' MUSHIR ALAM C.J.---Petitioner has impugned the order dated 23-12-2011 passed by the Vth A.D.J.
Karachi (South) in Family Appeal No,36/2011 whereby order dated 14-4-2011 passed by IInd Civil and Family Judge, Karachi South in Family Suit No,768/2009, dismissing the application under section 193/468/471/420, P.P.C. It appears that the instant proceedings are outcome of the family dispute between spouses who have now fallen apart.
2. Brief facts appear to be that the petitioner filed a suit for recovery of dower amount and dowry articles. It appears that during the course of evidence, the respondent No,1 produced receipts of gold jewelry, which were exhibited as Exhs. Nos.D/1/8 to D/1/18. The receipts exhibited were denied by the appellant. Consequently the purported author of the receipts namely Muhammad Meraj Khalid owner of Meraj Khalid Jeweller was examined. He denied having issued such receipts and or selling the jewelry mentioned in the subject receipts, which led to the filing of application before the learned Trial Court. The application was dismissed as noted above on 14-4-2011, instant petitions arises therefrom.
3. It was contended by M/s. Habib Ahmed and Amir Saleem advocates that the learned trial Court dismissed the application merely on the assumption that "some matter/dispute is pending before Federal Board of Revenue regarding issuance of the relevant receipts". It was urged that merely.
Pendency of dispute before the Board of Revenue does. Not desists the Court from taking cognizance of the matter before the court, where perjured or false documents are tendered in evidence. According to the learned counsel, reference to the "Court of Revenue" in terms of Section 195 and Section 476 Cr.P.C. Does not apply to the hierarchy of authority under the Taxation Law. It is urged that "Revenue Court", referred to in the provisions noted above relates to the "Revenue Courts" under the Sindh Land Revenue Act, 1967, which deals with matter pertaining to revenue land and immoveable property. It was argued that that since false evidence has been produced before the learned Family Court, which for all intent and purpose is a Civil Court thus the family court could take cognizance of the matter before it or transfer it to the court of competent jurisdiction. In support of his contention, he has placed reliance on the case of Hakim Muhammad Ahmed v.
Shaheen Bibi and others (1991 PCr.LJ 1879), H. Munawar Ali v. Mst. Sarwar Bano (1989 MLD 4654) and Abdullah Tang .v. Saleem. Saba and another (2001 PCr.LJ 1976).
4. It is further contended that Family Court is fully competent to take cognizance of the matter in issue being a Civil Court as held by a bench in the case of Dr. Races Farhan Mushtaq and another v Mst.Naheed @ Mona and 3 others (1996 MLD 1749). In cited case an application under Section 476, Cr.P.C. Was held to be maintainable.
5. Mr. Habib Ahmed, learned Counsel urged that the petitioner has not claimed that respondent may be penalized or punished but to maintain the sanctity of judicial proceedings, it is necessary that witness and parties coming to the Court must be truthful and do not produce managed or tampered evidence, therefore courts are empowered to punish perjury or false evidence.
6. It is further urged that if same perjured evidence or docurnent is used before more than one Court than each Court where the evidence is produce could take cognizance and initiate legal proceedings as contemplated in law. It was stated that the controversy before the Board of Revenue relates to tax liability, if any, in case same set of documents are used before the Tax Authorities and are found to be fabricated or manipulated liability or proceedings for concealment of income or tax may be initiated, therefore pendency of a dispute before the Board, of Revenue is of no relevance as regard the issue in hand According to Mr. Habib Ahmed, independent offence has been committed before the Family Court by producing purported forged receipts.
7. Learned counsel for the respondent vehemently opposed, the petition. It is contended that there is concurrent findings of the Trial and Appellate Court and this Court cannot upset such findings in exercise of writ jurisdiction. In support of his contention reliance was placed on the case of NAILA JUNAID v. ADDITIONAL DISTRICT JUDGE and 2 others (2005 MLD 834). It is further urged that concurrent findings recorded by the two Courts below cannot be interfered, it is further urged that courts below are seized of the jurisdiction and discretion to decide the matter.
8. It is further stated that in cases of family feud or dispute, personal vengeance and vendetta always hovers, which should not be allowed to be used to entangle a party in criminal prosecution.
It was, therefore, urged that petition is liable to be dismissed.
9. Mr. Sarwar Khan, learned AAG present in Court in other cases was also called upon to render assistance, who heard the matter in Court. According to him under- section 195, Cr.P.C. All Courts mentioned .Therein could take cognizance of the matter depending on the facts and circumstances of the case. Family Court is fully competent to independently examine the merits of the case.
