1. Petitioners above-named have filed the above petition, under section 561-A, Cr. P. C. For quashment of criminal complaint, Case No. 427;81 filed against them in the Court of District Judge, Karachi, under section 170/177/464/468/ 474, P. P. C., which is now pending in the Court of VIIIth Additional District Judge, Karachi, on the facts and grounds mentioned in the above petition.
2. The main ground, on which the above petition has been filed by the petitioners, which was urged before me by the learned Advocate for the petitioners was, that the complaint in question filed by respondent No. 2, on the basis of which the petitioners have been challaned by police is not maintain--able, in view of the provisions of section 195 (c), Cr. P. C. As the complaint in question was not filed by a competent officer as required by the said section. The learned Advocate for the petitioners further submitted, that the cognizance of the said complaint has been taken by the learned Court in question in respect of the offences which are covered under section 195 (c), Cr. P.
3. C. And as such the said complaint could only have been filed by complainant in writing of the Court, mentioned in sectioned 195 (c), Cr. P. C. Which was not done so and consequently the assumption of the jurisdiction by the learned trial Court is without lawful authority. In addition to this the learned Advocate for the petitioners further submitted, that this Court cannot go beyond the complaint filed in Court and ought not :o take into consideration the statements recorded in support of such complaint, under section 561-A, Cr. P. C.
4. The learned Advocate appearing for respondent No. 2 on the other hand submitted, that the complaint is basically under the provisions of section 464, P. P. C. And as such punishable under section 471, P. P. C., in respect of a document which was neither produced or given in evidence, in any proceedings before a Court and consequently the provisions of section 195 (c), Cr. P. C. Are not at all attracted and, therefore, the cognizance taken by the learned trial Court, on the complaint in question was within the jurisdiction of the learned trial Court and since the complaint prima facie discloses an offence mentioned therein, this is not a fit case for quashment of the proceedings at this stage, specially when the S. D. M. In question has denied, that he had given any authority to the petitioners to issue notices on his behalf under section 130, M. L. O. In support of this contention the learned Advocate for the respondent No. 2 relied upon case reported in PLD 1967 SC 354.
5. The learned Additional Advocate-General appearing for the State sub--mitted, that the provisions of section 195 (c), Cr. P. C. Were not at all attrac--ted to the complaint in question, as the document in question was neither produced or given in evidence before any Court and as such the jurisdiction assumed by the learned trial Court was lawful. The learned Additional Advocate- General further submitted, that the powers of this Court under section 561-A, Cr. P. C. Were wide enough and this Court could look into complaint as well as the statements recorded in support of said complaint and there was no bar to such procedure.
6. I have carefully considered the above submissions made by the learned Advocates before and have gone through the copy of the complaint, which has been filed with the above petition as well as annexure attached with the above petition. The learned Advocate for the petitioners was unable to point out any document by which the S. D. M. In question had given permission to the Firdous Co-operative Housing Society Limited to issue notices under M. L. O. 130 to respondent No. 2. I have also seen the notice issued to respondent No. 2, which clearly shows that the same was signed by Raza Husain, Secretary Firdous Co-operative Housing Society Limited for and on behalf of the S. D.
