1. ' ASIF SAEED KHAN KHOSA, J.---Through this petition Muhammad Nazir petitioner-complainant has sought cancellation of pre-arrest bail granted to respondent No.1 by a learned Judge-in- Chamber of the Lahore High Court, Lahore through the order dated 18-6-2012 passed in Criminal Miscellaneous No 6671-B of 2012 in case F.I.R, No.20 registered at Police Station Civil Lines, Sialkot on 17-1-2010 in respect of offences under sections 420, 468 and 471, P.P.C.
2. We have heard the learned counsel for the petitioner and the learned Additional Prosecutor- General, Punjab appearing for the State and have gone through the relevant record of the case appended with this petition. It has been argued by the learned counsel for the petitioner that sufficient incriminating material was available on the record of investigation prima,facie establishing respondent No l's involvement in the alleged offences and that there was no malice on the part of the petitioner in prosecuting the respondent and therefore, the learned Judge-in-Chaml er of the Lahore High Court, Lahore was not justified in admitting the respondent to pre-arrest bail. As against that the learned Additional Prosecutor-General, Punjab appearing for the State has maintained that the State has not moved this Court seeking cancellation of the respondent's bail and thus, he is not in Any position to support this petition.
3. After hearing the learned counsel for the parties, and going through the available record it has straightaway been noticed by us that the offences under sections 420 and 471, P.P.C. are bailable Whereas an offence under section 468, P.P.C., although non-bailable, does not attract the prohibitory clause contained in subsection (1) of section 497, C.P.C. We .have repeatedly asked the learned counsel for the petitioner as well as the learned Additional Prosecutor- General as to whether any evidence has been collected 'during the investigation of the above mentioned criminal case prima fade establishing-that it was respondent No.1 himself who had forged the relevant document or not and they have stated before us in unison that no such evidence has so far become available on the record even tentatively establishing that it was none A other than respondent No.1 who had actually forged the relevant document. It is not denied that respondent No.1 has already joined the investigation and his physical custody is not required by the local police for 'further investigation of the case. It is trite that considerations for grant of bail and those for its cancellation are entirely different. No allegation has been levelled before us regarding any misuse or abuse of the concession of bail by respondent No.1. In these circumstances no occasion has been found by us for interference with the legitimateexercise of jurisdiction and discretion in the matter by the High Court through its order assailed through the present petition.
4. Before parting with this order we would like to clarify that we have not been able to approve or the observations made by the learned Judge in-Chamber of the Lahore High Court, Lahore in the impugned order and the legal position in that regard needs to be restated by this Court. It had been observed by the learned Judge-in-Chamber of the Lahore High Court, Lahore in paragraphs Nos.2 and 3 of the impugned order a,' follows: "2. The c omplainant of the case, who is a private person, has lodged an F.1 R., attributing the allegation of producing a document in the proceedings of a civil suit, which according to the complainant, was result of forgery and tampering. The document was received in et idence as Exh.P.1 and the parties tried their luck in the said civil suit up to the level of apex Court. Although the provisions of section 190 Cr.P.C. lays down general rule that any person can set the criminal law in motion but. section 195, Cr.P.C. is one of the exceptions to such general rule. Provisions of section 195(1)(c), Cr.P.C. provides that in case of offence under section 195, Cr.P.C. only the public authority concerned and the Court has the right to file a complaint and unless there is a complaint by such public authority or Court, as the case may 6e, no Criminal Court shall take cognizance of such offences. Every offence mentioned in section 195, Cr.P.C. though affects a' private person, yet such private person stands deprived of general vested right to have recourse to the criminal law. This view find supports from an authoritative view of the hn'ble Supreme Court of Pakistan in case, of Abdul Wahab Khan versus Muhammad Nawaz and 7 others (2000 SCM R 1904).
4. When the complainant has no authority under the law to move the investigating agency under criminal law, the very registration of a criminal case would he an act which is without lawful authority. The courts, which have dealt the civil suit of which proceedings, Exh.P.1, the agreement to sell was a part, have never proceeded to initiate any proceeding under section 195, Cr.P.C.
