AALIA NEELUM , J. The petitioner, through instant application made under Section 476 of the Code of Criminal Procedure, filed a complaint against the respondents Nos. 2 to 5, for their prosecution under Sections 194 and 195 read with 476 of the Cr.P.C. directly by this court.
2. The brief facts, leading up to the present application, are that the respondents Nos. 1 to 3 filed pre-arrest bail petition i.e. Crl. Misc. No. 44970/ 2021, in this court. In that petition, the respondents Nos. 1 to 3 took plea that they had paid off entire amount to the petitioner in the presence of arbitrator and placed on the record the compromise deed dated 07-02-2020 as Annexure "B" and same was signed by the arbitrator. Whereas, the compromise deed dated 07.02.2020 appended with the pre-arrest bail petition filed before learned ASJ was not signed by the arbitrator. During the proceedings of pre-arrest bail petition i.e. Crl. Misc. No. 44970/2021 filed by the respondents Nos. 1 to 3, the arbitrator appeared before the court and on the court query, the arbitrator, admitted that he did not signed the compromise deed dated 07.02.2020 annexed as "Annexure B" with the petition supra. The petitioner annexed compromise deed as annexure "A" filed with pre-arrest bail petition before learned ASJ, Lahore and the compromise deed dated 07.02.2020 annexed with pre-arrest bail petition i.e. Crl. Misc. No. 44970/2021 as Annexure "B". The pre arrest bail petition i.e. Crl. Misc. No. 44970/2021 was withdrawn by the respondents Nos. 1 to 3 after arguing the case at length on 25.10.2021.
3. It may be noted here that the disputed compromise deed dated 07.02.2020 "Annexure B", although filed by the respondents Nos. 1 o 3, with the pre-arrest bail petition before this court for being used in proceedings by them, was not actually used by them, and, therefore, it was not marked in the proceedings.
3. The petitioner filed instant petition, under Section 476 of Code of Criminal Procedure, for taking cognizance directly and trying the respondents/ accused.
4. In order to decide the question, whether the mere filing of a document is enough to bring a person within the mischief of Section 471 of the Penal Code, it is necessary to read Section 471, which runs thus: "471. Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged document."
6. The essential Ingredients of this Section, therefore, are (i) fraudulent or dishonest use of a document as genuine, and, (ii) knowledge or reasonable belief on the Part of the person using the document that it is a forged one.
7. A person bringing into existence a document, bearing a certain date, but brought into existence on a later date, by antedating it, or having forged signatures or thumb impressions of the executants of the documents or having `different contents from the admitted document is guilty of the offence of forgery under Section 465 of the Penal Code.
8. In the instant case, the fact that the both compromise deeds contain similar contents, and only difference is of the signature and thumb mark of one of the witness (name not known) of the document. The name of the witness who put his thumb mark and signed the compromise deed is not mentioned therein nor CNIC number was mentioned. Even the learned counsel for the petitioner was unable to state the ;lame of the person who signed or thumb marked the above said document as witness. The respondents Nos.1 to 3 do not mention the name of the person, who has signed and thumb marked the alleged document. In such situation first of all name of the witness who put up his signature and thumb mark is required to be mentioned by the tine party. Thereafter if said witness denied his signatures and thumb mark, the burden to prove that, document would lies on the party, who produced it. The execution and contents of the compromise deed "Annexure B" have not been denied by the petitioner. In absence of the name of the witness who signed and thumb marked the compromise deed, ex facie, showed that it was not a forged document within the meaning of Section 471 read with Sections 463 and 470 of the Penal Code. Section 471 of the Penal Code applies not only in cases where the document has been given in evidence, but also in cases where it has been produced, and, that the ambit of the word 'produced' is very wide, including documents filed or presented, but either rejected or not taken into account by the Court.
9. In the instant case, the name of the arbitrator is not known nor from order dated 25.10.2021 it reveals learned counsel for the complainant (petitioner) appeared before court along with "arbitrator". The difference between both documents was signature of witness (name not known) on the second page of compromise deed and certainly there was absolutely nothing to show that the arbitrator was present before this court, therefore, there was nothing to show that he had knowledge of the fact that it was not a genuine document. Therefore, an offence under Section 471, P.P.C. had not been made out, and, that, at any rate, there was no reasonable chance of their conviction. In other words, this court found that a prima facie case had not been made out upon the material before this court for inquiring further into the question whether the offence alleged has or has not been committed.
10. The Court, before setting the criminal law in motion, should exercise great care and caution and it must be satisfied that there is reasonable foundation for the charge in respect of which the prosecution is directed, and, no prosecution ought to be directed unless there is a reasonable probability of conviction. The words, "appears to have been committed", in Section 476, Code of Criminal Procedure, also show that the intention of the Legislature is that there must be sufficient materials before the Court to show that an offence is likely to have been committed. Where there is no legal evidence which goes to show that there is reason to believe that an offence has been committed and where it is obvious that the prosecution is bound to end in a failure a complaint ought not to be preferred. There is no material to show that arbitrator appeared before this court nor name of arbitrator was mentioned in the instant petition.
11. On a consideration of all the facts and circumstances of the case, no prima facie case had been made out and that it was not expedient in the interest of justice that a complaint could be made. In the result, the application fails, and is dismissed.