7. M. In question, which gives an impression, that it was done so with the consent of the S. D. M. In question and/or under his authority. The learned Advocate for the petitioners was unable to point out any such consent and/or authority in writing of the S. D. M. In question and as such prima facie offence under section 464, P. P. C. Is disclosed by the complaint in question. Furthermore the notice in question was given to the respondent No. 2 for his ejectment and the said notice was neither produced nor used in, evidence in any proceedings pending in any competent Court and consequently I agree with the contentions of the learned Advocate for the respondent No. 2 and Addl. Advocate-General, that the provisions of section 195 (c), Cr. P. C. Are not attracted to such complaint and conse--quently the assumption of the jurisdiction by the learned trial Court, on the basis of the F. I. R. In question was not prima facie without lawful authority. Before arriving at this conclusion, I have taken into consideration Indian Cases, which were cited by the learned Advocate for the petitioners namely 33 Cr. L J 452; I L R 60 Bom. 756 and I L R 33 All. 804 ; when I heard further arguments on account of application dated 3-3-1983 moved by the learned Advocate for the Petitioners. The ratio of the Indian cases cited by the learned Advocate for the petitioners is that time for preparation of document envisaged by section 464, P. P. C. Is not material.. The only material point which would attract the provisions of section 195 (c), Cr. P. C. Is that if such document was later on produced before the Court, as contemplated by section 195(c), Cr. P. C. In some proceed--ings, the provision of section 195 (c), Cr. P. C. Would be attracted. There can be no two opinions about such proposition, provided there is eviden on record to show, that such document was produced in fact before such Court at any time, before filing of complaint in question. In the present case there is nothing on record to show, that the notice in question was produced before any Court, prior to filing of the complaint in question and consequently the Provisions of section 195 (c), Cr. P. C. In my opinion are not even prima facie attracted, to the filing of the complaint in question. However, if during the course of the proceedings, any such evidence is produced by the petitioners, it will be open to the learned trial Court to re--consider the question regarding applicability of the provisions of section 195(c), Cr. P. C. To the complaint in question.
8. The last contention raised by the learned Advocate for the petitioners before me in the course of additional arguments was, that under section 66-B of the Co-operative Societies Act, R/W section 21 of the P. P. C. The peti--tioners are Public Servant and consequently the complaint in question could have only been filed before the Special Judge Karachi on account of P. Cr. L. Amendment Act, 1958, as offence under section 464, P. P. C. Is a scheduled offence under section 5 of P. Cr. L.
9. Amendment Act, 1958 and as such exclusively triable by Special Judge, and as such the learned trial Court has wrongly assumed the jurisdiction, which was not vested in it. In support of this contention the learned Advocate for the petitioners relied upon unreported case of this Court, in respect of Criminal Miscellaneous Application No. 608/79 of my brother Zahoorul Haq, J., as then as he was.
10. The learned Advocate for the respondent No. 2 in reply to the last contention of the learned Advocate for the petitioners submitted, that sec--tion 65-B, Co-operative Societies Act was incorporated vide the Co-operative (Second Amendment) Ordinance, 1966 (West Pakistan Ordinance No. XVII of 1966) w. e. f. 27-4-1966, but this amendment in the Co-operative Societies Act, 1925 was repealed by West Pakistan repealing Ordinance, 1970 (Ordi--nance XV-111 of 1970) and as such was not in existence at the time when the complaint in question was filed. The learned Counsel submitted, that this aspect was not brought to the notice of my brother Zahoorul Haq, J., when he disposed of Criminal Miscellaneous Application. No. 608/79, vide his Order dated 1-9-1979.
11. In view of this the learned Advocate for respondent No. 2 submitted, that the learned trial Court has rightly assumed jurisdiction on the complaint filed by the respondent No: 2.
12. I have carefully considered the above submissions made by the learned Advocates before me, on the last point raised by the learned Advocate for the petitioners. I find no force in the contentions urged by the learned Advocate for the respondent No. 2, that section 65-B of Co-operative Societies Act, 1925 stood repealed on account of repeal of Co-operative (Second Amend--ment Ordinance, 1966) by Ordinance XVIII of 1970. The cases cited by the learned Advocate for the petitioners fully supports his contention, that section 65-B of Co-operative Societies Act, 1925 continues to be on statute, as it was saved by the repealed Ordinance No. XVIII of 1970.
13. Admittedly the offence alleged to have been committed by the applicants, was committed by them, when they were acting as a public servants, as the officers of the Society and as such the case in question against the present applicants could have only been filed before the Special Judge, in view of C the provisions of section 5 (1) read with. (b) Part of the schedule of the Cr. Law Amendment Act, 1958. In view of this, the jurisdiction assumed by the learned trial Court in the case in question, was not vested in the learned trial Court.
14. Therefore, I allow the above petition and quash the proceedings pending against this present applicants in the shape of Case No. 427/81, in the Court of V111th Additional District Judge, Karachi, as the jurisdiction for trial of) the present applicants does not vest in the said court, in view of what has been stated hereinabove by me. However, it would be open to the prosecu--tion to take the case against the present applicants before competent Court, in case they desire to do so.