5. Rather issue No. 3 regarding frivolous nature of the suit or falsity of the plaint of the plaintiff has been decided against the complainant of the, criminal case. The complainant has lodged the F.I.R. after almost 12 years of the alleged commission of offence. Such delay has been attempted to be explained by the learned counsel for the complainant by arguing that it was just after the decision of the Hon'ble Supreme Court of Pakistan on 14-11-2011 that the grievance of the complainant was raised but for the reasons that firstly the Civil Court have never moved the criminal machinery in this regard and secondly, the complainant a private person has no authority under the law to get registered such case.
6. It appears that the provisions of section 195(1)(e), Cr.P.C. had not been correctly appreciated by the learned Judge-in-Chamber and for facility of reference the relevant provisions are reproduced here: "195. Prosecution for ........... certain offences relating to documents given in evidence.--
(1) No Court shall take cognizance: (a)------- (b)------- 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 some other Court to which such Court is subordinate."
7. ' We may observe with respect that the learned Judge-in-Chamber of the Lahore High Court, Lahore seems to have confused the expression "cognizance" appearing in section 195, Cr.P.C. with the expressions "cognizable" and "non-cognizable" finding mention in sections 154 to 157, Cr.P.C. and had also failed to appreciate that taking of cognizance of an offence by a court is a thing quite distinct from investigation of a reported offence by the police or any other investigation agency. The learned Judge-in-Chamber ought to have appreciated that the provisions of section 195(1)(c), Cr.P.C. deal only with taking of cognizance of an offence by a court and the same do not place any embargo upon reporting such an alleged forgery to the police, registration of an F.I.R. in that regard or conducting of an investigation in respect of such an allegation. There may be situations where a court before whom an allegation has been levelled regarding production or giving in evidence of a forged or tampered document may in the first instance like to get the matter of alleged forgery inquired into or investigated by a trained investigating agency or it may require the party levelling the allegation to report the matter to the investigating agency for an inquiry or investigation before making up its mind whether to lodge any complaint in writing under section 195(1)(c), Cr.P.C. before the trial court or not. In the case ,of Industrial Development Bank of Pakistan and others v. 'Man Asim Fareed and others (2006 SCM R 483) it had expressly been held by this Court as follows: "Needless to add that the registration of an F.I.R. and taking of cognizance of cases were two distinct and independent concepts under the criminal law; that if the intention of the law- maker was to put any clog on the registration of an F.I.R. then the Legislature would have said so specifically and that if the law put a condition only on the taking of cognizance then it can never be read to imply prohibition on registration of F.I.Rs."
8. The said exposition of law was subsequently followed by the Lahore High Court, Lahore in the case of Muhammad Bashir alias Bakola and 8 others v. Superintendent of Police, City. Division, Lahore and 9 others (2007 PCr.LJ 864). It may not be out of place to mention here that .in the context of the provisions of section 197, Cr.P.C., which also contemplate a prohibition against taking of cognizance of an offence by a court in the absence of a sanction for prosecution, this Court had observed in the case of Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Court (PLD 1992 SC 72) as under: "10. There are other cases referred to like R.C. Pollard v. Satya Gopal Mazumdar (AIR 1943 Calcutta 594), Matiar Rahman Dewan v. The State (PLD 1958 SC 21), Syed Ahmad v. The State (PLD 1958 SC 27) and lqbal Hussain Siddiqui and 2 others v. The State (1970 SCM R 726) followed by Syed Mushtaq Hussain Shah Bokhari v. The State and another (PLD 1981 SC 573), all indicating that proceedings can start in a Criminal Court against the functionary unhampered till the stage when it is found that there is nexus between the act complained of and the official position enjoyed by him in which case and at that stage the sanction of the competent authority is to be sought for and obtained before proceeding further."
9. An analogy from the last mentioned precedent case could be drawn to conclude that if the provisions of section 195(1)(c), Cr.P.C. place a prohibition against taking of cognizance of an offence by a court except C in the given manner then all prior steps taken before the stage of taking of cognizance by a court could be deemed to be permissible. It appears that this aspect vis-a-vis the provisions of section 195(1)(c), Cr.P.C. had escaped attention of the learned Judge-in-Chamber of the Lahore High Court, Lahore while recording his observations contained in paragraphs numbers 2 and 3 of the impugned order which observations reflect a misconception of the real intent and import of the said provisions and that is why the present clarification has been considered by us to be necessary and called for.
5. For what has been discussed above this petition is dismissed and leave to appeal is refused.