PLJ 2010 Lahore 633
[Multan Bench Multan]
Present: Tariq Javaid, J.
MANSOOR ALI QURESHI--Petitioner
versus
SHO etc.--Respondents
W.P. No. 6639 of 2010, decided on 28.6.2010.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 195(1)(c) & 22-A--Constitutional petition--Order passed by Justice of Peace was unexceptionable to extent of offence complained of relating to forgery--Application u/S. 22-A, Cr.P.C. was rejected on the ground that civil litigation was pending between the parties and u/S. 195(1)(c), Cr.P.C. a forged document was presented was vested with the power to register a case--While petitioner was abroad his signatures were forged and an agreement to sell was made--Document was examined by Forensic Science Laboratory as well as by handwriting expert and signatures were found to be forged--Validity--Justice of Peace failed to notice another aspect of the case--Complainant had not only made grievance of offences as enumerated in S. 195(1)(c), he had also alleged an offence of cheating and prayed for registration of case u/S. 419, 420 of PPC--Offence u/Sections are distinct from the offence of forgery--These offences do not fall within purview of S. 195(1)(c) Cr.P.C.--Order passed by Justice of Peace impugned was not sustainable to this extent--Offence complained of u/S. 419 & 420 of PPC being distinct offence from the offence of forgery--Justice of Peace was not justified in passing the impugned order. [Pp. 637 & 638] A & B
Mr. Muhammad Ramzan Khalid Joiya, Advocate for Petitioner.
Date of hearing: 28.6.2010.
Order
This writ petition is directed against order dated 22.6.2010 passed by the learned Justice of Peace, Sahiwal whereby application filed by the petitioner under Section 22-A Cr.P.C. was rejected on the ground that a civil litigation is pending between the parties and under Section 195(1)(c) Cr.P.C., only the Court before whom a forged document is presented was vested with the power to register a case against the accused.
2. The brief facts of the case are that the petitioner has claimed that while he was abroad his signatures were forged and an agreement to sell was made by the respondents. The document was examined by the Forensic Science Laboratory as well as by the handwriting expert and his signatures were found to be forged. Hence, he filed application for registration of case. The learned Justice of Peace came to the conclusion that since the civil litigation is pending, the trial Court under Section 195(1)(c) was empowered to get the case registered as such application under Section 22-A Cr.P.C. was dismissed.
3. The learned counsel for the petitioner has relied upon the case of Muhammad Shafi versus Deputy Superintendent of Police (PLD 1992 Lahore 178) and maintained that since the forgery was committed before initiation of the civil litigation, the civil and criminal proceedings could continue at the same time. The Full Court at Page 197 observed as under:--
"As the two interpretations of clause (c) of sub-section (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 right of redress must be adopted. On that view of the matter also, the view that clause (c) of sub-section (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."
However, the above view has though been followed in number of cases, yet it appears to be distinguishable as an attempt appears to have been made to make an inroad to circumvent the statutory provision which otherwise requires to be interpreted on the established principles of statutory interpretations. Moreover, the reasoning given in para 21 of the judgment also suffers from legal infirmity. The Full Bench in para 21 of the judgment held as follows:--
"21. Now can it be said that the offence of forgery was against the administration of justice in a case in which the offence was committed, say, ten to twenty years before the suit in which the forged document was produced or given in evidence? The answer must obviously be in the negative. The forger must have, before the suit, used the forged document on a number of occasions in deceiving a number of persons. And when his fraud and forgery came to light and the real owner or the persons defrauded were preparing to take criminal proceedings, he hit upon the clever device of instituting a civil suit and producing the forged document in the civil suit. He would, then, on the view contended for by the petitioner, be able to say: `Well, I have produced the document in the Civil Court; you have to wait till that Court has finally decided the genuineness or otherwise of the document, for unless that is done, that Court will not be in a position to say whether an offence of forgery was committed or not and to lodge a complaint under Section 195'. Unfortunately, civil suits usually take very long to decide and, in practical terms, it may amount to completely defeating the ends of justice. On this view, therefore, the Civil Courts will become a place for the protection of criminals. This obviously could not have been the intention of the law. The cause of action for proceeding against the forger arose immediately when the offence of forgery as defined in Section 463 of the P.P.C., was committed. The commission of that offence was not only intended to deprive the real owner of his property but had also enabled the forger to deceive others and to deprive them of money. No proceedings were pending in any Court at that time. There was, therefore, no question of the offence, at the date of its commission, being against the Court or the administration of justice; nor did it, then, in any way sully the proceedings of the Court, for none were pending."