10. Mr. Saleem, learned APG was also in attendance in other case has also rendered valuable assistance. It is contended that section 6 Cr.P.C. Defines Courts of Session and Courts of Magistrate.
It also includes other. Courts wherein criminal prosecution takes place. Civil Court is defined under Section 3 of the Sindh Civil Court Ordinance, 1961 which includes all Courts including Family Court and the Rent Controller 'under section 4(m) of Cr.P.C. It is stated that any judicial proceeding within the contemplation of section 4(m) ibid includes any proceedings in the course of which evidence is or may be legally taken and if at all such definition is applied then proceedings before the Board of Revenue are also judicial proceeding within the contemplation of sections 195 and 476. Cr.P.C. He has placed. Reliance on ABDUL HAFEEZ v. THE STATE (PLD. 1981 SC 352) and Syed ESSA NOORI v.
DEPUTY COMMISSIONER, TURBAT and 2 others (PLD 1979 Quetta 188).
' Having heard the arguments and perused the, record.
11. As noted above the application under sections 193, 468, 471 and 420. P.P.C. Was prompted on production of Exhs.D/I /8 to D/1/18 during course of recording of evidence. The author of receipts was also examined who denied the veracity of receipts. Learned Trial Court declined to take cognizance of the matter as follow.
"The record also shows that photocopy of two different affidavits of one Maira,' Khalid are also supported/supplied by the plaintiff through advocate in her application under section 15 of the Family Court Act, 1964 dated 23-12-201Q which shows that some.Matter/dispute is pending before Federal goard of Revenue regarding issuance of the relevant receipts. ".
' Above findings was endorsed by the learned Appellate Court and it was further held that since the receipts are in the name of MRs, Afzal who is not party in the aforesaid case nor she is witness in the proceeding and secondly since "some matter/dispute is pending before Federal Board of Revenue regarding issuance of receipts" which fact was not disclosed in appeal and therefore, the Court came to a conclusion that "trial Court committed no illegality".
12. Adverting to the first contention of the learned counsel for the respondent that concurrent findings cannot be disturbed by this Court. Indeed concurrent findings are normally not disturbed nor lightly dislodge, unless it is shown that it is based on gross misreading, non- reading of material or evidence on .Record and or non-appreciation and misapplication of certain provisions of law that resulted in miscarriage of justice and or the court below acted in exercise of jurisdiction illegally or with material irregularity. In the case of Naila (supra) in a the suit for partition, written statement was filed denying the allegations and in view of the stand taken in written statement the suit was withdrawn. Petitioner filed an application under Section 476 Cr.P.C. On the ground that false statement was made in the plaint. The Court observed that the case has not proceeded on merits nor any evidence was led, the assertion made in the Plaint was not tested at trial therefore, the Court refused to invoke the jurisdiction. On questions of facts, where two views are possible the Courts are reluctant to exercise judicial review or to substitute its own findings. However, where the factual finding is not substantiated from record or where such finding is based on non- appreciation, misapplication or misinterpretation of law resulting in miscarriage of justice, judicial review could be invoked. In order to appreciate the contentions of parties it would be appropriate to browse through sections 195 and 476, Cr.P.C. Which reads as follows.
"195. (1) No Court shall take cognizance:-- Prosecution for contempt of lawful authority of public servants.-- (a) /of any .Offence punishable under sections 172 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; Prosecution for certain offences against public Justice.-- 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 proceeding in any Court, except, on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or Prosecution for certain offences relating to documents given in evidence.--(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.)
In clauses (b) and (c) of subsection (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).
(2) For the purposes of this section, a Court shall he 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 decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate; Provided that....
(a)............
(b)
(4)
(5)
Section 476 Cr.P.C.
"(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 trial in Chapter XXII.
(2) When in any case tried under subsection (1) the Court finds the offender guilty, it may, notwithstanding anything contained in subsection (2) of section 262:--
(a) pass any sentence on the offender authorised by law for such offence, except a sentence of death, or imprisonment for life, or imprisonment exceeding five years, if such Court be a High Court, Court of Session, a District Court or any Court exercising the power of a Court of Session or a District Court;
(b) sentence the offender to simple imprisonment for a term which may extend to three months, or to pay a fine not exceeding one thousand rupees, or both, if such Court be a Court of a Magistrate of the first class, a Civil. Court other than a High Court, a District Court, or a Court exercising the powers of a- District Court, or .a Revenue Court not inferior to the Court of Collector;
(c) Sentence the offender to simple imprisonment for a term not exceeding one month, or to pay a fine not exceeding fifty rupees, or both, if such Court be a Criminal Court or a Revenue Court other than a Court referred to in clause (a) or clause (b).
