' This is a petition for quashment of a case titled State v. Haji Tayyab Khan etc., under section 420/46S, P. P. C. Pending in the Court of Resident Magistrate, Kamalia, Tehsil Toba Tek Singh, District Faisalabad.
2. Brief facts relevant for the disposal of this petition are as follows ' One Ghulam Mustafa son of Kabir Khan had two wives, namely Mst. Zaini and Mst. Ghafoori. Out of Mst. Zaini, Ghulam Mustafa had six children, namely, Mst. Lali, Mst. Kulsoom, Mst. Khadija, Ismail, Tayyab Khan and Inayat Khan. Out of the second wife, Mst. Ghafoori, he had three children, namely, Waris Ali, Mst. Balqis and Mst. Ghulam Fatima. Ghulam Mustafa died in 1948 and mutation of his inheritance was sanctioned in favour of his heirs, sometime in 1948-49 excluding Mst. Ghulam Fatima. After some years, Balqis the daughter and then Waris Ali, the son of Ghulam Mustafa, also died. After Waris Ali's death, Mst. Ghulam Fatima made an application to the Revenue Authorities for inclusion of her name in the inheritance of her brother. In the "jalsa-e-am" held on 27-1-1977 Mst.
Ghafoori, widow of Ghulam Mustafa, stated that Mst. Ghulam Fatima, the complainant who had filed the application, was her "pichlag" daughter i,e, out of her previous husband, but then she contradicted herself in the next sentence by saying she was from one Khan Muhammad out of Mst.
Majeedan. These proceedings were before the A. C. II. The A. C. II in his order dated 27-1-77 refused to recognise Mst. Ghulam Fatima as the sister of Waris Ali. Mutation was finally effected on 16-2-77 excluding Mst. Ghulam Fatima. Finding no redress from the Revenue Courts, Mst. Ghulam Fatima lodged a complaint with the police on 6-5-77 alleging that the present petitioner with the connivance of three others had deprived her from the inheritance of her father and that this had been done by presenting a lady other than her mother Mst. Ghafoori before the Revenue Authorities, who had impersonated her mother there and made a statement whereby the petitioner and his co-accused had managed to secure fraudulently mutations dated 27-1-77 and 16-2-77 depriving her of her share in the lands.
3. On the complaint filed by Mst. Ghulam Fatima, the police having investigated the case, filed a challan against the petitioner and three others under section 420/468, P. P. C. The petitioner and his co-accused having been summoned, the petitioner has now moved this Court for quashment of the said criminal case against him.
4. Before dealing with the arguments of the learned counsel for the petitioner, I will first deal with a preliminary objection raised by counsel for respondent No,
2. It is stated by counsel for respondent No, 2 that two quashment petitions, namely, Criminal Miscellaneous No, 285/Q/78 and Criminal Miscellaneous No, 306/Q/78 had been filed earlier in this Court jointly by Inayat Khan, Tayyab Khan and Ata Muhammad, the petitioner's three co-accused, which were all dismissed. The files of these two cases have been inspected by me. The first petition for quashment was dismissed by Mr. Justice Mazharul Haq on 2-4-78 who held that it was not the petitioners' case that the facts, as alleged, did not constitute an offence and that whether there was personation or forgery or not was a question of fact and the prosecution could not be denied the opportunity of proving its case before the trial Court. The second petition was also dismissed by Mr. Justice Mazharul Haq on 8-4- 78 who inter alia held that the petitioners should have in the first instance filed a revision before the Sessions Judge against the charge framed by the Magistrate if they were aggrieved by it, instead of coming up to the High Court under section 561-A, Cr. P. C. And that the prosecution could not be deprived of its opportunity of proving the charge of personation or forgery, as already held by him in his earlier order. The object of referring to these two petitions is that the present petitioner has not referred to these petitions filed by his three co-accused which were dismissed, which shows that the present petitioner has not come to this Court with clean hands. The fact that Inayat Khan, one of the three petitioners in the earlier two quashment petitions, is present in Court today, attending the learned counsel for the petitioner, in the absence of the petitioner who is not present, shows that the petitioner knew all about the earlier quashment proceedings. The petitioner has not disclosed the lodgment and dismissal of the two earlier quashment petitions filed by his three co- accused in this Court in the present petition. 1 therefore dismiss the present petition on the short ground that the petitioner has not come to this Court with clean hands.
