Saturday, 18 October 2014

Section 195 and 476 do not bar police to lodge FIR

PLJ 2014 Lahore 1107
[Rawalpindi Bench Rawalpindi]
Present: Abdus Sattar Asghar, J.
RASHID JAVED & others--Petitioners
versus
STATE, etc.--Respondents
W.P. Nos. 1722 & 1703 of 2013, decided on 13.5.2014.
----Ss. 195(1)(c) & 476(1)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Forged and fabricated documents were used--Application against petitioner and marginal witnesses of iqrarnama sought criminal action--Scope of cognizance of offence--Police was bound to register case without permission of any Court--Validity--It is established by now that Section 195(1)(c), Cr.P.C. is not applicable to cases in which forgery was allegedly committed before institution of suit or other proceedings in which forged document was produced or given in evidence--In such cases police is bound to register the case in terms of Section 154, Cr.P.C. without permission of any Court if such statement of complainant discloses any cognizable offence--Provisions of Sections 195(1)(c) and 476(1), Cr.P.C. do not create any bar to set in motion process of registration of criminal case where forgery was allegedly committed before institution of suit in which forged document was given in evidence.    [P. 1110] A & B
Malik Atta Rasool Joyia, Advocate for Petitioner (in W.P. No. 1722 of 2013).
Nemo for Petitioners (in W.P. No. 1703 of 2013).
Mr.Ameer Mustafa AAG for State.
Mr.Sharafat Mahmood, Advocate for Complainant.
Date of hearing: 13.5.2014
Judgment
Through this composite judgment I intend to decide this Writ Petition No. 1722-2013 lodged by accused Rashid Javed (to be called hereinafter as Petitioner No. 1) and connected Writ Petition No. 1703-2013 lodged by accused Malik Wajid Khan (to be called hereinafter as Petitioner No. 2) seeking quashing of FIR No. 457/2013 dated 22.6.2013 under Sections 420, 468, 471, PPC registered at Police Station Civil Lines Rawalpindi lodged on the application of Aamir Shahzad (to be called hereinafter the complainant).
2.  Brief facts relevant for decision of these writ petitions are that Rashid Javed Petitioner No. 1 lodged a suit for recovery of Rs.24,00,000/- against Aamir Shahzadcomplainant. In the said suit petitioner had claimed recovery of Rs.4,00,000/- as outstanding amount of loan allegedly given to the respondent and a sum of Rs.20,00,000/- as damages for loss of business and mental torture which was dismissed by the learned Civil Judge 1st Class Rawalpindi vide judgment and decree dated 18.2.2013. During the course of evidence in the said suit Petitioner No. 1 had produced an Iqrarnama No. 3716 dated 17.10.2006 (Exh.P1) allegedly executed by the complainant Aamir Shahzadwho categorically denied the execution of the said document. The learned Civil Judge scrutinizing the ocular and documentary account with regard to the genuineness of the said document maintained that the same was forged and fabricated. During the pendency of civil suit learned counsel for the complainant had also lodged an application under Section 476, Cr.P.C. against the petitioner seeking criminal action against the petitioner and the marginal witnesses of the said Iqrarnama for preparing and using the forged and fabricated document. The learned Civil Judge while dismissing the petitioner's suit also disposed of the application under Section 476, Cr.P.C. in the following manner:--
"14.  Learned counsel on behalf of defendant has filed an application U/S. 476, Cr.P.C. against the plaintiff and witnesses of Iqrarnama Ex P-l. As the main suit for the plaintiff is dismissed defendant/petitioner is at liberty to proceed against the plaintiff etc separately through any other remedy which was sought by him. The above said application is considered as part of main file and the same is disposed off accordingly."
Consequently Aamir Shahzad complainant lodged the questioned FIR against the petitioners Rashid Javed and Malik Wajid Ali.
