Sunday, 25 October 2015

To secure the ends of Justice High Court can pass any order

PLJ 2011 Cr.C. (Peshawar) 978
[D.I. Khan Bench]
Present: Sher Muhammad Khan, J.
MIR QASIM KHAN--Petitioner
versus
Syed ZAFAR ALI SHAH and 6 others--Respondents
Crl. M. Q.P. No. 97 of 2009, decided on 14.10.2010.
Acquittal--
----Acquittal means, a judgment given by a judge or jury that somebody is not guilty of a charge or accusations.      [P. 982] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Inherent powers--High Court u/S. 561-A Cr.P.C. has inherent powers to make such orders as can be necessary to give effect to any order or prevent abuse of process of any Court or otherwise to secure the ends of justice--Inherent jurisdiction is the residual, automatic and ex-officio authority of Court of law to regularize proceedings--It may be described as the unwritten power without which the Court is unable to function with justice and good reason.    [P. 982] B
Inherent Jurisdiction of Court--
----Jurisdiction of the Court which is comprised within the term inherent is that which enables it to fulfill itself, properly and effectively, as a Court of law--The overriding feature of the inherent jurisdiction of the Court is that it is a part of procedural law, both civil and criminal, and not a part of substantive law--It is exercisable summoning process, without primary trial--It may be invoked not only in relation to parties in pending proceedings, but in relation to anyone, whether primary or not, and in relation to matters not raised in the litigation between the parties--To summarize, it may be said that, "inherent jurisdiction" of the Court is a virile and viable doctrine and has been defined as being the reserve or fund of powers, as residual source of powers, which the Court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a just trial between them--Therefore, the High Court can exercise the power without any application from any side, upon any information brought before it.  [P. 983] C
Forged document--
----Criminal prosecution in such like cases can be launched only by the Court before whom a forged document is pending or can be lodged by a person who has been deprived as a result thereof and that too, much prior to the institution of the suit and production of document in the Court.          [P. 984] D
2006 SCMR 1920, 1999 MLD 2243, PLD 1992 Lahore 178.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 195(1)(c)--Cognizance of offence-Under Section 195(1)(c) Cr.P.C. the offences, cognizance of which cannot be taken by the Courts except on the companies in writing of such Court or of some other Court to which such Court is subordinate, does not include Section 467 PPC--Quashment petition allowed.            [P. 984] E
Sh. Iftikhar-ul-Haq, Advocate for Petitioner.
Mr. Asghar Ali Khan, Advocate for Respondents.
Mr. Muhammad Farooq, Advocate on behalf of State.
Date of hearing: 14.10.2010.
Judgment
Relevant facts for deciding the instant quashment petition are that petitioner filed private complaint in the Court of Illaqa Magistrate against respondents, alleging therein that respondent, on the basis of forged special power of attorney has filed civil suit against him and dragged him into illegal, uncalled for and fictitious litigation in Civil Court.
2.  The learned Magistrate after recording the statement of petitioner under Section 200 Cr.P.C., marked the complaint to SHO Police Station, Cantt Bannu for conducting inquiry under Section 202 Cr.P.C., who accordingly conducted inquiry and submitted his report to the learned Magistrate. Respondents attended the Court of Magistrate in pursuance of summons issued to them.
3.  Respondents submitted an application before the Magistrate under Sections 249-A/195(1)(c)/476 Cr.P.C. and questioned the maintainability of the complaint on legal grounds, however the learned Magistrate rejected their application and directed the parties to appear before learned "Sessions Judge, Bannu on 03.09.2008 for further proceedings as the section of laws i.e. 467/476 PPC, with which respondent was charged is exclusively triable by the Court of Sessions.
4.  The learned Sessions Judge entrusted the complaint to learned Addl: Sessions Judge-II, Bannu, who was pleased to send back the complaint to the learned Judicial Magistrate, after deleting Sections 476 and 467 PPC by holding that the same Sections of law are not attracted to the allegations leveled against respondents and rest of the Sections are within the jurisdiction of learned Magistrate.
5.  The order of learned Additional Sessions Judge-II, Bannu dated 29.04.2009 was impugned before this Court through Quashment Petition No. 57 of 2009, which was dismissed vide order dated 08.06.2009 with observations that the trial Court should give fresh decision regarding the applicability of correct Sections of law after hearing the parties, strictly in accordance with law and on merits.
