Tariq Aslam Sheikh, petitioner, was convicted by the learned Magistrate S. 30/Ist Class, Jhang, to undergo a sentence of three years under Section 468 PPC and also to pay a fine of Rs, 20,000/-, or in default whereof to further undergo SI for six months; Under Section 465 PPC he was further ordered to suffer two years SI and under Section 471 PPC to undergo two years SI. He was also given the benefit of Section 382-B PPC by the learned Magistrate vide judgment dated 26.9.2007.
2. The petitioner has challenged his conviction before the Court of sessions and his appeal was dismissed by the learned Additional Sessions Judge Jhang, vide judgment dated 24.1.2008. Feeling aggrieved by the judgments mentioned above, the petitioner has preferred this revision petition.
3. Precisely the facts of the case FIR No, 711/06 dated 16.12.2006 for the offences under Sections 468/465/471 PPC at police station Kotwali, Jhang, are that the complainant namely Haq Nawaz submitted a written application EX. PH along with copy of order of Hon'ble Lahore High Court Lahore Ex.PG against five accused persons including Tariq Aslam alias Tony for registration of criminal case as ordered by Hon'ble Lahore High Court, Lahore. It was submitted in the application by the complainant that Tariq Aslam alias Tony got rupees seven lacs as a loan and a promissory note was written, he did not pay the amount, the complainant filed a civil suit which was decreed in favour of the complainant namely, Haq Nawaz, accused filed an appeal in the Hon'ble Lahore High Court, Lahore but after that the accused prepared a bogus and fictitious affidavit dated 7.3.2002 and submitted in the Hon'ble Lahore High Court, Lahore that the compromise has been effected between the parties and the accused tried to get favorable decision from the Hon'ble Lahore High Court, Lahore on this fictitious and bogus affidavit, this Court, passed an order for criminal proceedings against him and the present case was registered.
4. Learned counsel for the petitioner contends that the offences under Sections 420/465 and 471/ PPC were stated to have been committed during proceedings before this Court and that under subsection (1) (c) of Section 195 Cr.P.C. the learned trial Magistrate was not competent to take cognizance of the said offences upon a report under Section 173 Cr.P.C; that taking of cognizance, subsequent proceedings by the trial Court and the conviction and sentence having been passed by the learned lower Courts through the judgments by the learned Magistrate as well as learned ASJ are illegal and liable to be set aside; that the High Court could have filed a complaint before a Court of competent jurisdiction and on the basis of said compliant the trial Court could have passed the conviction.
5. Conversely, learned DPG states that it is a serious matter. The offence was committed during proceedings before this Court. The petitioner did not take care to respect the highest Court of the Province and that offence under Section 465/468/471 PPC stood proved against him and that reliable evidence was available on the record. He supported the decisions rendered by the two Courts below.
6. After hearing the learned counsel for the parties and perusing the record this Court is of the view that word 'complaint' has been defined in Section 4(h) Cr. P.0 which is as follows: "Complaint" means the allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer."
7. The word 'Report of police officer' has been defined in Section 173 Cr.P.0 which is as under:-- Report of police officer'.--(1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the Police station shall,
(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Govt. setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and
(b) Communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person if any, by whom the information relating to the commission of the offence was first given.
8. The provisions of Section 195 Cr.P.C. are as under:-- 195. Prosecution for contempt of lawful authority of public servants: Prosecution for certain offence against public justice: Prosecution for certain offences relating to documents given in evidence.--
(1) No Court shall take cognizance:-- (a)of any offence punishable under Sections 171 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate; (b)of any offence punishable under any of the following sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceedings in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or
(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.
(2) In clause (b) and (c) of the Sub-section (1), the term "Court" includes a Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the [Registration Act, 1908].
(3) For the purpose of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decree no appeal ordinarily lies to the principal Court having ordinarily original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate: Provided that-- (a)where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be Subordinate; and (b)where appeals lie to a Civil and also to a Revenue Court according to the nature of the case or proceeding in connecting with which the offence is alleged to have been committed.
(4) The provisions of sub-section (9), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offence, and attempts to commit them.
(5) Where a complaint has been made under sub-section (1), clause (a), by a public servant, any authority to which such Public servant is subordinate may order the withdrawal of the complaint and, if does so, it shall forward a copy of such order to the Court and, upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.
9. Under sub-section (1) (c) of Section 195 Cr.P.0 an offence committed under Sections 465 and 471 PPC cannot be taken cognizance except upon a complaint in writing of the concerned Court or some other Court to whom it is subordinate. In the present case, the alleged offence is stated to have been committed during proceedings before the High Court. The High Court in these circumstances was the only competent authority to lodge complaint before a Court of competent jurisdiction.
10.Section 154 Cr.P.0 deals with regard to the information of cognizable cases which reads as under:
154. Information in cognizable cases. Every information relating to the commission of a cognizable offence if given orally to an officer in charge of a police station shall be reduced to writing by him or under this direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the provincial Government may prescribe in this behalf."
11. The information lodged with the SHO is not a complaint under Section 4(h) Cr.P.C. Similarly, the police report submitted under G Section 173 Cr.P.0 is not a complaint and Section 4(h) excludes the report of police officer from the domain of the word complaint.
12. In the present case, learned Magistrate took cognizance of the offence upon a police report under Section 173 Cr.P.C. ignoring Section 195 Cr. P.0 that he was not competent to do so. In view of above sections of law, learned Magistrate was not competent to take cognizance of the offences under Sections 467/468/471 PPC.
13.Learned DPG submits that Section 420 PPC is not covered by the domain of Section 195 Cr.P.C., hence, proceedings under Section 420 PPC could have been initiated by the learned trial Court.
When confronted with this situation, the offence under Section 420/467/468/471 PPC committed in the series of same facts and all offences mentioned above so inter-connected that the separate trial of I the said offences cannot be conducted. Learned counsel for the petitioner has relied upon (PLD 1978 Lahore 307) and submitted that when the offences mentioned in a case are so connected inter see that either of the offences can be separately tried than entire proceedings conducted by the trial Court in violation of Section 195 Cr.P.0 would vitiate. He has taken refuge under the above mentioned dictum of Lahore High Court. Respectively relying upon the said dictum of this Court I am of the view that entire proceedings having been conducted by the learned Magistrate are illegal and without jurisdiction. He has conducted proceedings without submissions of a complaint by the Lahore High Court, hence, J wrongly taken cognizance of the offence upon a report of police submitted under Section 173 Cr. P.C. As already observed that the proceedings held by the learned trial Court are illegal, therefore, the conviction and sentence having been passed by the learned Magistrate vide his judgment dated 26.9.2007 and maintained by learned ASJ vide judgment dated 24.1.2008 are also illegal. Consequently, the same are set aside. The petitioner is in custody. He shall be set at liberty if not required in any other case. , 14.
However, the High Court may, if so advised, file any complaint against the petitioner.