5. Since the learned counsel for the petitioner has in his arguments dealt with certain important points relative to quashment, in deference to his lengthy arguments, I will deal with them too, so that this case may be disposed of on merits as well.
6. Learned counsel for the petitioner submits, first, that the F. I. R. As lodged and the statements of the witnesses recorded under section 161, Cr. P. C. Do not make out a case under section 420, P. P. C. ; second, that cognizance of the case under section 468, P. P. C. Could not be taken by the Magistrate on the challan put up by the police in view of the fact that there was no complaint to the Magistrate from the Presiding Officer of the Revenue Court before whom the offence had been committed; and lastly that the charge under section 420/468 could not have been framed against his client.
7. In respect of the first submission, the learned counsel had drawn my attention to the case of Mst.
Thari v. Muhammad (1), wherein the learned Judges of the Supreme Court held that where certain persons procured an unidentified woman to impersonate another particular lady, the complainant in that case, before the Revenue Officer, before whom she falsely made a statement which had the effect of depriving the complainant of her right to certain lands, it was held that the offence of cheating was not made out as, according to the provisions of section 415, P. P. C. Which defined that offence, no harm in body, mind, reputation or property had (1) PLD 1973 SC 619 been caused to the deceived person (i,e, the Revenue Officer) who sanctioned the mutation. It was therefore held in that case that no offence under section 420, P. P. C. Was made out and that this extraordinary result was the outcome of the defective definition of cheating contained in section 415, P. P. C. Which defect should be rectified by the Legislature. It was submitted by the learned counsel that the facts of the present case are almost parallel with the facts of the case before the Supreme Court and that therefore no case against his client is made out under section 420, P. P. C.
8. As regards the second contention, the learned counsel for the petitioner has submitted that in view of the provisions of section 195(1)(c) of the Cr. P. C. The Magistrate could not have taken cognizance of the offence under section 468, P. P. C. In the absence of a complaint in writing of A. C.
II before whom the impersonation took place and before whom the forged document or documents were produced. Reliance was placed on Assudomal Ramandas v. Jhahmandas (1).
Chandrabai v. Abdul Qadoos (21, State v. Syed Sardar Shah Bokhari (3) and Ch. Muhammad Roshan v. The State (4).
9. Regarding the third and last submission, the learned counsel has submitted that the charge under section 420/468, P. P. C. Could not be framed against the petitioner as no case was made out against him under these two heads.
10. On behalf of Mst. Ghulam Fatima, respondent No, 2, the learned counsel for the said respondent has filed attested copy of Mutation No, 182 relating to Mahal Chak GB/735 of Hadbust 483 in Court.
On the strength of this document the learned counsel submits that the name of his client is shown in the pedigree-table as being the daughter of Ghulam Mustafa and Mst. Ghafoori and that on the reverse side of the said entry of mutation, is the order of A. C. II dated 27-1-77 where Mst. Ghafoori, mother of Wads Ali deceased, is shown to have stated in Ijlas-i-am that Mst. Ghulam Fatima who had filed the application before the Revenue Officer (A. C. II) was her "pichlug daughter". The learned counsel has further pointed out that in the said proceedings before A. C. II his client's statement bearing her signature or thumb-impression does not appear, though she has been shown as being present, that Ghaus Muhammad Khewatdar who is shown as having identified Mst.
Ghafoori, is not a Khewatdar of the area and that Ata Muhammad Lambardar who is also shown as having identified Mst. Ghafoori, was in fact not the Lambardar of the village concerned. It is further stated that Ata Muhammad Lambardar was removed by the Commissioner, Sargodha Division, on 9-1-78, on account of misconduct pertaining to a number of such wrongful attestations made by him. Learned counsel for respondent No, 2 also submits that apart from offences under sections 420 and 468, P. P. C., offences under sections 193 and 205, P. P. C. Are also made out from the F. I. R.
And the statement of the witnesses recorded by the police under section 161, Cr. P. C. And that these offences the learned Magistrate can at any time add to the charge, under section 22 7, Cr. P. C. He has drawn my attention to the fact that all these offences do not require a complaint in writing of a Revenue Officer before a Magistrate can take cognizance of the same, as proceedings before a Revenue Officer is not before a Court. Learned counsel has also pointed out that since the petitioner's main (1) AIR 1940 Sind 100 (2) PLD 1966 Kar. 122 (3) PLD 1975 Lah. 1407 (4) PLD 1978 Lab. 307 contention was that he could not be charged under section 420/468, P. P. C. As no case was made out against his client in respect of the two offences under section 420/468, P. P. C.