6.  The complaint was remanded back to the learned Judicial Magistrate-VI, Bannu for deciding the same on merits in accordance with law. The learned trial Court / Judicial Magistrate-VI, Bannu vide order dated 18.07.2009, passed detail order in the following manner:
"As discussed above two issues are in consideration before Court. The available record transpires that the plea of respondent regarding dismissal of complaint is without merit and force because unless and until evidence is not recorded and proper opportunity is not given to the parties to produce their evidence the complaint cannot be dismissed, nor the respondent can be acquitted. Thus I hold that the application for dismissal of complaint is pre-mature without merit and therefore is thus turned down.
The perusal of complaint further reveals that it was alleged that fake power of attorney was prepared by the respondent And the intention beyond the same could be transfer of any valuable security/property.
The careful observation of Section 467 will show that whenever forgery is made, which purports to be a valuable security and which purports, to give an authority to any person to make or transfer any valuable security then this section of law is applicable. The word valuable security is defined in Section 30 of Cr.P.C., which denotes a document which is, or purports to be a document whereby any legal right is created, extended, transferred, restricted or extinguished. Thus from definition it is crystal clear that power of attorney can be treated as valuable security because it can be used for the creation of any legal rights and similarly it can be used for the transfer of valuable security.
Thus the nutshell of discussion will be that power of attorney being a document can be used as valuable security for any transfer of rights and thus Section 467 is applicable to the instant complaint. As this section of law is exclusively triable by Court of Sessions therefore the case file be send to Honorable District and Sessions Judge for its entrustment to competent Court of law. The parties are directed to appear there on 22.07.2009."
7.  The above concluding passage borrowed from the judgment passed by the learned Judicial Magistrate-VI, Bannu, bears no ambiguity that certain issues have been decided by learned Magistrate. Firstly the complaint was found maintainable secondly the application of respondents, filed under Section 249-A, Cr.P.C., for acquittal, was dismissed, being premature and without merit, thirdly the learned Magistrate also found that ingredients of Section 467 PPC are fully covered in the allegations leveled against the respondents and fourthly the section of law, applied to the allegations is exclusively triable by learned Court of Sessions, therefore the case file was sent to learned Sessions Judge, Bannu for its entrustment to any competent Court of law.
8.  The learned Sessions Judge, Bannu, this time entrusted the complaint to learned Addl. Sessions Judge-I, Bannu for further proceedings in accordance with law.
9.  Respondents filed revision petition against the order of learned Magistrate dated 18.07.2009 which was also entrusted to the same Court. The learned Additional Sessions Judge-I, Bannu vide order dated 15.09.2009, accepted revision petition filed by respondents and dismissed the complaint of petitioner, holding that the complaint is not maintainable because it could not take cognizance of the alleged offences, on the complaint of Mir Qasim petitioner, under the provisions of Section 195(1)(c)Cr.P.C.
10.  The petitioner is aggrieved with the order of learned Additional Sessions Judge-II, Bannu, hence has filed the instant quashment petition.
11.  Learned counsel appearing on behalf of petitioner argued that the complaint was illegally declared not maintainable and the learned Addl. Sessions Judge failed to appreciate the real essence of Section 195(1) (c) Cr.P.C.
12.  Learned counsel appearing on behalf of respondent objected on the maintainability of quashment petition on the ground that the petitioners, should have filed appeal under Section 417(2) Cr.P.C., for grant of special leave to appeal against the impugned order. He further argued that the learned Addl. Sessions Judge-II, Bannu has passed two separate orders, one on the revision petition filed by respondents and the other on the application of respondents filed under Section 249-A Cr.P.C. for dismissal of the complaint, therefore two separate and distinct orders should have been challenged through separate petitions and not by a single petition. He next argued that the learned Civil Court during proceedings, of Civil Suit and the appellate forum while deciding appeal did not give any findings regarding the alleged forged power of attorney. Therefore, the learned Addl. Sessions Judge-I, Bannu had rightly dismissed the complaint of petitioners declaring it non-maintainable.
13.  I have given my deep thoughts to the facts of the case and legal aspects of the dispute. As in the impugned order merits of the case has not been touched and it has been passed only on legal grounds, therefore, without touching merits of the controversy, the instant quashment petition, is being decided on legal grounds.
14.  Before adverting to the argument of the learned counsel of the petitioner I deem it proper to answer the points raised by learned counsel for the respondents.
