' Sher Adat Khan and Sher Ahmad Khan, have applied for the quashment of the order, dated 22-9- 1987 of the learned Sessions Judge, Bannu vide which accepting the revision petition of respondents 1 and 2 herein, he remanded the case to the Court of the Civil Judge, Bannu for disposal of the complaint filed by the respondents under section 419/420/468/471/34/109, P.P.C. In accordance with law which had earlier been dismissed as premature by the order dated 4-11987 of the Civil Judge, Bannu.
2. Facts leading to the instant litigation are that Sher Ahmad Khan petitioner allegedly purchased an area of 61 Kanals and 15 Marlas of land in village Hathi Khel, Bannu District from respondents 1 and 2 vide deed dated 228-1983. On the basis of the said deed the petitioner Sher Ahmad instituted a civil suit which was decreed in his favour after proceeding ex parte against Sahib Din and Mir Shaza Din respondents by the judgment and decree, dated 14-7-1986, of the Civil Judge, Bannu. On 20-9-1986, Sahib Din and Mir Shaza Din respondents filed an application under section 12(2), Cr.P.C.
For setting aside the aforesaid ex parte decree on the grounds that the ex parte decree was the result of fraud played upon the Court and that ex parte proceedings against them were the result of collusion between the plaintiff Sher Ahmad and the process serving agency. While the proceedings under section 12(2), Cr.P.C. Were yet pending adjudication, Sahib Din and Mir Shaza Din respondents also filed a complaint under section 419/420/468/471/34/109, P.P.C., against Sher Adat and Sher Ahmad Khan petitioners in the said Court of the Civil Judge, Bannu. The learned Civil Judge by his order dated 4-1-1987, while holding that he had the jurisdiction to adjudicate upon the complaint, in his view since the plaint on the basis of which the instant complaint had been filed was still pending, the complaint was thus premature and was accordingly dismissed. Aggrieved by the said order of the learned Civil Judge Sahib Din and Mir Shaza Din approached the Court of the learned Sessions Judge, Bannu in criminal revision petition for setting aside the aforesaid order of the learned lower Court and to adjudicate upon the complaint in accordance with law. The learned Sessions Judge, Bannu, by his order, dated 22-9-1987, accepted the revision petition, and setting aside the impugned order of the learned Civil Judge, remanded the case to the said Court for disposal of the same in accordance with law. Aggrieved by the said order of the learned Sessions Judge Sher Adat and Sher Ahmad have come to this Court for the redress of their grievance in exercise of its powers under section 561-A, Cr.P.C.
3. Arguments of S. Zafar Abbas Zaidi, learned counsel for the petitioners and Mr. Sanaullah Khan, Advocate on behalf of the respondents have been heard and record of the case has been thoroughly examined.
4. Firstly in this case it is to be determined whether the Civil Judge could dismiss the complaint in the manner he has acted in the instant matter. Complaint under section 4(1) of the Code of Criminal Procedure means the allegation made orally or in writing to a Magistrate, with a view to his taking action under the said Code, that some person whether known or unknown, has committed an offence but it does not include the report of the Police Officer. In the instant case Mir Sahib Din and Mir Shaza Din made a complaint to the Court in which allegedly by playing fraud upon the Court fraudulent decree had been obtained by Sher Ahmad Khan and Sher .Adat Khan and accordingly the trial Court was requested to proceed against the latter under section 419/420/468/471/34/109, P.P.C. Under section 203, Cr.P.C. The Court before whom a complaint is made or to whom it has been transferred or sent, may dismiss the complaint if after considering the statement on oath (if any) of the complainant and the result of the investigation or enquiry (if any) under section A 203, Cr.P.C. There is in his judgment no sufficient ground for proceeding. It is well-settled that the dismissal of the complaint without any enquiry report and Without giving the complainant reasonable opportunity to prove the allegation is not proper in law. It is also an established view of the superior Courts that if from the perusal of the contents of the complaint there are reasonable circumstances leading to the commission of certain offences there would be a prima facie case for proceeding. In such a case it becomes incumbent upon the Court to proceed against the persons accused in accordance with law. Even otherwise when a complaint is made to the Court having jurisdiction it can dismiss it only under section 203, Cr.P.C., which contemplates the consideration of the statement on oath of the complainant and the result of the investigation or enquiry, if any. No doubt the application under section 12(2), C.P.C. Was yet pending adjudication and the allegation of obtaining the decree allegedly by playing fraud upon the B Court was and is yet to be determined and proceeding with the complaint prior to the final verdict with regard to the alleged fraud played upon the Court, technically the Civil Judge, was correct in observing the process of the complaint as premature but where the legislature has framed a specific procedure to be adopted in a particular manner any deviation from that procedure renders the whole exercise as without jurisdiction, because it is through the Act of legislature which vests the Court with certain powers and the procedure for the due exercise of such powers. Thus, where the Civil Judge did have the powers to dismiss the complaint, he could do so only after fulfilling the prerequisite and the basic requirements of section 203, Cr.P.C. Which invested him with the powers to dismiss the complaint and not that he dismissed the complaint because, he had the powers to dismiss it, having least consideration for the procedure to be adopted for such dismissal.