Referred to in the charge, he should have filed a revision against the said order. In this connection he has pointed out that Mr. Justice Mazharul Haq in Criminal Miscellaneous 306/Q/78 held that if the petitioners were aggrieved by the framing of the charge, they should have filed a revision before the Sessions Judge instead of coming up before this Court under sections 561-A, Cr. P. C.
Lastly, it is submitted that both the previous petitions for quashment were filed by the three co- accused of the present petitioner who all had stated in para. 5(b) of their petitions that Atta Muhammad and the present petitioner were not liable to be charged under section 420/468, P. P.
C. And thus, as indirectly the case of the present petitioner had been pleaded in these petitions, the earlier two dismissal orders indirectly dealt with the case of the present petitioner too.
11. Learned counsel for the State who has also addressed arguments in this case has submitted that the question of jurisdiction should have been raised before the Magistrate, who was initially competent to look into the matter and had to discharge the accused, if he was convinced that he had no jurisdiction. He has further submitted that proceedings under section 561-A, are extraordinary proceedings and cannot be invoked where other remedies Cr. P. C. Are available and in this respect he pointed out that the petitioner had the right of filing a revision before the Sessions Judge in respect of the charge framed against him, if he was aggrieved by it.
12. I have given my anxious consideration to this case. I have also perused the various documents filed by the parties. As regards the first contention of the learned counsel for the petitioner that even on the facts, as alleged, both in the F. I. R. And in the statements of witnesses recorded under section 161, Cr. P. C., no case is made out under section 420, P. P. C., I am afraid I must accede to this contention, in view of the authoritative pronouncement of the Supreme Court in Mst. Thari v.
Muhammad. There in that case it was held that where two persons put up a fictitious woman (to impersonate the real owner of property) who made a false statement before the Revenue Officer gifting the land to another, it was held that the offence under section 420, P. P. C. Was not made out against the persons who were guilty of cheating due to the particular defect in the language of section 419, P. P. C. Which did not adequately cover the case in instance. The facts of the present case are similar to those as were present before the Supreme Court and the same legal result must therefore flow in this case.
13. As regards the second submission of the learned counsel for the petitioner that in the absence of complaint in writing from the Revenue Officer who passed either of the mutations, dated 27-1- 1977 and 16-2-1977, the Magistrate should not have taken cognizance of the offence under section 468, P. P. C. On the challan filed by the police, the matter is not entirely free from difficulty. In the first instance, it must be submitted that the F. I. R., and the statements of the witnesses recorded under section 161, Cr. P. C. Not only ex facie make out a case under section 468, P. P. C. But also a case under sections 193 and 205, P. P. C. As well. In this view of the matter, though sections 205 and 468, P. P. C. Are covered by clauses (b) and (c) of subsection (1) of section 195, Cr. P. C. In respect of which no Court can take cognizance of these offences except on the complaint in writing of such Courts before whom such offences have been committed, etc., the cognizance of an offence under section 193, P. P. C. May be taken by a Magistrate without any such report. The learned Magistrate at any time can under section 227, Cr. P. C. Alter or add to any charge at any time before judgment is pronounced and I am no doubt sure he will look into the question whether sections 193 and 205, P.
P. C. Should be added or not to the charge already framed. But irrespective of this, assuming for the time being that I am only dealing with section 468 of the P. P. C., as the sole charge framed against the petitioner, the very same ruling, namely, Thari v. Muhammad D relied upon by the petitioner, is authority for the proposition that proceedings before a revenue officer is not before a Court and that clause (c) of subsection (1) of section 195 of the Cr. P. C. Which requires that the complaint in writing must be by a Court before whom the offence is alleged to have been committed by a party to any proceeding before it in respect of a document produced or given in evidence in such proceeding, will not therefore apply to the case in instance. The same would be the position, assuming sections 193 and 205, P. P. C. Were to be added to the charge by the Magistrate In view of the decision of the Supreme Court in Mst. Thari v. Muhammad, I am afraid I cannot follow the decision of Davis, J. C. And Westen, J. In Assudomal Ramandas v. Jhahamandas in which the Judicial Commissioners held that a mukhtiarkar holding an inquiry in mutation proceedings was a Revenue Court within the meaning of section 195(1)(c) Cr. P. C., though his proceedings are not judicial proceedings within the meaning of section 196, Bombay Land Revenue Code. Learned counsel for the petitioner submits that the observation of the Supreme Court in Mst. Thari v.
