' This petition has been filed for abashment of the case registered vide F.I.R. No,658, dated 28-12- 1994 or in the alternative to stay the criminal proceedings before the Court.
2. Briefly stated the facts giving rise to the petition are that Iftikhar Ali, petitioner obtained a shop on rent from Abdul Hafeez Awan, respondent No,2 somewhere in the year, 1986. The petitioner had obtained N.O.C. From respondent No,2 for installation of a telephone connection in the shop and accordingly the needful was done by the P.T.C. In the year 1992. On 21-9-1993, respondent No,2 filed an ejectment petition against the petitioner before the Rent Controller, Faisalabad on the ground of personal need and default in payment of rent. The petition was allowed by the learned Rent Controller vide his order, dated 22-2-1994. The petitioner filed an appeal before the learned Additional District Judge. During the pendency of the appeal, respondent No,2 filed an application before the Divisional Engineer Peoples Colony, P.T.C., Faisalabad stating therein that he had cancelled the N.O.C. For telephone given to the petitioner. Accordingly, the petitioner's telephone was disconnected. The petitioner filed an application on 27-10-1994 before the appellate Court for restoration of the telephone connection and initiating contempt proceedings against the landlord.
He attached a copy of the N.O.C. With the application. The said application was dismissed by the learned Additional District Judge, on 22-9-1995. Respondent No,2 filed an application before the S.S.P., Faisalabad for registration of a criminal case against the petitioner on the ground that he had committed forgery by adding the words, "also valid for further 15 years" in the N.O.C. The said application was sent to the S.H.O. Who accordingly registered a case under sections 420, 468 and 471 of the P.P.C. During the course of investigation, the police made an application on 30-12-1994 for obtaining physical remand of the petitioner. On the said application, the learned Magistrate passed the following order:-- "The accused under police custody along with record present. I have perused the record. The offence has been committed during the proceeding in the Court of Honorable Additional Sessions Judge and according to section 195, Cr.P.C. No one is competent to initiate the proceeding against the accused except the written complaint by that Court. In this case the complainant is other than that Court. In my opinion this case is not supported by law. The accused is, hereby, discharged from this case. He be released if not required in any other case."
' This order was not assailed by respondent No,2 before any higher legal forum. It appears that the Investigating Agency was not satisfied and obtained the opinion of the D.S.P. (Legal), Faisalabad who expressed the view that the offence had been independently committed by the petitioner and not during the course of the proceedings. He expressed the view that the challan prepared by the police be got endorsed by the learned Additional Sessions Judge which would be sufficient compliance of the provisions of section 195 of the Cr.P.C. Thereafter, the S.H.O. Completed the investigation and directly submitted challan before the Magistrate.
3. The petitioner filed an application under section 249-A of the Cr.P.C. Before the trial Court on 30- 11-1995 which was dismissed by the Court viae order, dated 21-10-1996. To complete the narration of facts, it may be mentioned that the petitioner's appeal before the learned Additional District Judge was dismissed on 12-2-1995. The petitioner challenged the said judgment by way of S.A.O.
No,44 of 1995, which was allowed on 30-5-1996 whereby the judgments of the Courts below were set aside. Respondent No,2 filed a petition for leave to appeal in the Supreme Court of Pakistan which was allowed and at present the appeal is pending in the Supreme Court.
4. I have heard the learned counsel for the parties and perused the material on the record.
Admittedly, respondent No,2 had granted N.O.C. To the petitioner for installation of telephone connection in his shop but his case is that the words, "also valid for further 15 years" were subsequently added by the petitioner, hence he was guilty of foregoing a part of the N.O.C. It is not the case of respondent No,2 that the petitioner had cheated him and dishonestly induced him to deliver any property or to make alter or destroy the whole or any part of a valuable security or sign or seal anything capable of being converted into a valuable security. Therefore, the provisions of section 420 of the P.P.C. Were not attracted in the case. Similarly, the material on the record does not make out any offence under section 468 of the P.P.C. The said offence essentially relates to commission of forgery for the purposes of cheating. In case of cheating (defined under section 415 of the P.P.C.) there is deception whereby another person is fraudulently or dishonestly induced by the accused to deliver any property or retain any property or to do or omit to do anything which he would not do or omit if not so deceived and in consequence of the act or omission the accused causes or is likely to cause damage or harm to another person in body, mind, reputation or property. The pre-requisites of cheating enumerated in section 415 of the P.P.C. Are not satisfied in the case. So far as the offences under sections 468 and 471, P.P.C. Are concerned, the same are not cognizable and the police was not competent to register a case without permission of the Magistrate. It may be mentioned that the second part of the offence under section 471, P.P.C. Is cognizable but it relates to forgery of a promissory note of the Central Government. Therefore, even if it is presumed that the alleged offence was independently committed by the petitioner, still the police was not authorized to take cognizance of the same without permission of the Magistrate.
Moreover, order, dated 30-12-1994 for discharging the accused/petitioner was never challenged before any higher legal forum, therefore, it attained finality. In the presence of the said order, the police was no longer competent to conduct further investigation and submit challan in the Court.
The petitioner had submitted the disputed N.O.C. Before the learned Additional District Judge during the pendency of his rent appeal. Therefore, even if it was found to be forged, no case could have been registered against the petitioner without a written complaint made by the Court concerned as required under section 195(1)(c) of the Cr.P.C. In my view, .The proceedings before the trial Court clearly amount to an abuse of lacrosse of the Court and continuance of the same would be contrary to the interests of justice.
5. For all the above said reasons, the petition is accepted, the case registered vide F.I.R. No,658, dated 28-12-1994 and further proceedings before C the trial Court are quashed.