The order of the Civil Judge dismissing the complaint without observing the procedure laid down in section 203, Cr.P.C., therefore, cannot be justified in law. The order of the learned Sessions Judge observing that no provision of law is available in the Criminal Procedure Code empowering the trial Court to dismiss or stay the complaint also cannot be maintained because under section 202, Cr.P.C. Any Court on receipt of a complaint of an offence of which it is authorized to take cognizance, may if it thinks fit, for reasons to be recorded, postpone the issue of process for compelling the attendance of the persons complained against and either enquire into the case itself or direct an enquiry or investigation to be made by any justice of peace, or by a Police Officer, or by such other person as it thinks fit, for the purposes of ascertaining the truth or falsehood of the complaint. The Civil Judge was already seized with the process of ascertaining the truth or falsehood of the allegation contained in the complaint as a Civil Court under section 12(2), C.P.C.
And thus he did have the powers to postpone the process of the complaint pending adjudication of the application under section 12(2), C.P.C. As I have observed earlier legally the Civil Judge ought not have dismissed the complaint without first observing the procedure contained in section 203, Cr.P.C. At the same time it cannot be agitated that the order of dismissal of the complaint as premature in any manner prevented the complainant of asking the Court to proceed against the accused at any subsequent stage, once they succeed in prima facie establishing the securing of the decree by playing fraud upon the Court of Civil Judge because it is a well-settled principle that dismissal of a complaint under section 203, Cr.P.C. When the accused are not at all in picture is a dismissal in limine and nowhere it amounts to mean that the allegations against the accused are false and for that the accused are either discharged or acquitted. In Muslim Miah v. Munsar Ali Haji and 6 other reported as 1969 P Cr. L J 849, it was observed:- "A dismissal of a complaint under section 203, Cr.P.C. Is a dismissal in limine. The accused is not at all in the picture at this stage. Such a dismissal does not mean that the allegations against the accused are false and for that the accused are entitled to a discharge or acquittal. The provisions of section 403, Cr.P.C. Are not attracted to such a case. No process having been issued against 'the accused and no trial having commenced on the complaint, section 403, Cr.P.C. Cannot apply nor debar the Court from taking cognizance of the case afresh. To bar a subsequent trial under section 403, Cr.P.C. There must be a previous proceeding and discharge or a previous trial and acquittal of the accused. If section 403, Cr.P.C. Does not apply, there is no reason why the fresh complaint will not be competent after the dismissal of the first one. Thus, in the given facts and circumstances of the case a second complaint was entertainable on the self-same facts."
In this case as well neither any process had been issued to the accused nor were the accused tried for the charge levelled against them. The learned Civil Judge, it so appears, to avoid error of opinion dismissed the complaint as premature pending final adjudication on the application under section 12(2), C.P.C. The dismissal of the complaint though against the prescribed procedure, in no manner creates a bar for the complainants to file afresh complaint against the persons charged for proceeding against them after they established the fraud having been ( played upon the Court and the provisions of section 403, Cr.P.C. Cannot be attracted in such like matters so as to create apprehension in the mind of the complainant to challenge the order of dismissal of the complaint as premature in a revision before the Sessions Judge. The order of the Civil Judge dismissing the complaint, though defective in the eyes of law has nowhere resulted in some undeserved hardship or gross miscarriage of justice. In Khadiin Hussain Khan v. The State reported as PLD 1982 SC (AJ&K) 13 it was held that:- "It is settled that provisional jurisdiction could be exercised by the High Court only in exceptional cases where the interest of public justice requires interference for the correction of manifest illegality or the prevention of gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower Courts have taken a wrong view of the law or misappreciated the evidence on record."
