C.M.A. No,1982 of 2010.
TARIQ JAVAID, J.---This application has been filed for recalling order dated 4-1-2009 on the ground that the same has been procured by means of misrepresentation of facts before this Court.
The applicant has alleged that during pendency of civil litigation a complaint against the applicant could not be lodged under section 195(1)(c), Cr.P.C. as such order dated 4-11-2009 merits to be recalled.
2. Brief facts as narrated in the petition are that the petitioner is legal heir of one Ghazanfar Abbas who owned 188 Kanals, 05 Marlas agricultural land and after his death mutation was entered in the name of the petitioner. It is further maintained that the applicant in application under section 12(2), C.P.C. was all along contesting the case along with other contestants and assailed the entry of mutation entered into the name of the petitioner since 1994. However, it was nowhere alleged that there was an agreement to sell dated 4-12-1992 between predecessor-in-interest of the petitioner and the applicant, which according to the learned counsel for the petitioner was an afterthought to deceive the petitioner as well as to frustrate the proceedings in the Revenue Court which ended up in favour of the writ petitioner.
3. According to the learned counsel for the applicant, on the basis of an agreement to sell dated 4- 12-1992, the applicant No,1 tiled a suit for declaration that the Mutation No,945 dated 28-4-1994 is fictitious and as such nullity and relief for specific performance was prayed for as a consequential relief. Allegedly, writ petitioner, on the basis of mis statement, had procured order dated 4-11-2009, for registration of a case against the applicant, for having forged alleged Iqrarnama the and deceived the petitioner. It is argued by the learned counsel for the applicant that once civil litigation was initiated then under section 195(1)(c), Cr.P.C. the criminal A proceedings could not be initiated unless a direction was passed by the learned trial Court, hence the proceedings against the applicant were illegal and criminal proceedings could not be continued against the applicant.
It is further maintained that the document impugned in the Civil Court is alleged to have been forged and it remains to be seen whether it was a genuine or a forged document and criminal proceedings are likely to prejudice the case of the petitioner as well as these are calculated to over awe the applicant and designed to pressurize her for withdrawal of the case, as such criminal proceedings are based on mala fide in law and are not sustainable. Reliance has been placed on Abdul Wahab Khan v. Muhammad Nawaz and 7 others (2000 SCMR 1904), the relevant portion is as under:--
8. "We have also dealt with the provisions as contained in section 195, Cr.P.C, to see that up to what extent it does constitute a bar in such like cases and whether appellant was competent to file the complaint against respondents who all were Government officials. The general rule is that any person irrespective of the fact whether he is aggrieved or not and his interest is at stake or otherwise having knowledge about the commission of any offence may set the law in motion but the provisions as contained in sections 195 to 198, Cr.P.C. contain exceptions to the said general rule from taking cognizance of certain offences unless the functionary concerned institutes a complaint. It is well-settled by now that "provision of section 190, Cr.P.C. lays down the general rule that any person can set the criminal law in motion but section 195, Cr.P.C. is one of the exceptions to that rule. Provision of section 195, Cr.P.C. provides that, in case offence under section 195, Cr.P.C. only the public authority concerned and court has the right to file a complaint by such public, as the case may be, no Criminal Court shall take cognizance of these offences. Every offence mentioned in section 195, Cr.P.C. though affects a private person, yet he stands. deprived of his general vested right to have recourse to the criminal law. The purpose of enacting section 195, Cr.P.C. has long been well identified. It may at the best be considered in the context of sections 190, 476 and 476-A, Cr.P.C. Section 190 lays down the general rule that any person can set the criminal law in Motion and section 195 is one of the exceptions to that rule. The latter says that in the category of cases mentioned in its clause (a), only the public authority concerned and in the category of case Mentioned in clauses (b) and (c) only the Court concerned has right to file a complaint and unless there is a complaint by such public authority or Court, as the case may be, no criminal Court shall take cognizance of these offences. Thus, though every offence mentioned in section 195 must necessarily affect private person, yet he stands deprived of his general vested right to have recourse to the criminal law. One must naturally ask---what is the reason for so depriving him? To deprive a person of his right to redress is a strong thing and there must need be strong reasons or legislative purpose behind it. These offences have been selected for the Court's control because of their direct impact on the judicial process. It is the judicial process, in other words, the administration of public justice which is the direct and immediate object or victim of those offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realized. As the purity of the proceedings of the court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complainant against the guilty party." There is no cavil to the proposition" it seems to follow inexorably that clause (c) of section 195 (1) will fail in its object if the literal construction contended for by the petitioner, counsel is adopted. The adoption of that construction will inevitably result in extending the application for clause (c) to cases to which it was not, and could not be intended to apply. The purposive approach to the interpretation of clause (c) of section 195(1) on the other hand leads and leads ineluctably, to the construction that clause applies to only those offences that have a close nexus between the offence and the proceedings", in other words, it "contemplates cases of tampering with the documents on the record of court or cases of previously forged documents being used as genuine in certain proceedings. This view is reinforced by the following observation of the Select Committee who drafted this clause in 1923:-- "In short, section 195 now deals with limitations that exist to the cognizance of offences by a Court.
