(a) Criminal Procedure Code (V of 1898)--
---S.195(1)(c)--Penal Code (XLV of 1860), Ss.463, 467 & 468- Expression "any offence described in 5.463, P.P.C." occurring in cl.(c) of subsection (1) of 5.195, Criminal Procedure Code, gives a clear indication that all kinds of fogery were covered by it--Offences under Ss.467 & 468, P.P.C. would also be covered by said cl. (c).
(b) Criminal Procedure Code (V of 1898)--
---Ss.561-A & 195--Penal Code (XLV of 1860), Ss. 419, 420, 205, 468, 471, 34, 467 & 109--Quashing of proceedings--Cognizance of offence--First act of accused, if proved, falling under Ss.419 & 420, Penal Code--Court of Session also taking cognizance of offences under Ss.206, 467, 468 & 471, Penal Code, committed in course of proceedings in High Court on police report--Court barred from taking cognizance of offences punishable under Ss.205, 467, 468 & 471 of Penal Code except on a written complaint of a Court--Court of Sessions, held, could not take cognizance on police report--Offences in respect of Ss.205, 467, 468 & 471, Penal Code in relation to proceedings in High Court were subsidiary to main offence of cheating but offences under Ss.419 & 420, Penal Code, were distinct offences and not subsidiary to offences under Ss.205, 467, 468 & 471, P.P.C.--Act of accused under Ss.419 & 420, P.P.C. not falling within purview of S.195, Cr.P.C. whereas his offences under 56.205, 467, 468 & 471, Penal Code, attracted provisions of S.195, Cr.P.C Proceedings against accused in respect of offences under Ss.205, 467, 468 & 471, Penal Code, quashed in circumstances.
P L D 1966 (W.P.) Kar. 207; A I R 1953 S C 293 and A I R 1939 F C 43 ref.
Gul Zaman Khan for Petitioner (in Criminal Miscellaneous No.876 of 1986).
K.M. Nadeem for Petitioner (in Criminal Miscellaneous No. 76 of 1987).
JUDGMENT
These two Criminal Misc. Applications, under section 561-A, Cr.P.C. are moved for the quashment of criminal case No.223/86 pending before the learned Sessions Judge (South), Karachi. As such I intend to dispose off the same in one judgment.
The facts of the case in brief are, that one Kifayatullah died in the air crash of Saudi Arabia Airlines, who allowed compensation to the legal heirs of the victims of the crash. One application was filed in this Court bearing No.S.M. 86/83, in the name of Mst. Aisha for grant of certificate for the amount of compensation on account of loss of life and luggage of said Kifayatullah. This application was filed through Mr. Ameer Ahmed Khan, Advocate, who is applicant in Criminal Miscellaneous Application No.76 of 1987. Under the orders of this Court complainant, Mr. Shafi Muhammad Roonjho, Nazir of this Court, collected amount of Rs.2,24,000/- from the Saudi Arabian Airlines. Out of this amount Rs.44,000/- were paid by cross-cheque to Mst. Rehmat Bibi, applicant No.2 in Criminal Miscellaneous Application No.879/86, who pretended to be Mst. Aisha and was so identified by Mr. Ameer Ahmed Khan. She also produced photocopy of the National Identity Card No.521-25-4360358. Rupees one lac out of this amount was paid to M/s. Rana Estate Agency for the purchase of plot of land. The remaining amount was deposited in Khas Deposit Certificates. Said Mst. Rehmat Bibi, again approached this Court for release of profit of Khas Deposit Certificates. As her identity was doubted, an inquiry was made from Abdul Quddoos, Councillor, KMC, in whose presence Mst. Rehmat Bibi admitted that her real name was Mst. Rehmat Bibi and she was not mother of Kifayatullah but she was mother-in-law of Shafiullah applicant No.1 in Criminal Miscellaneous Application No.879/86. She further alleged that said Shafiullah and Ameer Ahmed Khan had asked her to pretend to be Mst. Aisha, so that, the amount may be drawn from the Court. Under directions of that, Lord the Chief Justice, Mr. Shafi Roonjho, Nazir of this Court lodged such complaint with Artillary Maidan Police Station on 27-4-1986 and after usual investigation police submitted challan in the Court under sections 419, 420, 205, 468, 471, 34, 467 and 109, PPC.
I have heard the learned counsel for the parties. The main contention of the learned counsel for the applicants is, that the alleged offence, if any was committed in relations to the proceedings pending before this Court and sections 476 and 195, Cr.P.C. provided procedure for taking cognizance in such cases. It is contended that in the instant case, the procedure laid down therein has not been complied with. S.476, Cr.P.C., lays down the procedure when the Court takes cognizance of certain offences committed during the course of proceedings before such Court. The High Court has not taken cognizance in the case, as such this section would not be relevant for the purpose of the decision of these applications.
