' The material facts culminating in this application filed under section 561-A, Cr.P.C. Briefly, are that applicant Zahid Hussain was a tenant of respondent No,9, in respect of premises bearing No,3/50, Liaquatabad, Karachi, which was got vacated by respondent No,9, in terms of order of this Court passed in F.R.A. No,431 of 1985. It is alleged that respondent No,9 entered into a sale agreement with respondent No,3, in respect of this premises, but subsequently backed out, with the result that respondent No,3 filed a suit against respondent No,9, for declaration, specific performance of contract, possession and injunction. The respondent No,9 contested this suit and alleged therein that the sale agreement and the receipts produced by respondent No,3 were forged documents.
On 23-9-1986, the respondent No,9 filed a complaint against applicant and respondents Nos.2 to 8 in the Court of A.C.M. XI (West) Karachi, for the offence under section 419/420/471/474/467/109, P.P.C. Which was sent to S.H.O. Liaquatabad Police Station for an action under section 156(3), Cr.P.C.
Accordingly a case being Crime No,595 of 1986 was registered as Police Station Liquatabad. After usual investigation the applicant and respondents Nos.2 to 8 were sent up to stand trial for the said offence. It is in these circumstances that the applicant has approached this Court for abashment of proceedings pending against him and respondents Nos.2 to 8 before Sessions Judge (Central)
Karachi, as according to him the cognizance in the said manner is barred under section 195(1)(c), Cr.P.C.
2. I have heard learned counsel for the parties. Mr. Gul Zaman Khan, learned counsel for respondent No,9, has taken a preliminary objection about the maintainability of this application filed under section 561-A, Cr.P.C. On the ground that the applicant who had a remedy before the trial Court under section 265-K, Cr.P.C. Did not avail the same and consequently this application was liable to be dismissed on this score alone. Reliance is placed upon the following authorities:-
(i) A. Rahim Zubairi and another v. Nizamuddin and 5 others 1983 P Cr. L J 467).
(ii) Lal and 2 others v. The State 1986 MLD 1190.
(iii) Muhammad Shafiq and 2 others v. Merajuddin and another 1987 MLD 1518:
(iv) Haji Allahditto and 5 others v. The State and another 1987 MLD 1561.
3. The answer to this objection is furnished by the Supreme Court in the case of Mian Munir Ahmad v. The State, reported in 1985 SCM R 257, wherein following observations were made:- "The powers of the trial Court under section 249-A, Cr.P.C. And section 265-K, Cr.P.C. Are co- extensive with the similar powers of the High Court under section 561-A, Cr.P.C. And both can be resorted to. It would of course be proper to approach the trial Court in the first instance, but there is nothing to bar the High Court from entertaining in any appropriate case, an application under section 561-A, Cr.P.C. Directly."
4. On merits the applicant has got no case. Section 195(1)(c), Cr.P.C. Which is relevant to the point in issue reads as follows:- "195(1). No Court shall take cognizance .
(a) ...................................................................
(b) ...................................................................
(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."
5. The object of this provision of law is to prevent improper or reckless prosecutions by private persons for offences in connection with the administration of justice. To attract the applicability of clause (c), the fulfilment of following requirements is necessary:-
(i) That the offence is alleged to have been committed by a party to any proceeding in any Court.
(ii) That the offence is committed in respect of a document produced or given in evidence.
(iii) That the said offence falls Under section 463 or 471 or 475 or 476, P.P.C.
It is, however, essential that all these conditions should be satisfied before invoking the provisions of section 195(1)(c), Cr.P.C.
6. Admittedly only copies of the disputed documents are placed on record. Clause (c) refers to a document produced or given in evidence, it does not say whether original or copy of the document should be produced or given in evidence. This question was, however, examined by the Supreme Court in Criminal Petition No,48-K of 1984 (Abdul Sattar and another v. The State and another) decided on 3rd March, 1985, and it was held:- "Section 195(1)(c), however, contemplates the producing or giving in evidence of the original document and not a copy thereof. Abdul Sattar in his suit had stated in the plaint that ".... The plaintiff purchased the same from the defendant, the plaintiff files the copy of the agreement of sale and marks the same Annexure Since what was produced was only a copy and not the original documents, the preconditions to the applicability of the bar under section 195(1)(c), Cr.P.C. Cannot be said to have been met."
7. In arriving at the above finding the Supreme Court followed the case of Sanumukhsing v. King, reported in PLD 1949 P.C.
207. The relevant observations of their Lordships of the Privy Council are as under:- "For upon a further examination of them it is clear that the documents in question were not in fact produced or given in evidence in the Lahore Court, but on the contrary there were produced in that Court documents which purported to be copies (but without the names of the executants) of the documents alleged to be forged. In these circumstances their Lordships think it plain that section 195(1)(c) cannot operate as bar."
8. In view of the above weighty observations of the Supreme Court, the following cases cited on behalf of applicant are not relevant:
(i) Muhammad Ehsan v. The State PLD 1968 Lah.
451.
(ii) The State v. S. Ali Hasan and another PLD 1974 Kar.
403.
(iii) Qaim Din and 3 others v. The State and another 1977 P Cr. L J 465.
(iv) Mst. Aisha Bai v. The State and another 1981 P Cr. L J 338.
(v) Nusrat Hussain and 2 othcrs v. The State 1988 P Cr. L J 1218.
9. In the result the application filed under section 561-A, Cr.P.C. Fails and is dismissed accordingly.