While if a Court before whom (the underlining is mine) an offence mentioned in section 195 is committed wants to take action against the delinquent, it can only proceed under section 476."
In the light of touchstone of the criterion as discussed hereinabove we have examined question of alleged forgery and tampering with judicial files as alleged by the complainant and in our considered view it attracts the provisions as contained in section 195(1)(c), Cr.P.C. and complaint could have been filed by "Court concerned" against the delinquents who were party in the proceedings. It is an admitted feature of the case that the complainant was neither the "Court concerned" nor "party in the proceedings" which were being conducted in the Court. It is worth- mentioning that the appellant was substituted with Mr. Nasrullah Khan, Magistrate who had taken over his charge on 16th February, 1984 and, therefore, the compliant could have been filed by him. It hardly needs any elaboration that "a Court continues to be a Court notwithstanding the change of Presiding Officer and consequently a successor in office is equally competent to make a complaint in respect of offence committed before his predecessor". (PLD 1976 Pesh. 64 + AIR 1940 Lah. 242
(DB) + AIR 1928 Lah. 759) and after taking over Mr. Nasrullah Khan alone was competent to do the needful and not the complainant."
4. On the basis of the above said judgment, it is argued that if pendency of litigation was brought to the knowledge of this court, the order dated 4-11-2009 could have not been procured by the writ petitioner.
5. On the other hand, learned counsel for the writ petitioner has vehemently argued that the extent to which section 195(1)(c), Cr.P.C. operates has been determined time and again by the Superior Courts. According to the learned counsel for the writ petitioner in Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul. Nawaz) Narowal and 5 others (PLD 1992 Lahore 178), it was held that where document was forged before the commencement of the civil litigation the criminal proceedings could be initiated against the parties alleged to have forged the document. He laid stress on the proposition that civil and criminal proceedings could continue at the same time and also relied upon the Supreme Court judgments passed in Riaz ul Haq v. Muhammad Ashiq Jorah (2000 SCMR 991). Therefore, according to him his case is squarely covered by the judgment passed by the Full Bench,, which still holds the field. The learned counsel for the writ petitioner has also relied on number of judgments wherein it has been held that civil and criminal proceedings may continue simultaneously as there is no specific bar against it.
6. The comparison of judgments rendered in. Abdul Wahab Khan's case supra with Muhammad Shafi's case and Riaz-ul-Haq's case shows that the ratio decidendi in Abdul Wahab Khan's case is altogether different. Thus there is divergence of opinion. The dictum laid down by the honourable Supreme Court in Abdul Wahab Khan's case shows that the distinction drawn by the Full Court in Muhammad Shafi's case is of little significance. The Full Court at page 197 observed as under: -- "As the two interpretations of clause (c) of subsection (1) of section 195 of the Cr.P.C. are so evenly balanced, the one that does not deprive the ordinary Criminal Courts of their ordinary jurisdiction and persons of the right of redress must be adopted. On that view of the matter also, the view that clause (c) of subsection (1) of section 195 of the Cr.P.C. does not apply to cases in which the forgery was committed before the institution of a suit or other proceedings in which the forged document is produced or given in evidence should, in my opinion, be preferred."