As I have earlier observed though the learned Civil Judge by misinterpretation of the law committed error in dismissing the complaint without performing the requirement of section 203, Cr.P.C. Still no miscarriage of justice has occurred because the complainants have the ample discretion to file a fresh complaint on the same facts and under the same section of law if they are in a position to prima facie make out a case against the accused-petitioners.
5. From what has been stated above one thing becomes clear that when a complaint is filed in a Court 'having jurisdiction to proceed, before it can be dismissed the procedure provided in section 203, Cr.P.C. Is to be strictly observed and in no case the complaint can he dismissed without recording the statement of the complainant. Even otherwise in view of the situation in the instant matter it would have been advisable for the Civil Judge to have dispensed with the proceeding of the complaint pending final adjudication of the application under section 12(2), C.P.C. And if the complainants could establish the securing of the decree by fraudillent means cognizance of the complaint should have been taken and action against the accused initiated.
6. The second question, the most crucial and important one, that involves consideration is whether the complaint could be filed in the Court of the Civil Judge as a Magistrate First Class whose territorial jurisdiction has not been notified pursuant to the requirements of. Section 12(1), Cr.P.C.
Under section 12(2) Cr.P.C. The jurisdiction and powers of a First Class Magistrate extend throughout the District unless the local areas within which such a Magistrate may exercise all or any powers with which he is invested are duly notified by the Provincial Government or the District Magistrate under section 12(1), Cr.P.C. The Civil Judge of the First Class by virtue of his office stands invested with First Class Magistrate powers and since the local areas within which he could exercise such powers have not been duly notified, in the ordinary course entertainment of the complaint can by no stretch of imagination be called as without jurisdiction. At the same time it cannot be disputed that the cause of action arose to the complaints as a result of the alleged fraudulent decree obtained from the Court of the said Civil Judge. It is also not a matter of controversy that a proper procedure to get the said alleged fraudulent decree set aside has been adopted by filing an application under section 12(2), C.P.C. It also stands established that the guilt or innocence of the accused-petitioners would much depend upon the conclusions of the Court while adjudicating upon the application under section 12(2), C.P.C. Whether the decree obtained was the result of fraud played upon the Court or otherwise. In much a situation it would not be advisable for the said Court to on one hand ascertain and conclude the role played by the accused-petitioners in getting a decree by playing fraud upon the Court and on the other hand by entertaining the complaint under section 201, Cr.P.C. Try the accused-petitioners with the offences as alleged. It is well-settled principle of law that one cannot be the prosecutor and at the same time a Judge in the same cause. The only section of law which empowers a Court to be the prosecutor and the Judge in the same cause in section 476, Cr.P.C. Which provides that when an offence referred to in section 195 sub-clause (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 procedure prescribed for summary trial in Chapter XXII. The sections of law with which the Court can proceed summarily under section 476, Cr.P.C. As enumerated in section 105(1)(11) and (c), Cr.P.C. Are sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211, 228, 463, 471, 475 and 476, P.P.C. The instant complaint is filed under section 419/420/468/471, P.P.C. Thus except for section 471, P.P.C. The accused petitioners cannot be tried for the offences under sections 419/420/468, P.P.C. Under the procedure provided under section 476, Cr.P.C.
Because under the latter section of law a Court is entitled to try only offences under clauses (b) and (c) of section 195, Cr.P.C. And not those falling under clause (a) of that section. Moreover, under section 476, Cr.P.C. It is the Court which in a way is the complainant and although in the ordinary course the complainant himself cannot become the Judge as well to decide the matter but section 476, Cr.P.C. Empowers the very Court to try the offence in a summary manner. If, however, the Court is of the view that offences other than those mentioned in clauses (b) and (c) of section 195, Cr.P.C.
