This criminal revision application arises out of an order, dated 11-4-1992 passed by learned IIIrd Additional Sessions Judge, Hyderabad dismissing a direct complaint in Case No.120 of 1991 filed by the applicant against respondents Nos. 2 to 4 alleging commission of offence under sections 465, 467, 468, 471 and 474, P.P.C. r ad with section 34, P.P.C.
2. Briefly stated the case of the applicant is that he alongwith other legal heirs inherited Bungalow No.C/58, Phase II, Qasimabad measuring 900 Sq. Yards after the death of his father on 23-10-1985.
Possession of the Bungalow was received by them from the Builders after payment of all dues in May, 1987 whereafter he alongwith his mother, three sisters and three brothers temporarily occupied the same. It is further his case that the bungalow was rented out to respondent No.2 on a monthly rental of Rs.1,000 with effect from 1-11-1988 for eleven months who paid Rs.8,500 by way of advance/security deposit and executed an agreement of tenancy on 12-11-1988. Respondent, however, failed to pay rent from August, 1989 with the result that applicant filed ejectment proceedings being Rent Application No.157 of 1990 before the Rent Controller on the ground of default and personal bona fide need which was dismissed on 28-11-1993 for want of relationship of landlord and tenant between the parties. F.RA. 13 of 1993 against the said order is stated to be pending before this Court. In his objections before the Controller respondent No.2 pleaded that the applicant had agreed to sell the Bungalow to him for a consideration of Rs.1,20,tW. It was further asserted that on 9-7-1990 an agreement of sale was executed between the parties in presence of witnesses when the applicant received an amount of 11s.40,000 from him as part payment of total consideration. On the next day the agreement was got attested by the Additional City Magistrate at Hyderabad and respondent No.2 was put into possession of the Bungalow as prospective purchaser. Claiming that applicant had never approached respondent No.2 and not offered to sell the Bungalow to him and denying the execution of agreement of sale or receipt of part payment, applicant filed a private complaint against the respondents on the averments that his signature on the agreement of sale was forged. He further pleaded that from 7-7-1990 to 30-7-1990 he was not available at Hyderabad and was on duty at village Doulat Khan Bagrani'District Badin as he has been working as Line--man Grade-I in WAPDA.
3. This complaint was transferred to the IIIrd Additional Sessions Judge. Hyderabad who after recording statement of the applicant under section 200; Cr.P.C. And examining Abdul Qayoom, Additional City Magistrate, Asad Ali Hashmi, Advocate and Muhammad Ali a WAPDA employee, during preliminary enquiry held that the complaint disclosed a dispute of civil nature between the parties and there was no positive prima facie evidence on record to connect the respondents with the alleged offence. Consequently he dismissed the complaint by order, dated 11-4-1992 which has been impugned in this revision application.
4. It may be observed here that during the pendency of ejectment proceedings respondent No.2 filed First Class Suit No.220 of 1990 against the applicant in the Court of IInd Senior Civil Judge, Hyderabad on 6-10-1990 for spec performance of contract and permanent injunction which is being contested by the applicant and is now ripe for recording evidence.
5. I have heard learned counsel for the parties as well as Assistant Advocate-General for the State.
6. Learned counsel appearing for the applicant in support of this application has raised the following contentions:
(i) That the learned Additional Sessions Judge did not consider the evidence adduced during the course of preliminary enquiry and disposed of the complaint without applying his judicial mind to the facts of the case;
(ii) that by denying execution of agreement of sale and the receipt of part consideration applicant had succeeded in prima facie establishing commission of offence alleged in the complaint;
(iii) that pendency of civil litigation between the parties is no bar to the maintainability of a criminal case as the respondents cannot be absolved of their liability under the criminal law.
7. On the other hand Mr. Faiz Muhammad Qureshi learned counsel for respondents Nos.2 to 4 has submitted that the dispute between the parties being purely of civil nature criminal proceedings were launched with a view to pressurise respondent No.2 to withdraw the suit and to yield unreasonable demand of the applicant. He further urged that filing of the private complaint after a lapse of more than one year was fatal to the case of the applicant which ground alone was sufficient to dismiss the complaint on the face of it. Lastly learned counsel contended that prosecution of the respondents is barred by the provisions contained in clause (c) of subsection (1) of section 195, Cr.P.C.
