' ABDUL LATIF KHAN, J.---Through this single judgment, I intend to dispose of R.F.A. No,84 of 2012 (Painda Khan v. Muhammad Bashir Khan), R.F.A. No,110 of 2012 (Muhammad Bashir v. Painda Khan) and Civil Revision No,423 of 2010 (Painda Khan v. Muhammad Bashir Khan) as all the three matters are between the same parties and relate to almost the same subject matter.
2. Brief facts are that plaintiff Painda Khan (hereinafter to be called as appellant) filed Suit No,2 of 2010 under Order XXXVII C.P.C. Against defendant Muhammad Bashir (hereinafter to be called as respondent) for return of qarz-e-hasna amounting to Rs,15,00,000 on the basis of pro-note dated 24-6-2010 with profit in accordance with bank rate. Respondent also filed a Suit No,2/2011, claiming Rs,15,00,000 on the basis of pro-note No,56 dated 24-6-2010.
3. Both the suits were contested by the parties by submitting their written statements. The learned trial Court framed issues in both the suits. The parties produced their respective evidence as they wished to adduce. The learned Additional District Judge-IV, D.I.Khan, after hearing the arguments of counsel for the parties, dismissed both the suits of the . Parties vide judgment and decree dated 18-6-2012, however, directed initiation of proceedings under section 476 Cr.P.C. Against the appellant, hence the instant appeals and civil revision.
4. Learned counsel for the appellant contended that respondent took the plea that pro-note is forged and fictitious, but later on filed a separate suit as counterblast to the suit of appellant and took a different plea, but trial Court has not properly adhered to the facts of the case. He contended that respondent was bound by the plea taken in the contents of application for leave to defend and cannot be allowed to deviate from the same and in case of clear deviation, has committed an offence punishable under section 476 Cr.P.C, but instead the appellant has been wrongly observed by the trial Court to be prosecuted under section 476 Cr.P.C, which is highly oppressive and not sustainable in accordance with law. He added that appellant has successfully proved the case to the effect that respondent had taken loan from him to the tune of Rs,15,00,000 as qarze-hasna and pro-note to this effect was reduced into writing. Evidence to this effect also produced, but strange enough that instead of decreeing the suit, initiation of criminal proceedings besides dismissal suit was ordered, which amounts to misreading and non-reading of evidence and warrants reversal of impugned judgment. It was further argued that compensatory cost of Rs,25,000 imposed is also not supported by any evidence and legal mandate and in this regard too, the trial Court had exercised the jurisdiction not vested in it and being illegal and without jurisdiction, the impugned judgment and decree is liable to be set aside. He added that stance of the respondent the pro-note scribed in his favour, on the decision of arbitration proceedings was rightly turned down by the trial Court as the same was based on contradictory pleas
5. As against that, learned counsel for the respondent argued that case of the appellant was based on false statement and due to this reason, initiation of proceedings under section 476 Cr.P.C. Along with special costs of Rs,25,000 was imposed against him. He added that case filed by the respondent was genuine and fair and was to be decreed but has been wrongly dismissed. He has filed a separate R.F.A. No,110 of 2012, which is to be accepted and the instant appeal be dismissed with costs. He referred to Civil Revision No,423 of 2010 filed by the appellant and argued that the same has become infructuous, is liable to be dismissed.
6. I have given my deep thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
7. Perusal of record reveals that appellant instituted a Suit No,2 of 2010 on 18-8-2010, under Order XXXVII, C.P.C., for recovery of Rs,15,00,000 on the basis of pro-note dated 24-6-2010 which was denied by the respondent. The respondent filed a separate suit for recovery of Rs,15,00,000 and contended that both the pronotes were taken as security by the arbitrators from the parties at the time of arbitration and no cash transaction took place between the parties. The evidence available on file suggests that both the parties executed pronotes to each other, a security, for the arbitration purposes. No cash payment is proved by producing oral or documentary evidence by either party.
The conduct of both the parties is not up to the mark and have taken different stances at different occasions, however, the same would not mean to impose such huge special costs of Rs,25,000 and to initiate proceedings under section 476 Cr.P.C, against one of the party i,e, the appellant. It would be appropriate to reproduce below section 476(1) Cr.P.C. To resolve controversy between the parties:-- "Procedure in cases mentioned in section 195.---(1) When any offences 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 trials in Chapter XXII."
' Clauses (b) and (c) of subsection (1) of section 195 Cr.P.C. Are reproduced below for ready reference:- "(b) of any offence punishable under any of the following sections of the same Code namely sections 193, 194, 195, 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
(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."
' The bare reading of section 476, Cr.P.C. Reveals that it is the discretion of Court to proceeding against the person who has made wrong claim in the contents of plaint. The circumstances of the case are to be seen. These provisions are directory and not mandatory in nature. The Court has to take extra care and caution to initiate proceedings. In the instant case, no plausible reasons given to initiate the proceedings. The vital importance is to be given to the fact as to whether probability of conviction can be expected and there are reasonable grounds for conviction and in case of refusal, no action can be initiated under the law. Cogent and strong evidence/proof is also required to initiate proceedings which is totally lacking in the instant case. It also gives an impression and message to the general public that in case of being unsuccessful in getting relief would be prosecuted if their claims are termed as false, though in fact mistakenly or inadvertently made. No cogent reasons given by the trial Court and has ordered the initiation of proceedings on presumptions and conjectures and therefore, are reversed.
8. So far as the imposition of special cost is concerned, the same also lacks support from the available record and legally, no such costs can be imposed without any rhyme or reason. It amounts to double jeopardy. The appellant has been burdened with it as well as, provisions of section 476, Cr.P.C. Are also attracted on account of same allegation, which is not warranted by law and to this extent, judgment and decree by learned Additional District Judge is hereby reversed.
9. Both the parties have failed to prove their cases, with special reference to money exchanged hands. Pro-notes are not proved as required under the law. Though presumption is attached to negotiable instruments and rebuttal has to be produced by the defence to deny the same, but even then the initial burden lies upon the plaintiff, which is lacking in both the cases. The findings of trial Court to this effect arrived at vide impugned consolidated judgment are not open to exception, hence maintained.
10. Civil Revision No,423 of 2010 was directed against order vide which application for leave to defend was allowed, during pendency of suit. As the main lis has been disposed of, the instant petition has become infructuous and dismissed as such.
11. For the reasons mentioned above, R.F.A. No,84 of 2012 is partially accepted and the findings of trial Court to the extent of imposition of special cost of Rs,25,000 and initiation of proceedings under section 476, Cr.P.C. Against the appellant are modified, as mentioned in paragraphs 7 and 8 of the judgment whereas R.F.A. No,110 of 2012 and Civil Revision No,423 of 2010 are hereby dismissed.