4. The ratio decidendi as reproduced above appears to be contrary to the view taken by their Lordships while rendering judgment in the case of Abdul Wahab Khan vs. Muhammad Nawaz and others (2000 SCMR 1904) wherein it was held that it was only for the Court to report an offence under Section 195(1)(c) Cr.P.C., as it necessarily related to obstructing and impeding the course of justice and had direct impact on the judicial process. It was observed as under:--
"8. We have also dealt with the provisions as contained in Section 195, Cr.P.C., to see that up to what extent it does constitute a bar in such-like cases and whether appellant was competent to file the complaint against respondents who all were Government officials. The general rule is that any person irrespective of the fact whether he is aggrieved or not and his interest is at stake or otherwise having knowledge about the commission of any offence may set the law in motion but the provisions as contained in sections 195 Cr.P.C. to 198, Cr.P.C. contain exceptions to the said general rule from taking cognizance of certain offences unless the functionary concerned institutes a complaint. It is well-settled by now that "provision of Section 190 Cr. P. C. lays down the general rule that any person can set the criminal law in motion but Section 195, Cr.P.C. is one of the exceptions to that rule Provision of Section 195, Cr.P.C. provides that, in case offence under Section 195, Cr.P.C. only the public authority concerned and Court has the right to file a complaint and unless there is a complaint by such public authority or Court, as the case may be, no Criminal Court shall take cognizance of these offences--Every offence mentioned in Section 195, Cr.P.C. though affects a private person, yet he stands deprived of his general vested right to have recourse to the criminal law. The purpose of enacting Section 195, Cr.P.C. has long been well-identified. It may at the best be considered in the context of sections 190, 476 and 476-A of the Code. Section 190 lays down the general rule that any person can set the criminal law in motion and Section 195 is one of the exceptions to that rule. The latter says that in the category of cases mentioned in its clause (a), only the public authority concerned and in the category of case mentioned in clauses (b) and (c) only the Court concerned has right to file a complaint and unless there is a complaint by such public authority or Court, as the case may be, no criminal Court shall take cognizance of these offences. Thus, though every offence mentioned in Section 195 must necessarily affect private person, yet he stands deprived of his general vested right to have recourse to the criminal law. One must naturally ask--what is the reason for so depriving him? To deprive a person of his right to redress is a strong thing and there must needs be strong reasons or legislative purpose behind it. These offences have been selected for the Court's control because of their direct impact on the judicial process. It is the judicial process, in other words, the administration of public justice which is the direct and immediate object or victim of those offences and it is only by misleading the Courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realized. As the purity of the proceedings of the Court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complainant against the guilty party." There is no cavil to the proposition "it seems to follow inexorably that clause (c) of Section 195 (1) will fail in its object if the literal construction contended for by the petitioner' counsel is adopted. The adoption of that construction will inevitably result in extending the application for clause (c) to cases to which it was not, and could not be intended to apply. The purposive approach to the interpretation of clause (c) of Section 195 (1) on the other hand leads and leads ineluctably, to the construction that clause applies to only those offences that have a "close nexus between the offence and the proceedings"; in other words, it "contemplates cases of tampering with the documents on the record of a Court or cases of previously forged documents being used as genuine in certain proceedings." This view is reinforced by the following observation of the Select Committee who drafted this clause in 1923:--
"In short, Section 195 now deals with limitations that exist to the cognizance of offences by a Court. While if a Court before whom (the underlining is mine) an offence mentioned in Section 195 is committed wants to take action against the delinquent, it can only proceed under Section 476."
