A. R. SHEIKH, J.-While disposing of Writ Petition No. 379-R of 1967 filed by Mian Fazal Elahi (hereinafter called the respondent) against the Settlement Department and others in respect of premises 26-Empress Road, Lahore, the Court found that the claim of the petitioner that he entered the property in question in July 1958 was completely dishonest and untruthful and that he had no locus stand! Whatsoever to ask for the transfer of the property on that basis. It was further observed that it was said that counsel had been misled by the respondent to present a false claim in this Court. We accordingly directed that a notice to show cause why he should not be prosecuted under section 193 of the Pakistan Penal Code be issued to the respondent with reference to his own documents which showed that he obtained possession, if at all in 1962. In response to this notice, the respondent has appeared before this Court and has filed his written statement, in which a preliminary objection was raised saying that since a petition for special leave to appeal against the order dated -the 19th of March 1968, from which the present proceedings have arisen, had been instituted in the Supreme Court, it will be in the interest of justice, that the present proceed--ings be stayed pending the decision of the said petition. We accordingly adjourned the case on the 22nd of October 1968 and now we are informed that the said petition has since been dismissed as withdrawn. On merits, the respondent has reiterated the plea that he came into possession of the premises in dispute in 1958 and in support of this assertion he has referred to certain documents on the record of the writ petition. It has also been pleaded that the essential elements (including mens rea) of offences (under sections 181, 193 and 209, P. P. C.) mentioned in the notice are not made out, inasmuch as the operation of section 476, Cr. P. C. Is not attracted merely by existence of contradictory statements on a point, especially when the erroneous nature of the contradictions stands explained. He has further pleaded old age and respectability and has also craved for sympathatic treatment.
2. Sheikh Ghias Muhammad, Advocate, learned counsel for the respondent, has strenuously contended that the two pre--requisites of section 476, Cr. P. C., namely, a strong prima facie case and that the proceedings are not to vindicate spite but are expedient in the interest of justice, should be borne in mind before the proceedings against the delinquent are initiated or the complaint forwarded to the Court for trial. In this regard he has referred us to Mian Muhammad Jan Shah v. The State (PLD 1962 Pesh. 48) and In re: Chatur Jethaji (AIR 1932 Bom. 551). Under this very limb of the argument he has contended that on the basis of evidence available on the record, the dismissal of the writ petition has been a sufficient penalty for the respondent and, therefore, it will neither be expedient nor in the interest of justice that an enquiry should be held against the respondent. For the proposition what constitutes expediency in such cases, he relies on Manzoor Hussain v. The State (PLD 1963 Lah. 20). It has been next contended that on the evidence available on the record no Offence is made out under section 181, 193 or even 209, P. P. C. It is maintained that section 181, P. P. C. Pertains to false statement on oath or affirmation to public servant car person authorised to administer an oath or affirmation and because no false statement on oath has been made before this Court, the provisions of section 181, P. P. C. Are not attracted because even if it be assumed that the affidavits appended to the writ petition are false, the offence was committed before the Oath Commissioner and not before this Court. Similarly with regard to section 193, P. P. C.
Learned counsel contends that the section deals with punishment for false evidence given in any stage of a judicial proceeding and the offence attributed to the respondent is not covered by the language of the section itself. Coming to section 209, P. P. C., it has been vehemently urged that as the section covers cases of false claim made dishonestly in a Court of justice, this section also has no application to the facts of the case before us. It has been argued that section 208, P. P. C., the immediately preceding section, and section 210, P. P. C., the succeeding section, deal with cases before the civil Court, because of this context of section 209, P. P. C. The words "Court of Justice" appearing in the section have been interpreted to mean a civil Court. In support of his contention learned counsel has relied on .The Queen v. Begum Mahtoon ((1869) 12 S W R 37 (Cr.)). It has been further argued that because the High Court while hearing writ petitions does not function as a civil'
Court, the section has no applicability to the-proceedings before us. Reliance has been placed, on Ahmad Khan v. Chief Justice and The Judges of the High Court, West Pakistan (PLD 1968 SC 171.).
We have gone through 'these authorities-and we find 'that the words `Court of Justice" have been defined in section: 20 of the Penal Code itself 'as--under :- "The words `Court of Justice' denote a Judge who--is, empowered by law to act judicially alone, or a body of Judges which is- empowered; by law to act judicially as a body, when such Judge or body-of Judges is acting judicially."
It view of the definition-above-and-the farther-reason that the High Court while functioning under Article 98 of the abrogated Constitution no doubt exercises constitutional jurisdiction, the proceedings in Rehabilitation matters are obviously in the nature of civil proceedings in contradistinction to criminal proceedings, the contention loses its force. The argument that jurisdiction under Article 98 of the abrogated Constitution is of the nature of supervising exercise of public power and since no claim is made by the parties in such matters before this Court, the case will not be covered by section 209, P. P. C., is also ill-founded because according to the relief claimed in the writ petition the respondent not only came to this Court with the prayer that the orders of the Settlement authorities be quashed but also that he should be given the property in question on the basis of his possession before the prescribed date, namely, the 20th of December 1958.
