P.P.C. Are not attracted to thecomplaint, order of the Respondent No,2, dated 10-7-1998 explicitly reveals that the complaint was registered under sections 403 and 420, P.P.C. In these circumstances bar contained in section 195(1)(c), Cr.P.C.
Does not operate.
' Adverting to the contention raised by the learned counsel for the petitioner that the judgment in criminal case, would affect the merits of the civil suit or vice versa are not sustainable in law as normally the evidence and judgment in civil case amongst the same parties cannot be made applicable nor used as evidence in a criminal case. Indeed issues involved in civil and criminal cases are adjudicated upon, the evidence led by the parties on different notions.
' There have been serious apprehension on behalf of the learned counsel for the petitioner about the manner of conduct of proceedings by the Respondent No,2 for declaring the petitioner as fugitive from law and the evidence recorded in absentia. Indeed the procedure followed was not consistent with the procedure provided for the safe administration of the criminal justice, it will be just and fair that the petitioner be afforded an opportunity to submit to the due process of justice for de novo trial and his liberty be protected by extending concession of bail to meet the ends of justice.
' In view of foregoing we are clearly of the view that the petition is not sustainable in law, stands disposed of.
' These are the reasons for short order, dated 4-5-2006.