Section 195 provides, that no Court shall take cognizance of offences specified in clauses 'B' and 'C' and of subsection (1) if the said offences are alleged to have been committed by a party in relation to any proceedings of Court, except on the complaint in writing by such Court or some other Court to which such Court is subordinate.
Admittedly, the cognizance has been taken by the Court of Session on a police report and not on a complaint lodged by the High Court. It may also be pointed, that offence under sections 205 and 471, PPC are specifically described in these two sub-clauses. Sub-clause 'C' of subsection (1) is also made applicable to offences described in section 463, PPC. Section 463 defines forgery. It is, therefore, contended, that offences under sections 467 and 468, PPC which are also kinds of forgery would also be covered by this sub-clause 'C'.
The contentions of the learned counsel, that the offence under sections 467 and 468 would also be covered by clause 'C' of section 195(1), Cr.P.C. appears to be correct. Expression "any offence; described under section 463, PPC" occurring in clause (c) gives al clear indicating, that all kinds of forgery are covered by it.
From the perusal of the prosecution story it appears, that the applicant Mst. Rehmat Bibi is alleged to have committed the following acts:--
(i) To have cheated Saudi Arabian Airlines and or the High Court by impersonating as Mst. Ayesha, mother of deceased, Kifayatullah.
(ii) To have impersonated as Mst. Ayesha Bibi in proceedings it S.M. No.86/1983 in this Court.
(iii) To have forged or used some forged documents in the said proceedings.
These acts are alleged to have been committed by said Mst. Rehmat Bibi in furtherance of common intention of applicants, Shafiullah and Ameer Ahmed Khan, who are also alleged to have abetted her in the commission of said acts.
The acts of Mst. Rehmat Bibi as described at item Nos.2 and 3, above, if proved, would constitute offences punishable under sections 205, 467, 468 and 471, PPC. Apparently, these offences, if any, were committed in the course of proceedings in the Court. Section 195, Cr.P. C. bars the Court from taking cognizance of offences punishable under the above sections except on a written complaint of the Court concerned. Admittedly, no such complaint has been filed by this Court. As such the learned Sessions Judge could not have taken cognizance of these offences on police report.
The first act of Mst. Rehmat Bibi, if proved, would constitute offences punishable under sections 419 and 420, PPC. These offences do not fall within the purview of section 195, Cr. P. C . The question now, is whether the Court could take cognizance of these two offences when the applicants are also charged with offences of which the Court could not have taken the cognizance. It will be pertinant to refer to the relevant case law on the question.
In P L D 1966 (W.P.) Kar. 207 a learned Single Judge two observed as under:-
"The purpose of such provisions which bar the cognizance of an offence falling under a particular statute without the previous sanction of the authority named therein or without a complaint by such authority as the case may be, is to keep such proceedings within the control of public interest. The purpose cannot be allowed to be defeated by restoring to device and camuflage. It is true that there may be a case where a distinct offence is disclosed falling under the Penal Code by the same facts and which could in a proper case be inquired into upon a private complaint because the bar of the special statute would not apply to it but in all such cases care must be taken to see whether the facts disclose primarily and essentially an offence for which a complaint of the officer concerned has been made a condition precedent before cognizance of it is taken. If such be the case then prosecution upon subsidiary facts falling under another provision of law would not be permitted. "
In A I R 1953 S C 293 it is held:-
"Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section but the provisions of that section cannot be evaded by restoring to devices or camuflages. The test whether there is evasion of the section or not is whether the facts disclosed primarily and essentially an offence for which complaint of the Court or of the public servant is required."
In this case reference is made to the case of Hori Ram Singh v. Emperor A I R 1939 F C 43. In that case the charge was, that the accused dishonestly misappropriated or converted to his own use certain medicines entrusted to him in his official capacity and wilfully and with intact to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. He was prosecuted under sections 409 and 477-A, PPC. The cognizance of offence under section 477-A, PPC could not be taken without previous consent of the Governor whereas no such consent was required for taking cognizance of offence under section 409, PPC. Their Lordships held as under:-
The distinct offences having been committed in the same transaction. One an offence of misappropriation under S.409, and the other an offence under S.477-A, which required the sanction of the Governor the circumstances, that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under S.409."