(3) The powers conferred on Civil, Revenue and Criminal Courts under this section may be exercised in respect of any offence referred to in subsection (1) and alleged to have been committed in relation to any proceeding in such Court by the Court to which such former Court is subordinate within the meaning of subsection (3) of section 195.
(4)...
(5)....
476-A. Forwarding of cases for trial by Court having jurisdiction.--(1) If the Court in any case considers that the person accused of any of the offences referred to in section 476, subsection (1), and committed in, or in relation to, any proceedings before it,' should not be tried under that section, such Court may, after recording the facts constituting the offence and the statement of the accused person, as hereinbefore provided, forward the case to a Court having jurisdiction to try the case, and may require security to be given for the appearance of such accused person before such Court, or, if sufficient security is not given, shall forward such person in custody to such Court:
(2) The Court to which a case is forwarded under this section shall proceed to hear the complaint against the accused person in the manner hereinbefore provided.)
On perusal of the provisions referred to above, it is clear that all the Courts that are empowered to record evidence may it be exercising Civil, Criminal or Revenue jurisdiction, have independent jurisdiction to take cognizance of perjury committed in any proceeding before it. In case offence of perjury within the contemplation of sections 190 and 476 Cr.P.C. Is committed before more than one judicial forum or court, each judicial forum or 'court is competent to take cognizance in its own right. The cognizance of perjury by one court does not regulate or affect the cognizance or otherwise of the offence by any other judicial forum or court.
13. Family Court is categorized as Civil Court, empowered to record evidence, thus Family Court being Civil Court could take cognizance under sections 195 and 476 Cr.P.C, which provisions are a check on the litigant and parties and it arms the courts with authority to commit any person who mislead the court by producing perjured evidence. Courts exercising Civil, Criminal or Revenue jurisdictions are competent to try offence punishable under numerous provisions of P.P.C.
Enumerated therein including sections 193 (punishment for giving false evidence), when such offence is alleged to have been committed in or in relation to any proceeding in any Court which is competent to take evidence. In event any person dare to give false evidence in any court competent to record evidence, will expose himself to be committed for perjury.
14. Examining the case in hand in the light of above, in the instant case Exhibit Nos.D1/8 to D1/18 (Receipts of Jewelry on the letter head of M/s Meraj Khalid Jeweller), were tendered in evidence by Ahmed Saroosh, the respondent No,1 herein. The , petitioner examined proprietor of M/s Meraj Khalid Jewellers namely Muhammad Mairaj, on 24-3-2011,the author of Exhibits Nos.D1/8 to D1/18, who disowned the said exhibits, he stated in his deposition that said receipts were not issued by him and are fake receipts. Prima facie petitioner was able to make out a case for perjury within the contemplation of provisions referred to above. Now it is only at the trial it could be ascertained as to whether the receipts were in fact forged if at all, either by the beneficiary using it or the author has dishonestly denied the receipts purposely to avoid financial implication before the Income Tax or Authority (Federal Board of Revenue).
15. Indeed it is rightly observed by the learned appellate court that beneficiary MRs, Afzal named in the receipts was neither party to the proceedings, nor she has produced the subject receipts nor she was examined in the Court, but this fact alone will not wash away the alleged perjury committed by the witness (i,e, Respondent No,1) who produced the purported forged receipts in his evidence during the trial before the Family Court. There is no allegation of perjury against the beneficiary but against the person who produced the subject receipts, conclusion of the learned appellate court that since the receipts are in the name of MRs,Afzal who is not party in the aforesaid case nor she is witness in the proceeding and secondly since "some matter/dispute is pending before Federal Board of Revenue regarding issuance of receipts". Observation of the learned appellate court that beneficiary was not examined has no relevance to the trial for perjury as such beneficiary of receipt could be a witness in the matter and may not necessarily be an accused. It will certainly be decided as a result of trial once cognizance is taken in terms of Section 195, Cr.P.C. By the court before which the offence is committed. Court before which the purported perjury is committed may either try the offence itself or may send the case to the Court having jurisdiction in terms of section 476-A, Cr.P.C.
16. In view of the foregoing, impugned order dated 14-4-2011 passed by the learned II-Civil and Family Judge in Family Suit No,768/2009 dismissing an application under Section 193/468/220, P.P.C. And Order dated 23-12-2011 passed by the learned V Additional District Judge, Karachi (South) dated 23-12-2011 maintaining the above order, are set aside. Application under section 193/468/220, P.P.C. Stands granted. It is accordingly directed that the learned Trial Court may take cognizance of the offence, try itself and / or forward the same to the Court having jurisdiction in terms of Section 476-A Cr.P.C. In accordance with law.