' AZIZ ULLAH M. MEMON, J.---Heard the learned counsel appearing for the parties.
2. It appears from the contents of the memo. Of this Criminal Revision Application that the applicants feel aggrieved and dissatisfied with the orders passed by learned III-Additional Sessions Judge Malir Karachi, dated 21st February, 2006, dated 20th February, 2006 and further order, dated 8th March, 2006, respectively, whereby their prayers have not been entertained to take legal action against the respondents No,2 and 3 for allegedly having committed the forgery during the proceedings of the case falling under the provisions of Illegal Dispossession Act, 2005.
3. The relevant document is an affidavit, dated 28th December, 2005, which was meant to be swron by one Mst. Shama wife of Sher Ali whereon the signature of Sher Ali is said to have been made, as contended by learned counsel for the respondents and not of Mst. Shama herself; from such aspect. Of the case the applicants herein have gathered an impression that the purpose of filing of such an affidavit was to get undue benefit by misguiding the Court of learned III-Additional Sessions Judge. Learned counsel for the respondents has contended that due to a bona fide mistake Sher Ali put his signature on the said affidavit, otherwise page No,2 of the said affidavit is clearly indicative of the fact that Mst. Shama appeared herself before the competent officer of the Court to verify the contents of the said affidavit, who recorded his satisfaction that it was actually meant to be sworn by Mst. Shama; had the commissioner for taking affidavits not been satisfied with such aspect of the case, he would not have certified the same to have been sworn by Mst.
Shama.
4. There is no indication on the record that the commissioner for taking affidavits acted in connivance with either Mst. Shama or herhusband Sher Ali for the purpose of certifying false affirmation of the contents of the said affidavit.
5. The citations relied upon by learned counsel for the Applicants viz. AIR 1923 Nagpur 258, 1991, PCr.LJ 1879 (Lahore), 1994 SCMR 1103, 1984 PCr.LJ 1340 (Peshawar) and 1997 PCr.LJ 59 are bearing the facts and circumstances which are distinguishable from those of the case in hand.
6. In Naila Junaid v. Additional District Judge and 2 others (2005 MLD 834 (Lahore) following observations were recorded:- ' It is better and appropriate to reproduce section 476(1), Cr.P.C. To resolve the controversy between the parties.
"476. Procedure in cases mentioned in section 195.---(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 trials in Chapter XXII.
' The legislature in its wisdom used the word 'may' which indicates that it is the discretion of the Court to proceed against the person who has made wrong claim before the Court in the contents of the plaint. It is pertinent to mention here that both the Courts below refused to exercise discretion in favor of the petitioner keeping in view the circumstances of the present case. It is admitted fact that both the Courts below have concurrently refused to exercise discretion in favor of the petitioner. Therefore, constitutional petition is not maintainable as the law laid down by the Honourable Supreme Court in the following judgments:- ' Khuda Bakhsh v. Muhammad Sharif (1974 SCMR 279).
' Muhammad Sharif v. Muhammad Afzal Sohail and others (PLD 1981 SC 246).
' Abdul Rehman Bajwa v. Sultan and others (PLD 1981 SC 522).
' It is settled principle of law that this Court has no jurisdiction to substitute its own finding in place of the finding of the Tribunal below while exercising power under Article 199 of the Constitution as the law laid down by the Division Bench of this Court in Mussadaq's case (PLD 1973 Lah. 600). Mere reading of aforesaid section reveals that it is discretion of the Court to take cognizance of the offence or not. Coupled with the fact thatprovision of law is directory in nature and not mandatory in nature. In arriving to this conclusion I am fortified by the law laid down by the superior Courts in the following judgments:-- ' Arif Manzoor Qureshi's case (2003 YLR 249).
' Nazar Ahmed Chaudhry's case (PLD 1987 Lah. 214).
' Hira Lal Sarda's case (AIR 1932 Patna 243).
' It is settled proposition of law that the Court has to be extra cautious that the prosecution is undertaken in the interest of justice and not to satisfy the private grudge of a litigant as the law laid down by this Court in the following judgments:-- ' Arif Manzoor Qureshi's case (2003 YLR 249).
' Mian Fazal Ellahi's case (PLD 1970 Lahore 383).
' It is also settled principle of law that in case any claim is made by mistake then proceedings under section 476 cannot be initiated against the respondent under section 209, P.P.C. In terms of the law laid down in Moti Lal's case (AIR 1936 Allahabad 164). It is also settled principle of law that it is undesirable that the people should be hampered in their access to the Courts and in getting justice by the, fear that if they are unsuccessful they may be prosecuted for defamation as the law laid down by the superior Courts in the following judgments:-- ' Abdul Rehman's case (PLD 1951 Baghdad-ul-Jadid 85).
' Arif Manzoor Qureshi's case (2003 YLR 249).
' Lalanand Lal's case (AIR 1937 Lahore 867).
' Ramnandan Prasad Narayan Singh's case (Criminal Law Journal Reporter 1921 page 467) equivalent 61 Indian Cases 955.
' It is also settled principle of law that strict proof is required to initiate proceedings against the respondent under provisions of section 476 read with section 209, P.P.C. As the law laid down by the superior Courts in the following judgments:-- 'Hira Lal Sarda's case (AIR 1932 Patna 243).
' Mst. Zohra's case (1992 MLD 1827).
' It is also settled principle of law that it is essential for the Court to consider whether there is a reasonable probability/certainly for the conviction of the respondent. In case this element is not borne out from the record then proceedings cannot be initiated as the law laid down by the superior Courts in the following judgments:- ' Gangoo Mal's case (AIR 1925 Sindh 263).
'Ghanshamdas Gianchand's case (AIR 1934 Sindh 114).
' Kalumal Gelomal's case (AIR 1935 Sindh 81).
' It is also settled principle of law that in case the statement is withdrawn by a witness then proceedings under section 476, P.P.C. Cannot be initiated as the law laid down in the following judgments:-- ' M. Liaqat Hussain's case (AIR 1946 Allahabad 156).
' Jairam Singh's case (AIR 1932 Lahore 307).
' It is also settled principle of law that constitutional jurisdiction is discretionary in character.
Keeping in view the circumstances of this case coupled with the facts that civil suit is still pending adjudication, therefore, I am not inclined to exercise discretion in favor of the petitioner as the law laid down by the Honourable Supreme Court in Nawab Syed Ranoq Ali's case (PLD 1973 SC 236).
' In view of what has been discussed above, this petition has no merit and the same is dismissed."
7. Under the circumstances, the allegation that the respondents Nos.2 and 3 committed any forgery during the judicial proceedings of a case before learned III-Additional Sessions Judge is not apparent on the face of the record and on the other hand it was discretionary with the learned Additional Sessions Judge to proceed against the said respondents either under section 195, Cr.P.C.
Or under section 476, Cr.P.C.
8. Relying on the above quoted case of learned Lahore High Court, this Criminal Revision Application is dismissed in limine.