9. In the light of touchstone of the criterion as discussed herein above we have examined question of alleged forgery and tampering with judicial files as alleged by the complainant and in our considered view it attracts the provisions as contained in Section 195(c), Cr.P.C. and complaint could have been filed by "Court concerned" against the delinquents who were party in the proceedings. It is an admitted feature of the case that the complainant was neither the "Court concerned" nor "party in the proceedings" which were being conducted in the Court. It is worth mentioning that the appellant was substituted with Mr. Nasrullah Khan, Magistrate who had taken over his charge on 16th February, 1984 and, therefore, the complaint could have been filed by him. It hardly needs any elaboration that "a Court continues to be a Court notwithstanding the change of Presiding Officer and consequently a successor in office is equally competent to make a complaint in respect of offence committed before his predecessor". (PLD 1976 Pesh. 64 + AIR 1940 Lah. 242 (DB) + AIR 1928 Lah. 759) and after taking over Mr. Nasrullah Khan alone was competent to do the needful and not the complainant."
5. The dictum laid down by the Hon'ble Supreme Court shows that the distinction drawn by the Full Bench in PLD 1992 Lah. 178 was of little significance. Following the dictum laid down by the Hon'ble Supreme Court, it appears that the order passed by the learned Justice of Peace was unexceptionable, to the extent of offence complained of relating to forgery.
6. However, the learned Justice of Peace failed to notice another aspect of this case. The complainant had not only made grievance of offences as enumerated in Section 195(1)(c), he had also alleged an offence of cheating and prayed for registration of case under Sections 419 and 420 of the PPC. Offences under the said sections are distinct from the offence of forgery. These offences do not fall within the purview of Section 195(1)(c) Cr.P.C. In Amin Ahmad Khan vs. The State (NLR 1987 Criminal 732) it was held that offences under Sections 419 and 420 being distinct offence the proceedings could continue and the bar contained in Section 195 (1) (c) Cr.P.C. was not applicable. Similarly in Bashir Ahmad vs. State (1999 YLR 2386) it was held that the bar contained in Section 195(1)(c) was not operative in case of offences under Sections 419 and 420 of the PPC.
7. The resume of the above said judgments amply shows that the order passed by the learned Justice of Peace, impugned herein is not sustainable to this extent. The offence complained of under Sections 419 and 420 of the PPC being distinct offence from the offence of forgery, the learned Justice of Peace was not justified in passing the impugned order. Therefore, the Respondent No. 1 is directed to receive the complaint of the petitioner and if a cognizable offence is made out he shall register a case against the delinquents. With this direction this, petition is disposed of.
(R.A.) Petition disposed of.
[Multan Bench Multan]
Present: Tariq Javaid, J.
MANSOOR ALI QURESHI--Petitioner
versus
SHO etc.--Respondents
W.P. No. 6639 of 2010, decided on 28.6.2010.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 195(1)(c) & 22-A--Constitutional petition--Order passed by Justice of Peace was unexceptionable to extent of offence complained of relating to forgery--Application u/S. 22-A, Cr.P.C. was rejected on the ground that civil litigation was pending between the parties and u/S. 195(1)(c), Cr.P.C. a forged document was presented was vested with the power to register a case--While petitioner was abroad his signatures were forged and an agreement to sell was made--Document was examined by Forensic Science Laboratory as well as by handwriting expert and signatures were found to be forged--Validity--Justice of Peace failed to notice another aspect of the case--Complainant had not only made grievance of offences as enumerated in S. 195(1)(c), he had also alleged an offence of cheating and prayed for registration of case u/S. 419, 420 of PPC--Offence u/Sections are distinct from the offence of forgery--These offences do not fall within purview of S. 195(1)(c) Cr.P.C.--Order passed by Justice of Peace impugned was not sustainable to this extent--Offence complained of u/S. 419 & 420 of PPC being distinct offence from the offence of forgery--Justice of Peace was not justified in passing the impugned order. [Pp. 637 & 638] A & B
Mr. Muhammad Ramzan Khalid Joiya, Advocate for Petitioner.
Date of hearing: 28.6.2010.
Order
This writ petition is directed against order dated 22.6.2010 passed by the learned Justice of Peace, Sahiwal whereby application filed by the petitioner under Section 22-A Cr.P.C. was rejected on the ground that a civil litigation is pending between the parties and under Section 195(1)(c) Cr.P.C., only the Court before whom a forged document is presented was vested with the power to register a case against the accused.
2. The brief facts of the case are that the petitioner has claimed that while he was abroad his signatures were forged and an agreement to sell was made by the respondents. The document was examined by the Forensic Science Laboratory as well as by the handwriting expert and his signatures were found to be forged. Hence, he filed application for registration of case. The learned Justice of Peace came to the conclusion that since the civil litigation is pending, the trial Court under Section 195(1)(c) was empowered to get the case registered as such application under Section 22-A Cr.P.C. was dismissed.