Applying to the principles laid down in the above cases to the facts of the present case, it will be seen, that the prime purpose and intention of the applicants is alleged to commit offences of cheating. They allegedly intended to cheat the Saudi Arabian Airline and/or the High Court of amount in question, and for that purpose the impersonation, forgery and use of forged documents in Court proceedings is alleged to have, been committed by the applicants. Thus, the offences of the impersonation and forgery, in relation to the proceedings in the High Court, were subsidiary to the main offence which was offence of cheating. There can be no doubt, that the offences under Ss.430 and 419, PPC r/w Ss.34, 199 PPC, are distinct offences and not subsidiary to the offences under Ss.205, 467, 468 and 407, FPC which are alleged to have been committed by the applicants and for which the Court could not have taken cognizance except in accordance with provisions of 5.195 Cr.P.C.
Considering all the facts and law, discussed above, I partially allow the Revision Application and quash the proceedings against the applicants under Ss.205, 467, 468 and 471, PPC. The case against the applicants under the remaining sections of Penal Code to proceed without prejudice by this order.
The Revision Application was partially allowed by short order dated 6-4-1987. The above are the reasons in support of the said order.
M . Y . H . /A-96/ KRevision partly allowed.
These two Criminal Misc. Applications, under section 561-A, Cr.P.C. are moved for the quashment of criminal case No.223/86 pending before the learned Sessions Judge (South), Karachi. As such I intend to dispose off the same in one judgment.
The facts of the case in brief are, that one Kifayatullah died in the air crash of Saudi Arabia Airlines, who allowed compensation to the legal heirs of the victims of the crash. One application was filed in this Court bearing No.S.M. 86/83, in the name of Mst. Aisha for grant of certificate for the amount of compensation on account of loss of life and luggage of said Kifayatullah. This application was filed through Mr. Ameer Ahmed Khan, Advocate, who is applicant in Criminal Miscellaneous Application No.76 of 1987. Under the orders of this Court complainant, Mr. Shafi Muhammad Roonjho, Nazir of this Court, collected amount of Rs.2,24,000/- from the Saudi Arabian Airlines. Out of this amount Rs.44,000/- were paid by cross-cheque to Mst. Rehmat Bibi, applicant No.2 in Criminal Miscellaneous Application No.879/86, who pretended to be Mst. Aisha and was so identified by Mr. Ameer Ahmed Khan. She also produced photocopy of the National Identity Card No.521-25-4360358. Rupees one lac out of this amount was paid to M/s. Rana Estate Agency for the purchase of plot of land. The remaining amount was deposited in Khas Deposit Certificates. Said Mst. Rehmat Bibi, again approached this Court for release of profit of Khas Deposit Certificates. As her identity was doubted, an inquiry was made from Abdul Quddoos, Councillor, KMC, in whose presence Mst. Rehmat Bibi admitted that her real name was Mst. Rehmat Bibi and she was not mother of Kifayatullah but she was mother-in-law of Shafiullah applicant No.1 in Criminal Miscellaneous Application No.879/86. She further alleged that said Shafiullah and Ameer Ahmed Khan had asked her to pretend to be Mst. Aisha, so that, the amount may be drawn from the Court. Under directions of that, Lord the Chief Justice, Mr. Shafi Roonjho, Nazir of this Court lodged such complaint with Artillary Maidan Police Station on 27-4-1986 and after usual investigation police submitted challan in the Court under sections 419, 420, 205, 468, 471, 34, 467 and 109, PPC.
I have heard the learned counsel for the parties. The main contention of the learned counsel for the applicants is, that the alleged offence, if any was committed in relations to the proceedings pending before this Court and sections 476 and 195, Cr.P.C. provided procedure for taking cognizance in such cases. It is contended that in the instant case, the procedure laid down therein has not been complied with. S.476, Cr.P.C., lays down the procedure when the Court takes cognizance of certain offences committed during the course of proceedings before such Court. The High Court has not taken cognizance in the case, as such this section would not be relevant for the purpose of the decision of these applications.
Section 195 provides, that no Court shall take cognizance of offences specified in clauses 'B' and 'C' and of subsection (1) if the said offences are alleged to have been committed by a party in relation to any proceedings of Court, except on the complaint in writing by such Court or some other Court to which such Court is subordinate.
Admittedly, the cognizance has been taken by the Court of Session on a police report and not on a complaint lodged by the High Court. It may also be pointed, that offence under sections 205 and 471, PPC are specifically described in these two sub-clauses. Sub-clause 'C' of subsection (1) is also made applicable to offences described in section 463, PPC. Section 463 defines forgery. It is, therefore, contended, that offences under sections 467 and 468, PPC which are also kinds of forgery would also be covered by this sub-clause 'C'.
The contentions of the learned counsel, that the offence under sections 467 and 468 would also be covered by clause 'C' of section 195(1), Cr.P.C. appears to be correct. Expression "any offence; described under section 463, PPC" occurring in clause (c) gives al clear indicating, that all kinds of forgery are covered by it.