8. Adverting to the first submission of the learned counsel Additional Sessions Judge has considered the evidence recorded by him during the preliminary- enquiry and arrived at a conclusion that the dispute between the parties was of a civil nature; that there was no prima facie evidence on record to connect the respondents with the commission of the \alleged crime and in fact no criminal liability was made out. In the face of the conclusions arrived at by the lower Court it would not be cbrrect to say that learned lower Court did not consider the evidence adduced before him or that he did not apply his judicial mind to the facts of the case. Learned counsel for the applicant cited the following cases in support of his contentions:
(i) Wahid Bux v. The State 1989 M LD 2799,
(ii) Anwer Ali Khan and others v. Wahid Bux and others 1991 SCM R 1608,
(iii) Lt.-Col. (Rtd.) G.M. Nizamuddin v. Irshad Hussain and another PLD 1976 Kar. 653,
(iv) Muhammad Ajmal v. Ghulam Baseer 1988 PCr.LJ 1130,
(v) Muhammad Ishaq Bandhani v. The State and 3 others 1994 PCr.LJ 1752.
9. In the case of Wahid Bux a Division Bench of this Court set aside the order leading to dismissal of a complaint on the view that learned lower Court had not fully appreciated the version disclosed in the counter-complaint.
Case at Serial No.2 arose from the judgment in the case of Wahid Bux which was upheld by the Honourable Supreme Court. It was observed in this case that there is a marked distinction as to the approach of appraisal of evidence at the time of holding of a preliminary enquiry and at the regular hearing of a criminal case. At the former stage, the Magistrate or the Court is not expected to examine the evidence or the case minutely, whereas at the later stage, the Magistrate or the Court is required to appraise the evidence thoroughly and to record its findings on the basis of such appraisal, and that any benefit of doubt arising out of such appraisal, should be given to the accused person. At page 1619 of the report their Lordships referred to the judgment reported in PLD 1976 Kar. 653 in which Abdul Hayee Qureshi, J. (as he then was) took the view that it would be open to the Magistrate to look at the broad features of the evidence and even the same may make the case doubtful or unbelievable. Powers of the Magistrate under section 203, Cr.P.C. Are not designed to clothe him with powers of such deep appreciation of evidence as is required at the time of final judgment. But, surely, it cannot be said that the Magistrate should form a judgment in regard to grounds for proceedings with complaint without applying his mind at least to the broad features and aspects of a particular case. To take any other view would render the provisions of section 202, Cr.P.C. Virtually meaningless for in that case in any type of complaint which is filed before a Magistrate process has to follow automatically.
In the case at Serial No.4 a learned Single Judge of the Lahore High Court took the view that dismissal of complaint without considering evidence on merit and giving finding on the assumption that complaint was filed to put up a defence in cross-case was misconceived and not based on well-considered view of the matter.
In the case at Serial No.5 a learned Single Judge of this Court held that trial Court has to exercise its discretion under section 202, Cr.P.C. Judicially and not in an arbitrary or fanciful manner.
10. There is no cavil with the proposition of law laid down in the reported cases. It seems that the spirit underlying the provisions of sections 202 and 203, Cr.P.C. Is that a Court taking cognizance of a complaint ought to consider A prima facie the merits of the ex parte evidence recorded during preliminary enquiry in a rational manner and on sound judicial principles before the issuance of process or arriving at a conclusion that there is no sufficient ground to proceed with the complaint.
In latter case the Court is required to briefly record his reasons for so doing. Conversely if in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding it shall issue summons or warrant for the attendance of the accused. In the present case it is obvious that learned trial Court did not ignore altogether the value of the evidence adduced before him and he recorded valid reasons for dismissal of the complaint to which no exception can be taken for the sole reason that learned lower Court did not record an elaborate and comprehensive order for dismissal of the complaint.
11. Dealing with the second submission advanced on behalf of the applicant it is difficult to subscribe to the view of the learned counsel in the peculiar circumstances of this case. It is admitted that the applicant had rented out the Bungalow to respondent No.2 and on latter's failure to pay rent, ejectment proceedings were filed against him wherein he raised a plea that the applicant had entered into an agreement of sale with him which was duly attested by two witnesses and a Magistrate. It is also not disputed that the suit for specific performance of contract and permanent injunction filed by respondent No.2 against the applicant is pending before the Court of competent jurisdiction. Whether the applicant actually entered into a contract of sale in respect of the Bungalow with respondent No.2 for a valuable consideration and received part consideration would be a question for decision by the Civil Court and simply because the applicant denied the execution of agreement of sale would not by itself be sufficient to warrant a prima facie relief that the respondent No.2 in collusion with respondents Nos3 and 4 committed forgery for the purpose of cheating or that he used as genuine a forged document knowingly or having reason to believe it to be a forged document. Learned counsel referred to Article 78 of the Qanun-e- Shahadat, 1984 which says that if a document is alleged to be signed or to have been written wholly or in part by any person the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved. In support of his contention that the applicant did not execute agreement of sale, he cited the case of Qayoom and .2 others v.