Have been committed he is at liberty to forward the case to another Court having jurisdiction to try the same and in that matter it is open to the said Court to include other offences which form part of the same transaction.
' In Muhammad Ehsan v. The State reported as PLD 1968 Lah. 451 it was observed that:- "A complaint under section 476 of the Criminal Procedure Code, 1898 is not rendered invalid on the ground that an offence alleged in the complaint against the accused was not one of the offences mentioned in section 195, Cr.P.C. Section 476 of the Code is merely an enabling section and does not debar a Court from including in its complaint other sections of the Penal Code not mentioned in section 195, Cr.P.C. The provisions contained in section 195, Cr.P.C. Are only by way of an exception to the general provision contained in section 190, Cr.P.C. And as such the machinery of law could be set in motion by anybody including the Civil Judge for the commission of any offence including all those not covered by clause (c) of subsection (1) of section 195, Cr.P.C."
' No doubt a Court is competent to proceed with the offences provided in clauses (b) and (c) of subsection (1) to section 195, Cr.P.C. Relating to its Court but at the same time it also cannot be disputed that such a Court can proceed against the accused with the offences mentioned in the said clauses and cannot travel beyond the same. Besides action in such a situation is taken by the Court itself suo motu and not upon complaint. The Court is duty bound to consider why the person who has committed forgery or perjury should not be prosecuted and if there appear reasonable grounds why such person should not be prosecuted and such a Court is expected and is supposed to take prompt and adequate action so as to avoid an impression that any one can divert or abuse the process of law by falsehood or fabrication and still run no risk of coming to harm. If, however, the Court slacks itself in prosecuting an action as provided in section 476, Cr.P.C. a private person or the person affected can also make an application to such Court to initiate proceedings. One thing is, however, clear that under section 476, Cr.P.C. The Court itsel is the complainant and at the same time empowered to try the case and punish the culprits in a summary manner. It is also clear, that it is the Court and the Court alone in which forgery or perjury is committed to proceed against culprits under section 476, Cr.P.C. Under section 476-A, Cr.P.C. If the Court considers the matter to be adjudicated upon by some other Court of competent jurisdiction it may refer the case to that Court. In that situation it may also add the sections of law which in its view the culprits have committed and which are not covered by clauses (b) and (c) of subsection (1) of section 195, Cr.P.C.
7. Keeping in view all these factors it stands established that complaint under section 201, Cr.P.C.
Cannot be made to the same Court in which the alleged offences have been committed because as observed earlier one is not supposed to be the prosecutor and at the same time the Judge in the same cause. However, the Court may take cognizance of the matter if it finds that perjury or forgery has been committed in his Court either suo motu or on the application of a private person or an aggrieved person under section 476, Cr.P.C. But in that ease it would not be treated as a complaint because in such a situation the Court itself is the complainant. Since in this case complaint was filed in the Court from which a fraudulent decree had been obtained by playing fraud upon the Court, it would be presumed that the Court was to proceed under the powers vested in it under section 476, Cr.P.C. And thus the complaint filed m that Court would be deemed to be an application and not stricto senso a complaint. In that respect if the Court dismissed that application as premature I do'nt think he acted in contravention of the provisions of section 203, Cr.P.C. Because the provisions of section 203, Cr.P.C. Can be attracted only in a complaint under section 201, Cr.P.C. And not an application under section 476, Cr.P.C. Since, however, the Civil Judge used the word complaint, therefore, his order cannot be maintained because a complaint cannot be dismissed without fulfilling the requirements of section 203, Cr.P.C.
8. In the light of what has been elaborated above I am firm in my view that the Civil Judge while dismissing the application as premature acted quite within his competency with the only exception that the order of the Civil Judge dismissing the complaint as premature should be read as dismissing the application as premature. At a subsequent stage, however, if the Court comes to the exclusion that the alleged decree has been obtained as a result of fraud played upon the Court, the Court must proceed against the culprits suo motu under section 476, Cr.P.C. Or may send a complaint to the Court of competent jurisdiction under section 476-A, Cr.P.C. The complainants are also at liberty to file a complaint in the Court of competent jurisdiction once it is prima facie established that the decree had been obtained through fraud. This application is disposed of accordingly.