From the perusal of the prosecution story it appears, that the applicant Mst. Rehmat Bibi is alleged to have committed the following acts:--
(i) To have cheated Saudi Arabian Airlines and or the High Court by impersonating as Mst. Ayesha, mother of deceased, Kifayatullah.
(ii) To have impersonated as Mst. Ayesha Bibi in proceedings it S.M. No.86/1983 in this Court.
(iii) To have forged or used some forged documents in the said proceedings.
These acts are alleged to have been committed by said Mst. Rehmat Bibi in furtherance of common intention of applicants, Shafiullah and Ameer Ahmed Khan, who are also alleged to have abetted her in the commission of said acts.
The acts of Mst. Rehmat Bibi as described at item Nos.2 and 3, above, if proved, would constitute offences punishable under sections 205, 467, 468 and 471, PPC. Apparently, these offences, if any, were committed in the course of proceedings in the Court. Section 195, Cr.P. C. bars the Court from taking cognizance of offences punishable under the above sections except on a written complaint of the Court concerned. Admittedly, no such complaint has been filed by this Court. As such the learned Sessions Judge could not have taken cognizance of these offences on police report.
The first act of Mst. Rehmat Bibi, if proved, would constitute offences punishable under sections 419 and 420, PPC. These offences do not fall within the purview of section 195, Cr. P. C . The question now, is whether the Court could take cognizance of these two offences when the applicants are also charged with offences of which the Court could not have taken the cognizance. It will be pertinant to refer to the relevant case law on the question.
In P L D 1966 (W.P.) Kar. 207 a learned Single Judge two observed as under:-
"The purpose of such provisions which bar the cognizance of an offence falling under a particular statute without the previous sanction of the authority named therein or without a complaint by such authority as the case may be, is to keep such proceedings within the control of public interest. The purpose cannot be allowed to be defeated by restoring to device and camuflage. It is true that there may be a case where a distinct offence is disclosed falling under the Penal Code by the same facts and which could in a proper case be inquired into upon a private complaint because the bar of the special statute would not apply to it but in all such cases care must be taken to see whether the facts disclose primarily and essentially an offence for which a complaint of the officer concerned has been made a condition precedent before cognizance of it is taken. If such be the case then prosecution upon subsidiary facts falling under another provision of law would not be permitted. "
In A I R 1953 S C 293 it is held:-
"Section 195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section but the provisions of that section cannot be evaded by restoring to devices or camuflages. The test whether there is evasion of the section or not is whether the facts disclosed primarily and essentially an offence for which complaint of the Court or of the public servant is required."
In this case reference is made to the case of Hori Ram Singh v. Emperor A I R 1939 F C 43. In that case the charge was, that the accused dishonestly misappropriated or converted to his own use certain medicines entrusted to him in his official capacity and wilfully and with intact to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. He was prosecuted under sections 409 and 477-A, PPC. The cognizance of offence under section 477-A, PPC could not be taken without previous consent of the Governor whereas no such consent was required for taking cognizance of offence under section 409, PPC. Their Lordships held as under:-
The distinct offences having been committed in the same transaction. One an offence of misappropriation under S.409, and the other an offence under S.477-A, which required the sanction of the Governor the circumstances, that cognizance could not be taken of the latter offence without such consent was not considered a bar to the trial of the appellant with respect to the offence under S.409."
Applying to the principles laid down in the above cases to the facts of the present case, it will be seen, that the prime purpose and intention of the applicants is alleged to commit offences of cheating. They allegedly intended to cheat the Saudi Arabian Airline and/or the High Court of amount in question, and for that purpose the impersonation, forgery and use of forged documents in Court proceedings is alleged to have, been committed by the applicants. Thus, the offences of the impersonation and forgery, in relation to the proceedings in the High Court, were subsidiary to the main offence which was offence of cheating. There can be no doubt, that the offences under Ss.430 and 419, PPC r/w Ss.34, 199 PPC, are distinct offences and not subsidiary to the offences under Ss.205, 467, 468 and 407, FPC which are alleged to have been committed by the applicants and for which the Court could not have taken cognizance except in accordance with provisions of 5.195 Cr.P.C.
Considering all the facts and law, discussed above, I partially allow the Revision Application and quash the proceedings against the applicants under Ss.205, 467, 468 and 471, PPC. The case against the applicants under the remaining sections of Penal Code to proceed without prejudice by this order.
The Revision Application was partially allowed by short order dated 6-4-1987. The above are the reasons in support of the said order.
M . Y . H . /A-96/ KRevision partly allowed.
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