Muhammad Azeem and 2 others PLD 1995 SC 381 in which it was held that under Article 78 of Oanun-e-Shahadat 1984 in a suit for specific performance of contract plaintiff is required to prove the signatures of the executant, on the agreement to sell. Suffice to say the cited case hardly advances the appellant's plea advanced in this case and is of no assistance.
12. I am not at all impressed .By the submission of the learned counsel that respondent No.2 was required to establish genuineness of the document as the a stage for proving genuineness or otherwise of the contract of sale is too far as the parties are required to discharge the onus of proof before the trial Court where the suit filed by respondent No.2 is pending decision. Argument advanced by the applicant in the circumstances of the present revision application is hardly relevant and need not be dilated further. On the face of it, dispute between the parties is essentially of civil nature as they seek to enforce their rights and interests under the contract of sale for which proper forum is Civil Court of competent jurisdiction,
13. Reverting to the third submission of the learned counsel for the applicant he has relied upon the following judgments:
(i) Abdul Haleem v. The State and others 1982 SCM R 988,
(ii) Abdul Habib Ahmed v. M.K.G. Scott Christian and others PLD 1992 SC 353,
(iii) Muhammad Tufail v. The State and another 1979 SCM R 437.
In Abdul Haleem's case it was held that during tiie pendency of the civil litigation criminal proceedings initiated by a party should remain stayed. This view was followed in the case at Serial No.2 and their Lordships of the' Supreme Court after setting aside the order relating to quashment of criminal proceedings before the Special Court for offences in respect of Bank directed that where the subject-matter of the dispute before the Special Court was also pending adjudication before a Civil Court criminal proceedings would remain stayed. Similar view was earlier expressed in Muhammad Tufail's case.
14. Without disputing the proposition of law enunciated by the Honourable Supreme Court it would suffice to say that the applicant had failed to make out a prima facie case for commission of offences under the criminal administration of justice and as pointed out by learned counsel for the respondents his complaint was belated by more than a year without any plausible explanation.
Learned counsel for the applicant attempted to explain the delay by referring to paragraphs Nos.l6 to 20 of the complaint to show that the applicant took time in tracing out the name of the Magistrate and the name of the Advocate who had attested the agreement and identified the parties respectively. Be that as it may, explanation for inordinate delay in launching prosecution on the face of it is neither convincing nor plausible. In this connection a reference may be made to the case of Abdul Rasheed and 2 others v. The State and another 1987 PCr.LJ 1380 in which Saleem Akhtar, J. (as his Lordship then was) quashed the proceedings in a complaint case on the consideration that no F.I.R. Was lodged against the accused; complaint was filed with unexplained delay of 1-1/2 months and the transaction appeared to be purely of civil nature. In the case of S.M.
Haseenuddin and 2 others v. The State 1987 PCr.LJ 2096 late Allah Dino G. Memon, J. Quashed the proceedings in a private complaint case under section 420, P.P.C. For the reason that there was delay of more that 1-1/2 years in filing complaint; no report was lodge with police; complaint and statement of complainant were vague on face of which no case under section 420, P.P.C. Was made out and proceedings were not likely to end in conviction of accused. On the other hand Mr. S. Madad Ali Shah referred to the judgment in Lt.-Col. Nizamuddin's case in which it was held that it is only under very exceptional circumstances, that delay by itself may be considered fatal in a criminal case, but in order to come to that conclusion all the circumstances of the case have to be examined. He also relied upon the case of Muhammad Afsar v. Muhammad Sadiq 1989 PCr.LJ 389 in which a learned Single Judge of the Lahore High Court held that delay alone in filing a complaint is not fatal and rejection of a complaint on-ground of delay is illegal.
15. Legal position emerging from above case-law is that delay alone in filing a complaint may not be fatal to the case, but this ground alongwith other circumstances of the case would be a relevant consideration for deciding tentatively whether there is a sufficient ground to proceed with the complaint or not. In the circumstances narrated above there is no escape from the conclusion that complaint lodged by the applicant was inordinately belated and there was hardly any explanation much less a convincing reason.
16. Since the applicant failed to make out a prima facie case for commission of offences alleged against the respondents, the question of staying the proceedings in the criminal case would not arise.
17. As regards the submission that the complaint was barred by the provisions of section 195(i)(c), Cr.P.C. I am of the considered view that the bar of jurisdiction relates only to prosecution for an offence under section 471, P.P.C. And not for other offences mentioned in the complaint. Even otherwise the bar would arise only when a forged document is tendered in evidence by a party to the proceedings before a Court. Impugned agreement of sale whether forged or not has not been tendered in evidence so for. Contention, therefore, is without any substance.
18. For all these reasons, by declining to take cognizance of the complaint, learned lower Court neither acted illegally nor with material irregularity. There is thus no scope for interference with the exercise of discretion by the Court below. Application is, therefore, without any substance. It is accordingly dismissed.