3.  No one appeared on behalf of the petitioner Malik Wajid Ali. Learned counsel for the petitioner Rashid Javed argues that the FIR is lodged violative to the provisions of Section 195(1)(c), Cr.P.C. and thus liable to set aside. In support of his contention learned counsel for the petitioner has taken reliance upon (iMansab Ali vs. Amir and 3 others (PLD 1971 Supreme Court 124), (ii) Muhammad Ashfaq vs. The State and 2 others (PLJ 2010 Lahore 506), (iii) Ghulam Shabbir and 6 others vs. The State and another (1990 P.Cr.L.J. 97 Lahore), (iv) Abdul Ghafoor vs. The Stated 1984 P.Cr.LJ. 381 Lahore) (v) Nusrat Hussain and others vs. The State (1986 P.Cr.L.J. 1218 [Karachi]) (vi) Abdul Wahab Khan vs. Muhammad Nawaz and 7 others (2000 SCMR 1904).
4.  It is resisted by learned counsel for the complainant Aamir Shahzad with the contentions that execution of the impugned iqrarnama as alleged by the petitioner pertains to the date 17.10.2006 i.e. much prior to the institution of the civil suit for recovery lodged by the petitioner on 16.1.2009; that in the attending circumstances Section 195(1)(c),Cr.P.C. does not attract and that complainant was competent to lodge the above said FIR. He has taken reliance upon (i) Muhammad Shafi vs. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178), (ii) Zulfiqar Ali vs. Arshad Mahmood, Magistrate 1st Class Kabirwala and 2 others (2005 YLR 1316 Lahore), (iii) Haji M. Ismail vs. The State etc (NLR 1996 Criminal 140 Lahore).
5.  Arguments heard. Record perused.
6.  At the outset it may be expedient to reproduce the relevant provisions of Section 195(1)(c) and Section 476(1) of Criminal Procedure Code, 1898 Which reads below:--
"Section 195.--Prosecution for contempt of lawful authority of public servants: Prosecution for certain offences against public justice: Persecution for certain offences relating to documents given in evidence.--(1) No Court shall take cognizance
(a)        ---------------
(b)        -----------------
(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.
Section 476.--(1) When any offences referred to in Section 195, sub-section (1) clause (b) or clause (c), has been committed in, or in relation to a proceeding in any Civil, Revenue or Criminal Court, the Court may taken cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII."
Bare reading of the afore quoted provisions of Section 195(1)(c) of Cr.P.C. reveals that the same deals only with taking of cognizance of an offence by the Court and it does not place any embargo upon reporting of alleged forgery to the police for registration of FIR with regard to conducting of investigation in respect of such an allegation. The said provision therefore does not impose any prohibition on registration of any criminal case. It is so held by the Hon'ble Supreme Court of Pakistan in the case of (i) Industrial Development Bank of Pakistan and others vs. Mian Asim Fareed and others (2006 SCMR 483), and (ii) Muhammad Nazir vs. Fazal Karim and others (PLD 2012 Supreme Court 892).
7.  It is established by now that Section 195(1)(c), Cr.P.C. is not applicable to the cases in which forgery was allegedly committed before the institution of the suit or other proceedings in which the forged document was produced or given in evidence. It is so held in the case of Muhammad Shafi (supra). In such cases police is bound to register the case in terms of Section 154, Cr.P.C. without permission of any Court if such statement of complainant discloses any cognizable offence. Provisions of Sections 195(1)(c) and 476(1), Cr.P.C. do not create any bar to set in motion the process of registration of criminal case where the forgery was allegedly committed before the institution of the suit in which forged document was given in evidence.
8.  I have carefully gone through the facts of the cases cited by learned counsel for the petitioner which are altogether distinct and distinguishable from the facts of this case,therefore, the dictum laid down in the cited cases is not helpful to the petitioners.
9.  For the above reasons I do not find any legal infirmity or jurisdictional error in registration of the impugned FIR. Petitioners have no case for quashing of FIR and resultantly both the above captioned writ petitions are dismissed.

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