PLJ 2010
[
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
----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
"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."
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.