Muhammad is obiter and I should not follow the same. He submits that the reasoning given by their Lordships of the Supreme Court in coming to the conclusion that a mutation officer is not a Court, is in language which is somewhat brief and the Judges have not referred to subsection (2) of section 195, Cr. P. C. Or any case-law for arriving at their opinion. Actually, the decision of the Supreme Court is not obiter but per incuriam. The learned Judges of the Supreme Court, for reasons best knows to themselves, did not analyse, quote or refer to subsection (2) of section 195, Cr. P. C. The decision suffers from a very peculiar incuria. The Supreme Court by all means can on this ground, ignore this decision in a subsequent case. In London Street Tramways v. L. C. C. (1). Lord Halsbury held that the House was not bound by a previous decision of its own, if it had ignored the existence of a statute. In Young v. Bristol Aeroplane Company Ltd. (2), the Court of. Appeal held that it was not bound to follow its earlier decision if it was satisfied that the same was given per incuriam, e.g. Where a statute or a rule having statutory effect, which would have affected the decision, was not brought to the attention of the earlier Court. In the American Jurisdiction, the position is not dissimilar. American Jurisprudence, Vol. 14-"COURTS"page 126 and First National Bank v. Doschades
(3) and Nadstanck v. Trask (4) may be referred to with advantage. But then the important question that arises is whether Courts can impugn precedents of superior Courts on such a ground.
Salmond on Jurisprudence, 11th Edition, page 203 in dealing with judgments given per incuriam states : "Even a lower Court can impugn a precedent on such grounds." However, the reviewer has not been able to cite any case-law from the English Courts to support his opinion. In the American jurisdiction, however, the decisions can be impugned, Corpus Juris Secundum, Vol. 21-"COURTS"- page 197 and U. S, Asher v. U. S. D. C. Cal. May be referred to in this connection. Though the reasoning given by their Lordships of the Supreme Court in Mst. Thari v. (1) (1898) A C 380 (2) 1944 K B 729
(3) 47 Idaho 661 (4) 130 Or, 669 Muhammad in coming to the conclusion that a mutation officer is not a Court, is in language which is somewhat scanty and the learned Judges have not referred to subsection (2) of section 195, Cr. P. C. Therein, but considering that in the earlier pages, the whole of the facts have been recited and subsection (1) of section 195, Cr. P. C. Has been properly quoted and considered, it cannot be said that the Judges were ignorant of subsection (2) of section 195, Cr. P. C. Their decision is on a question of law. Since the decision has decided a question of law, under Article 189 of the Constitution of the Islamic Republic of Pakistan, I am bound by it, irrespective of the incuria and the view of the author who last revised the 11th Edition of Solmond's Jurisprudence and the cases in the American jurdisdiction. In fact, even assuming, as pointed out by the learned counsel for the petitioner, that the opinion is obiter, I would be bound by it all the same, in the light of the Full Bench authority of this Court reported in A. M. Khan Leghari v.
Government of Pakistan (1). For these reasons, I reject the second contention of the learned counsel for the petitioner.
14. As regards the third contention raised, namely, that no charge under section 420/468, P. P. C., could be framed against the petitioner, for reasons submitted above by learned counsel for the petitioner in support of the earlier two contentions made, I am of the opinion that at best it can be stated on the authority of Mst. Than v. Muhammad that the framing of a charge under section 420, P. P. C., would have been inappropriate, but as regards the charge under section 468, P. P. C., my learned brother Mazharul Haq, J. In the earlier quashment petitions has already held that the facts as alleged, constituted an offence which was not denied, that if accused were aggrieved by the charge framed by the learned trial Court, they should have filed a revision petition before the Sessions Judge ; and that in any case the question whether there was personation or forgery was a question of fact and the prosecution could not be denied the opportunity of proving its case before the trial Court. I fully agree with the views of my learned brother. The position has not altered since.
This matter having already been decided by my learned brother twice, in respect of the same case, cannot be permitted to be opened a third time. The tendency on the part of accused persons involved in the same case to file separate applications for the same relief, as a device to canvas the same point a number of times, is not only to be deprecated but should be seriously discouraged. This contention is, therefore, rejected.
15. On the merits even, this petition cannot be sustained.
16. For the foregoing reasons, this petition is dismissed.
(1) PLD 1967 Lah. 227