"21. Now can it be said that the offence of forgery was against the administration of justice in a case in which the offence was committed, say, ten to twenty years before the suit in which the forged document was produced or given in evidence? The answer must obviously be in the negative. The forger must have, before the suit, used the forged document on a number of occasions in deceiving a number of persons. And when his fraud and forgery came to light and the real owner or the persons defrauded were preparing to take criminal proceedings, he hit upon the clever device of instituting a civil suit and producing the forged document in the civil suit. He would; then, on the view contended for by the petitioner, be able to say: 'Well, I have produced the document in the Civil Court; you have to wait till that Court has finally decided the genuineness or otherwise of the document, for unless that is done, that Court will not be in a position to say whether an offence of forgery was committed or not and to lodge a complaint under section 195'. Unfortunately, civil suits usually take very long to decide and, in practical terms, it may amount to completely defeating the ends of justice. On this view, therefore, the Civil Courts will become a place for the protection of criminals. This obviously could not have been the intention of the law. The cause of action for proceeding against the forger arose immediately when the offence of forgery as defined in section 463 of the P.P.C., was committed. The commission of that offence was not only intended to deprive the real owner of his property but had also enabled the forger to deceive others and to deprive them of money. No proceedings were pending in any Court at that time. There was, therefore, no question of the offence, at the date of its commission, being against the Court or the administration of justice; nor did it, then, in any way sully the proceedings of the Court, for none were pending."
7. The above view has though been followed in number of cases, yet it appears to be distinguishable as an attempt appears to have been made to make an inroad to circumvent the statutory provision which otherwise requires to be interpreted on the established principles of statutory interpretations. Moreover, the reasoning given in Para 21 of the judgment also suffers from legal infirmity. The Full Bench in Para 21 of the judgment held as follows:--
8. The ratio decidendi as reproduced above appears to be contrary to the view taken by their Lordships while rendering judgment in the case of Abdul Wahab Khan v. Muhammad Nawaz and others (2000 SCMR 1904) wherein it was held that it was only for the Court to report an offence under section 195(1)(c), Cr.P.C., as it necessarily related to obstructing and impending the course of justice and had direct impact on the judicial process.
9. There is no cavil to the proposition advanced by the learned counsel for the writ petitioner that civil and criminal proceedings may continue simultaneously. This proposition is fully supported by the judgments rendered in Rafique Bibi v. Muhammad Sharif (2006 SCMR 512) and in Haji Sardar Khalid Saleem v. Muhammad Ashraf (2006 SCMR 1192). However, for the reasons recorded above an exception to the general rule has been created by section 195(1)(c), Cr.P.C, which is acknowledged by the superior courts.
10. The distinguishing feature in. the case is that the complainant had not only made grievance of offences as enumerated, in section 195(1)(c), he had also alleged an offence of cheating and prayed for registration of case under sections 419 and 420 of the P.P.C. Offences under the said sections are distinct from the offence of forgery. These offences do not fall within the purview or section 195(1)(c), Cr.P.C. In Amin Ahmad Khan v. The State 1987 MLD 1494 it was held that offences under sections 419 and 420 being distinct offence the proceedings could continue and the bar contained in section 195(1)(c), Cr.P.C. was not applicable. Similarly in Bashir Ahmad v. State (1999 YLR 2386) it was held that the bar contained in section 195(1)(c) was not operative in case of offences under sections 419 and 420 of the P.P.C.
11. The learned counsel for the applicant pointed out that this court has already stayed criminal proceedings during pendency of the civil litigation in Writ Petition No,2523 of 2010, titled Muhammad Latif v. Inspector/Inquiry Officer etc. Therefore, on the principle of consistency the criminal proceedings merit to be stayed in this case as well. The distinguishing feature between the two cases is that in reference to above case criminal case was registered as a counterblast to the civil litigation and prima facie the contents of the complaint did not disclose any criminal liability.
Moreover, an allegation of forgery of document, the validity whereof was under judicial scrutiny, had been made. Thus, in the circumstances of referred to above case the criminal proceedings were stayed by this Court. Whereas in the present case specific allegation of cheating is alleged.
Therefore, relying upon the dictum laid down by the Hon'ble Supreme Court, application under section 12(2) of the C.P.C. is dismissed. The order dated 4-11-2009 is modified to the extent that the respondent No,3 shall receive the complaint and proceed strictly in accordance with section 154, Cr.P.C. with no order as to costs.