2016 Y L R 2691
Criminal Procedure Code (V of 1898)---
----S. 195---Contempt of lawful authority of public servants, offences against public justice and relating to documents given in evidence---Conditions necessary for applicability of S.195, Cr.P.C.---No cognizance could be taken by any court for such offences, except on complaint in writing of such court where said offences were committed, or some other court to which such court was subordinate---Private person had no authority to file such complaint---Unless there was a complaint by the Officer of the Court, no court could take cognizance of such offences---Criminal prosecution could be launched, only by the court before which a forged document was pending, or could be launched by a person who had been defrauded as a result thereof and that too, much prior to production of that document before the court---Conditions necessary for applicability of S.195, Cr.P.C., were that offences mentioned in the section must have been committed by a party to the proceedings in the court; that such offence should be in respect of a document produced or given in evidence in such proceedings and that said offence fell under Ss.463, 471, 475 or 476, P.P.C.
Anwar-ul-Haq Chaudhry for Appellant.
Nemo for Respondents.
Date of hearing: 4th June, 2014.
IKHTIAR KHAN VS MUHAMMAD HASSAN
2016 Y L R 2691
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ
IKHTIAR KHAN---Appellant
Versus
MUHAMMAD HASSAN and 3 others---Respondents
Criminal Acquittal Appeal No.(s) 73 of 2014, decided on 24/07/2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---Leave to appeal has been sought against the acquittal order dated 10th April, 2014 ("impugned order") passed by the Court of Judicial Magistrate-II, Sibi ("trial court"), whereby accused persons (hereinafter "respondents") were acquitted of the charge in a private complaint under Sections 198, 209, 420, 463, 464, 465, 466, 467, 470, 471 and 34 of the Pakistan Penal Code, 1860 ("P.P.C.") on application under Section 249-A of the Criminal Procedure Code, 1898 ("Cr.P.C.") filed by the respondents.
2.The brief facts of the case are that the respondents filed a Civil Suit No.15 of 2013 before the Senior Civil Judge, Sibi against the appellant on basis of a forged power of attorney allegedly prepared by the respondent No.1 with connivance of respondents Nos.2 and 3, wherein the appellant filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 ("C.P.C.") for rejection of the plaint, whereafter the respondent No.1 withdrew the said suit. The appellant after withdrawal of the suit, filed a private complaint under Section 200 Cr.P.C. before the learned trial court against the respondents. The inquiry was directed and the report whereof was referred to the learned Sessions Judge, Sibi for further proceeding. The learned Sessions Judge, Sibi transferred the case to the trial court on application filed by the respondent, as the alleged offences were exclusively triable by the Judicial Magistrate First class. During the trial, the respondents moved an application under Section 249-A, Cr.P.C., whereby the respondents were acquitted of the charge with the following observation in paragraphs Nos. 8 and 9 of the impugned order:--
"8. After hearing of contention of learned counsel for accused Mr. Sadiq Ghuman Advocate and citations given by learned counsel during arguments, I at the conclusion that provision of section 195, Cr.P.C. clearly prevent a litigant in a civil matter from lodging a criminal complaint regarding alleged manipulation of documents which are the subject matter of said proceedings, as this would be exposed to criminal prosecution by the other side who had challenged the genuineness of such documents.
9. However, it is also clear cut mentioned in 2007 PCr.LJ page 615 That:- lodging a criminal complaint in a civil matter regarding manipulation of documents subject matter of proceedings litigant in a civil matter, was prevented under section 195(1), Cr.P.C. for lodging a criminal complaint regarding the alleged manipulation of documents, which were subject mater of said proceedings... ... ... such a complaint could only be lodged by concerned court after it would come to the conclusion that the documents in question was forged."
The appellant being aggrieved from the impugned order has assailed the same in the instant appeal by seeking leave to appeal against the acquittal of the respondents.
3.The learned counsel for the appellant contended that the respondents had prepared a forged power of attorney but on application under Order VII Rule 11, C.P.C., filed by the appellant, when it was transpired that the signatures of the executants of power of attorney were forged, therefore, respondents withdrew their civil suits. He added that forgery committed by the respondents was proved on record; therefore, they withdrew from their misconceived and fabricated civil suit. He maintained that on application under Section 249-A, Cr.P.C. the respondents were acquitted of the charge in view of bar contained in Section 195, Cr.P.C. He contended that the learned trial court has miserably failed to understand the controversy and by dismissing the complaint the trial court has erred in law. He urged for setting aside the impugned order with prayer to remand the case to the trial court for its disposal in accordance with law.
We have heard the learned counsel and have gone through the record. The controversy involved in the instant appeal revolves around Section 195, Cr.P.C; therefore, the provision being relevant is reproduced here under:--
"195. Prosecution for contempt of lawful authority of public servants: Prosecution for certain offences against public justice: Prosecution for certain offences relating to documents given in evidence. (1) No Court shall take cognizance:
(a)of any offence punishable under sections 172 to 188 of the Pakistan Penal Code except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.
(b)of any offence punishable under any of the following sections of the same code namely sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 288, when such offence is alleged to have been committed in, or in relation to, any proceeding, in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate, or
(c)of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
The language couched in the provision supra clearly imposes an impediment on taking cognizance and begins with the words that, "No court shall take cognizance... ........."
In the referred to provision the subsection (1) clearly prohibits that no cognizance can be taken by any court for offences falling under Section 195, Cr.P.C. except on complaint in writing of such court where said offences are committed or some other court to which such court is subordinate, the private person has no authority to file a complaint, therefore, only public authority concerned and the court has the authority to file the complaint for offences mentioned in sub-clauses (a), (b) and (c) of subsection (1) of Section 195, Cr.P.C. and unless there is a complaint by the officer of the court, no court can take the cognizance of the offences mentioned in provision supra. There is no dispute to the fact that criminal prosecution can be launched only by the court before whom a forged document is pending or can be launched by a person who has been defrauded as a result thereof and that, too, much prior to production of that document before the court, therefore, the conditions necessary for the applicability of Section 195(1)(a), (b) and (c), Cr.P.C. are:--
i)The offence mentioned should be committed by a party to the proceeding in the court;
ii)Such offence should be in respect of a document produced or given in evidence in such proceeding and that said officer fell under sections 463, 471, 475 or 476, P.P.C.
Reference is made to the reported case of Abdul Wahab Khan v. Muhammad Nawaz 2000 SCMR 1904.
Thus, in view of above discussion it can safely be concluded that the complaint filed by the appellant was not maintainable due to non-obstinate clause contained in section 195, Cr.P.C. Therefore, the order passed by the learned trial Court is unexceptional, which does not warrant any interference by this Court.
Therefore, the appeal is dismissed in limine.
HBT/50/BalAppeal dismissed.
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