3. The learned counsel for the petitioner has relied upon the case of Muhammad Shafi versus Deputy Superintendent of Police (PLD 1992 Lahore 178) and maintained that since the forgery was committed before initiation of the civil litigation, the civil and criminal proceedings could continue at the same time. The Full Court at Page 197 observed as under:--
"As the two interpretations of clause (c) of sub-section (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 right of redress must be adopted. On that view of the matter also, the view that clause (c) of sub-section (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."
However, the above view has though been followed in number of cases, yet it appears to be distinguishable as an attempt appears to have been made to make an inroad to circumvent the statutory provision which otherwise requires to be interpreted on the established principles of statutory interpretations. Moreover, the reasoning given in para 21 of the judgment also suffers from legal infirmity. The Full Bench in para 21 of the judgment held as follows:--
"21. Now can it be said that the offence of forgery was against the administration of justice in a case in which the offence was committed, say, ten to twenty years before the suit in which the forged document was produced or given in evidence? The answer must obviously be in the negative. The forger must have, before the suit, used the forged document on a number of occasions in deceiving a number of persons. And when his fraud and forgery came to light and the real owner or the persons defrauded were preparing to take criminal proceedings, he hit upon the clever device of instituting a civil suit and producing the forged document in the civil suit. He would, then, on the view contended for by the petitioner, be able to say: `Well, I have produced the document in the Civil Court; you have to wait till that Court has finally decided the genuineness or otherwise of the document, for unless that is done, that Court will not be in a position to say whether an offence of forgery was committed or not and to lodge a complaint under Section 195'. Unfortunately, civil suits usually take very long to decide and, in practical terms, it may amount to completely defeating the ends of justice. On this view, therefore, the Civil Courts will become a place for the protection of criminals. This obviously could not have been the intention of the law. The cause of action for proceeding against the forger arose immediately when the offence of forgery as defined in Section 463 of the P.P.C., was committed. The commission of that offence was not only intended to deprive the real owner of his property but had also enabled the forger to deceive others and to deprive them of money. No proceedings were pending in any Court at that time. There was, therefore, no question of the offence, at the date of its commission, being against the Court or the administration of justice; nor did it, then, in any way sully the proceedings of the Court, for none were pending."
4. The ratio decidendi as reproduced above appears to be contrary to the view taken by their Lordships while rendering judgment in the case of Abdul Wahab Khan vs. Muhammad Nawaz and others (2000 SCMR 1904) wherein it was held that it was only for the Court to report an offence under Section 195(1)(c) Cr.P.C., as it necessarily related to obstructing and impeding the course of justice and had direct impact on the judicial process. It was observed as under:--
"8. We have also dealt with the provisions as contained in Section 195, Cr.P.C., to see that up to what extent it does constitute a bar in such-like cases and whether appellant was competent to file the complaint against respondents who all were Government officials. The general rule is that any person irrespective of the fact whether he is aggrieved or not and his interest is at stake or otherwise having knowledge about the commission of any offence may set the law in motion but the provisions as contained in sections 195 Cr.P.C. to 198, Cr.P.C. contain exceptions to the said general rule from taking cognizance of certain offences unless the functionary concerned institutes a complaint. It is well-settled by now that "provision of Section 190 Cr. P. C. lays down the general rule that any person can set the criminal law in motion but Section 195, Cr.P.C. is one of the exceptions to that rule Provision of Section 195, Cr.P.C. provides that, in case offence under Section 195, Cr.P.C. only the public authority concerned and Court has the right to file a complaint and unless there is a complaint by such public authority or Court, as the case may be, no Criminal Court shall take cognizance of these offences--Every offence mentioned in Section 195, Cr.P.C. though affects a private person, yet he stands deprived of his general vested right to have recourse to the criminal law. The purpose of enacting Section 195, Cr.P.C. has long been well-identified. It may at the best be considered in the context of sections 190, 476 and 476-A of the Code. Section 190 lays down the general rule that any person can set the criminal law in motion and Section 195 is one of the exceptions to that rule. The latter says that in the category of cases mentioned in its clause (a), only the public authority concerned and in the category of case mentioned in clauses (b) and (c) only the Court concerned has right to file a complaint and unless there is a complaint by such public authority or Court, as the case may be, no criminal Court shall take cognizance of these offences. Thus, though every offence mentioned in Section 195 must necessarily affect private person, yet he stands deprived of his general vested right to have recourse to the criminal law. One must naturally ask--what is the reason for so depriving him? To deprive a person of his right to redress is a strong thing and there must needs be strong reasons or legislative purpose behind it. These offences have been selected for the Court's control because of their direct impact on the judicial process. It is the judicial process, in other words, the administration of public justice which is the direct and immediate object or victim of those offences and it is only by misleading the Courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realized. As the purity of the proceedings of the Court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complainant against the guilty party." There is no cavil to the proposition "it seems to follow inexorably that clause (c) of Section 195 (1) will fail in its object if the literal construction contended for by the petitioner' counsel is adopted. The adoption of that construction will inevitably result in extending the application for clause (c) to cases to which it was not, and could not be intended to apply. The purposive approach to the interpretation of clause (c) of Section 195 (1) on the other hand leads and leads ineluctably, to the construction that clause applies to only those offences that have a "close nexus between the offence and the proceedings"; in other words, it "contemplates cases of tampering with the documents on the record of a Court or cases of previously forged documents being used as genuine in certain proceedings." This view is reinforced by the following observation of the Select Committee who drafted this clause in 1923:--
"In short, Section 195 now deals with limitations that exist to the cognizance of offences by a Court. While if a Court before whom (the underlining is mine) an offence mentioned in Section 195 is committed wants to take action against the delinquent, it can only proceed under Section 476."
9. In the light of touchstone of the criterion as discussed herein above we have examined question of alleged forgery and tampering with judicial files as alleged by the complainant and in our considered view it attracts the provisions as contained in Section 195(c), Cr.P.C. and complaint could have been filed by "Court concerned" against the delinquents who were party in the proceedings. It is an admitted feature of the case that the complainant was neither the "Court concerned" nor "party in the proceedings" which were being conducted in the Court. It is worth mentioning that the appellant was substituted with Mr. Nasrullah Khan, Magistrate who had taken over his charge on 16th February, 1984 and, therefore, the complaint could have been filed by him. It hardly needs any elaboration that "a Court continues to be a Court notwithstanding the change of Presiding Officer and consequently a successor in office is equally competent to make a complaint in respect of offence committed before his predecessor". (PLD 1976 Pesh. 64 + AIR 1940 Lah. 242 (DB) + AIR 1928 Lah. 759) and after taking over Mr. Nasrullah Khan alone was competent to do the needful and not the complainant."
5. The dictum laid down by the Hon'ble Supreme Court shows that the distinction drawn by the Full Bench in PLD 1992 Lah. 178 was of little significance. Following the dictum laid down by the Hon'ble Supreme Court, it appears that the order passed by the learned Justice of Peace was unexceptionable, to the extent of offence complained of relating to forgery.
6. However, the learned Justice of Peace failed to notice another aspect of this case. The complainant had not only made grievance of offences as enumerated in Section 195(1)(c), he had also alleged an offence of cheating and prayed for registration of case under Sections 419 and 420 of the PPC. Offences under the said sections are distinct from the offence of forgery. These offences do not fall within the purview of Section 195(1)(c) Cr.P.C. In Amin Ahmad Khan vs. The State (NLR 1987 Criminal 732) it was held that offences under Sections 419 and 420 being distinct offence the proceedings could continue and the bar contained in Section 195 (1) (c) Cr.P.C. was not applicable. Similarly in Bashir Ahmad vs. State (1999 YLR 2386) it was held that the bar contained in Section 195(1)(c) was not operative in case of offences under Sections 419 and 420 of the PPC.
7. The resume of the above said judgments amply shows that the order passed by the learned Justice of Peace, impugned herein is not sustainable to this extent. The offence complained of under Sections 419 and 420 of the PPC being distinct offence from the offence of forgery, the learned Justice of Peace was not justified in passing the impugned order. Therefore, the Respondent No. 1 is directed to receive the complaint of the petitioner and if a cognizable offence is made out he shall register a case against the delinquents. With this direction this, petition is disposed of.
(R.A.) Petition disposed of.
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