' Vide F.I.R. No, 566, dated 1-8-2003 Naveed Maik complainant through an application, laid information at Police Station Civil Lines, Rawalpindi, that he and his mother owned the property mentioned in the F.I.R. Wherein the petitioners are in occupation. The petitioners told the neighbours that they have filed civil suits against the complainant and his mother. Inquiry was made and it turned out that they have filed specific performance suits against them. It further reveal that the suits have been filed on the basis of agreements, dated 13-1-2003 and 21-1-2003.
According to the complainant both the said documents are forged as neither the complainant nor his mother purchased the stamp papers nor these documents bear their signature. It was further stated that in collusion with Amjad Nisar Abbasi, Stamp Vendor, the documents have been prepared in the back dates and the stamps have been provided by the said Stamp Vendor to make unlawful gains. These documents have been fabricated by the petitioners to cause wrongful loss to the complainant and his mother and have produced the same in. Court. A case under sections 420, 468 and 471, P.P.C. Was registered on the same date. In the first instance the petitioners applied for grant of bail before arrest. These applications were rejected. Thereafter their bail application was rejected by a learned Magistrate and then by a learned ASJ, Rawalpindi, on 17- 9-2003.
2. Sardar M. Latif Khan Khosa, learned counsel for the petitioners, vehemently contends with reference to the judgment in the case of Abdul Wahab Khan v. Muhammad Nawaz and 7 others (2000 SCMR 19) that the offence relates to a document which forms part of judicial record in a pending suit as such section 195, Cr.P.C. Would be a complete bar to the registration of the said case at the instance of the complainant. Regarding the reason recorded in the bail refusing orders that the original documents are being retained by the petitioners, learned counsel states that they have every right to refuse to hand over the documents to the police as there is a strong apprehension in their mind that these documents will be first tampered with and then an adverse report from the Handwriting Expert will be procured. Ms. Nahida Mahboob Elahi, learned counsel for the complainant assisting the learned counsel for the State, argues that the petitioners who were admittedly the tenants of the complainant and his mother have resorted to forgery to cause wrongful harm to the complainant and to usurp their property. She insists that a prima facie adverse inference is to be drawn against the petitioners who were unlawfully refusing to deliver up the original documents so as to enable the prosecution to get the signatures thereon the complainant and his mother compared with their admitted signatures.
3. I have examined the records. The suits referred to in the F.I.R. Were filed by the petitioners, as per copies available, on 21-7-2003. As per contents of these plaints copies of the documents are annexed therewith. As noted above, the information was laid through an application, dated 30-7- 2003 and the case was registered on 1-8-2003.
4. Now coming to the said contention of the learned counsel for the petitioners. As per facts noted in the report of the said case of Abdul Wahab Khan, the allegations made in the private complaint filed before a learned Special Judge (Anti-Corruption) at Lahore, were of corruption, tampering with official record, theft of judicial files with ulterior motives and receiving of an amount of Rs,30,000 in lieu of alleged sales of judicial files. The learned Special Judge dismissed the complaint after recording the preliminary evidence. This order was upheld by this Court and appeal, by Leave of the Court, was heard by the Hon'ble Supreme Court of Pakistan. Now I find that the discussion relevant to the said contention of the learned counsel is to be found in paras. 8 and 9 of the judgment at pages 1913 and 1914 of the report. I may further note here that their Lordships quoted with approval some excerpts from a Full Bench judgments of this Court in the case of Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178). Their Lordships noted that the allegations made in the said complaint do attract the provisions contained in section 195(c), Cr.P.C. And the complaint could have been filed only by the Court concerned against the delinquents who were party in the proceedings. It was further noted that the complainant in the said case was neither the Court concerned nor a party in the proceedings which were being conducted in the Court.
5. Now as noted by me above, their Lordships referred to the said Full Bench judgment' of this Coon and in my humble opinion quoted some portions of the same with approval. Now the question referred to the said learned Full Bench of this Court in the said case of Muhammad Shafi was as follows:-- "(i) Whether the previsions of section 195, subsection (1), clause (c) of the Cr.P.C. As regards offences described in section 463 or offences punishable under section 475 or section 476 of the P.P.C. Apply to a document which is produced or given in the evidence in a suit or in any other , proceeding in a Court but which had been forged before the institution of the suit or proceedings?"
' This question was answered in the negative. The leading opinion of the Full Bench was delivered by Mr. Justice Fazal Karim (as his Lordship then was). The reasons to my mind are contained in para.27 of the judgment at pages 196 and 197 of the report which are reproduced hereunder:-- "27. On two well-established principles, the provisions of Cr.P.C. Must be construed strictly. First, the proper place for the determination of a person's guilt or innocence is a Criminal and not a Civil Court or Revenue Court. But section 195 read with section 476 of the Cr.P.C. Empowers the Courts, other than the Criminal Courts also to try the guilt or innocence of persons. This is, therefore, a provision, which deprives the ordinary Criminal Courts of their ordinary jurisdiction, and should be on the principle illustrated by Anisminic Ltd. Foreign Compensation Commission (1969) 2 AC 147...Construed strictly. Secondly section 195 is an exception to the general rule that any person may set the criminal law in motion, its consequence being to take away the right of redress of persons. The rule that governs such provisions is well-stated in Maxwell at page 251: "Statutes which encroach on the right of subjects whether as regards person or property, are subject to a strict construction in the same way as penal Acts. It is a recognized rule that they should be interpreted, if possible, so as to respect such rights, and if there is any ambiguity the construction which is in favour of the freedom of the individual should be adopted."
'As the two interpretations of clause (c) subsection (1) of section 195 of the Cr.P.C. Are so evenly balanced, the one that does not deprive the ordinary Criminal Courts of their ordinary jurisdiction and persons of the rights must be adopted. On that view of the matter also, the view that clause
(c) of subsection (1) of section 195 of the Cr.P.C. Does not apply to cases in which the forgery was committed before the institution of a suit or other proceedings in which the forged document is produced or given in evidence should, in my opinion, be preferred."
6. Now applying the said test to the preset case, it is but evident that the alleged forgery had been committed at a point some time before the institution of the suit. The documents bear the dates 13-1-2003 and 21-1-2003 while the suits were filed on 21-7-2003. This being so, the case in hand falls in the category to which section 195 (1)(c), Cr.P.C. Would not apply and as such it cannot be held that the case has been registered without lawful authority.
7. Now regarding the refusal of the petitioners to hand over the original documents for the purposes noted above, I called upon the learned counsel to explain #s to why the original documents were not placed on the record of the civil suits, particularly so when it is a requirement of Code of Civil Procedure (Order VII, rule 14, C.P.C.). The learned counsel has not been able to make a satisfactory explanation. This being so, the learned counsel for the complainant is right in contending that a prima facie adverie inference is to be drawn against the petitioners in this matter. The Criminal Miscellaneous is accordingly dismissed.