3. Another objection raised on behalf of the respondent with respect to the applicability of section 209, P. P. C, is that a false claim has to be distinguished from false evidence on which such a claim may be based. It is argued that the claim-in the writ petition was a composite one, namely; invalidity of transfer of the property to respondents (Nos. 1 to 4) in the writ petition and disposal of, the property on merits on the writ petitioner's application, filed by him in this regard before the Settlement authorities. It has also been argued that the claim was not false to the, knowledge of the respondent and in any case the alleged false-claim was before the Settlement Department and not before this Court: It is maintained that for the above grounds and the further reason that the section stricks at claims and not evidence, section 209, P. P. C. Cannot be pressed into service.
For this proposition of law he has relied on Boddu Ramayya v. Chitturf Surayya and another (29 I C 71), Gour's. Penal Law, Volume II at page 128.(1955 Edition.), Suba Singh and others v. Emperor (AIR 1941 Pat. 165), Ghanshamdas Pursumal v. Emperor (35 Cr. L J 519) and Karamat All v. Emperor (30 Cr.
L J 221). It has beenfurtherargued I that according to the written statement filed by the respondent no-dishonesty in making the claim is ;established, on the record and as such the notice may be discharged. It has also been contended that mere contradictions are not actionable and unless and until there is a reasonable probability of conviction of the respondent, extra caution is necessary in proceedings against parties in such cases. Reference is made to Gopaldas Khetriya v.
Jnanedra NathDawn and others (AIR 1938 Cal. 677), Lala Nand Lal v. Emperor (AIR 1937 Lah. 867), Uppo Thein v. Buta Khan (AIR 1936 Rang. 473), In re : Rama-Prasad Malla (I L R 37 Cal. 13), Queen v.
Baijoo Lall and others (I L R 1 Cal. 450), Abdus Samad v. Keshab Lal Gope (PLD 1965 Dacca 46), M.
Liaqat Husain v. Vinay Prakash and another.( AIR 1946 All. 156) and Ningappa v. Emperor (AIR 1941 Bom. 408).
4. On behalf of the State it has been argued that -the nature of the present enquiry is merely .To look into the prima facie aspects of the case and 1lie Courts have always- been reluctant to hold an elaborate enquiry in such cases, for the reason that a thorough judicial, probe in and adjudication of the objections and pleas raised may prejudice the trial of the respondent for the offences alleged to have been committed in the proceedings before the Court. For this proposition reliance has been placed on the following passage in Mushtaq Ahmad Gurmani v. Z. A. Suleri and another (PLD 1958 Lah. 747) :- "There will be separate complaint for each of the above offences. I do not want to hold a preliminary enquiry because if the complaints are made after that enquiry the case of Hakim Saif A.I will be prejudiced."
It has been next contended that the offences mentioned in the notice are not exhaustive on the subject. It will be for the trial Court to frame charge against the respondent and it will be at the stage of conviction for the trial Court to give its verdict that the guilt of the respondent is punishable under which parti--cular section of the Penal Code. The further argument raised is that if an offence or offences have been committed, which are covered by various sections of the Penal Code -which may be overlapping, then again it will be for the trial Court to convict the accused under all or any particular section of the Code and the mere fact that a wrong section has been mentioned in the notice is no ground to discharge the notice. It is main--tained that the facts have' been mentioned in the notice and also in the order dismissing the writ petition and on the basis of the evidence to be led by the parties, the trial Court will determine the absence of guilt or innocence of the respondent and it will be premature to say either way at this preliminary enquiry stage, which has necessarily to be of summary nature and in no manner exhaustive. It has also been mentioned that section 196, P. P. C. Read with section 471, P. P. C. May also be applicable on the facts and circumstances of the case. Reference was made to Emperor v. Bansi Sheikh (I L R 51 Cal. 469). Learned counsel for the State has also referred to the various documents on the record of the writ petition and certain orders (copies of which have been placed on the record by respondents Nos. 1 to 4 in the writ petition) of the civil Court on objections filed by the respondent in some execution proceedings pertaining to the property in question and has argued that the respondent's claim was false to his knowledge.
5. We have heard learned counsel for the respondent with patience and after going through the mass of authority cited at the Bar we are of the confirmed view that no doubt, if it appears to the Court that it is expedient that an enquiry should be made in respect of the offence allege to have been committed, 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. For the purpose, the Court has to see that a prima facie case has been made out upon the evidence before it for enquiring further into the question whether the offence alleged has or has not been committed; all the same the Court need not and should not decide the question of guilt or innocence of the party against whom proceedings are taken. Further, the Court is not bound to hold a preliminary enquiry under the section and the absence of an enquiry does not per se vitiate the proceedings. However, the nature, method and extent of the enquiry are entirely in the discretion of the Court. Bearing these principles in mind, we hold that, in view of our findings in the writ petition that the claim of the respondent is false, a prima facie case has been made out for enquiring further into the question whether the offences under sections 193, 196, 209 and 471, P. P. C, have or have not been committed.
6. In the result we, overruling the objections raised on behalf of the respondent, order that a regular complaint be drafted by the Registrar of this Court and forwarded to the District Magistrate, Lahore, for proper action.