15.  The first objection regarding non-maintainability of quashment petition and invoking the appellate jurisdiction of this Court under Section 417(2) Cr.P.C. is concerned, suffice it to say that Section 417 Cr.P.C. deals with appeal against acquittal of the accused on merits or other grounds like exercising the powers under Sections 249-A or 265-K Cr.P.C. but it has nothing to do with maintainability, applicability of certain Sections of law and jurisdictional questions, which could only be decided under Sections 435, 439, 439-A or 561-A Cr.P.C.
16.  Acquittal means a judgment given by a Judge or Jury that somebody is not guilty of a charge or accusations, which is not the findings of the learned Additional Judge-I, Bannu. In the instant case the learned Additional Sessions Judge-I, Bannu has exercised his powers under Section 439-A Cr.P.C. by accepting revision petition of the respondents, therefore, the same powers could not be invoked by petitioner, before this forum. Section 561-A Cr.P.C. empowers the High Court to prevent abuse of process of Court or otherwise to secure the ends of justice and when upon reaching the conclusion that the order passed by a subordinate criminal Court is an abuse of the process of Court, it can rectify the injustice under the inherent powers.
17.  High Court under Section 561-A Cr.P.C. has inherent powers to make such orders as can be necessary to give effect to any order or prevent abuse of process of any Court or otherwise to secure the ends of justice. Inherent jurisdiction is the residual, automatic and ex-officio authority of the Court of law to regularize proceedings. It may be described as the unwritten power without which the Court is unable to function with justice and good reason.
18.  The jurisdiction of the Court which is comprised within the term "inherent" is that which enables it to fulfill itself, properly and effectively, as a Court of law. The overriding feature of the inherent jurisdiction of the Court is that it is a part of procedural law, both Civil, and Criminal, and not a part of substantive law. It is exercisable by summoning process, without primary trial. It may be invoked not only in relation to parties in pending proceedings, but in relation to anyone, whether primary or not, and in relation to matters not raised in the litigation between the parties. To summarize, it may be said that "inherent jurisdiction" of the Court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, as residual source of powers, which the Court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a just trial between them. Therefore, the High Court can exercise the power without any application from any side, upon any information brought before it.
19.  Learned counsel for respondents also wanted to take advantage from the judgment in case of Syed Ghulam Murtaza versus the State 1996 P.Cr.L.J 433 by pleading that prayer for quashing of proceedings can be granted if such proceedings are pending before any forum and not where it has seized to exist. Perhaps the learned counsel of respondents did not read the entire judgment and quoted a selected passage from the judgment referred above without reference to context. In the above cited judgment applicant had died during pendency of his application filed under Section 561-A Cr.P.C., therefore the proceedings against the applicant stood abated automatically on his death therefore the Honourable Karachi High Court held that no order of quashment could be passed with regard to the same which no more existed.
20.  The next argument stressed by learned counsel for the respondents was that the matter is already pending before this Court in revisional jurisdiction under CPC; therefore criminal Courts should not take cognizance of the same issue. I am afraid that if the argument of the learned counsel of respondents is accepted, it will provide complete indemnity to persons committing fraud and forgery in judicial proceedings and Sections 195 & 476 Cr.P.C. will become practically redundant.
21.  Now coming to the impugned order passed by learned Additional Sessions Judge-I, Bannu. As stated above the learned Magistrate, while deciding application of respondents filed under Section 249-A Cr.P.C. hold that the complaint of petitioner is maintainable, the ingredients of Section 467 PPC are fully attracted, application filed under Section 249-A Cr.P.C. is premature and without merits and the section of law i.e. 467 PPC is exclusively triable by Court of Sessions, therefore, it was referred to learned Sessions Judge, Bannu for onward entrustment to any other competent Court.
22.  Secondly, the alleged offence was committed before the institution of suit outside the Court and the alleged forged document was used in evidence in the Civil Court, which was brought into its notice through private complaint. Criminal prosecution in such like cases can be launched only by the Court before whom a forged document is pending or can be lodged by a person who has been deprived as a result thereof and that, too, much prior to the institution of the suit and production of document in the Court. Guidance has been sought from the dictums laid down by Apex Court in the case of Hidayatullah & others versus the state through Advocate General NWFP 2006 SCMR 1920 and of Honourable Lahore High Court, titled Mahabat Khan & 5 others versus Senior Superintendent of Police & 5 others 1999 MLD 2243 & MuhammadShafi versus Deputy Superintendent of Police (Malik Gul NawazNarowal & 5 others PLD 1992 Lahore 178.
23.  Another aspect in the above mentioned scenario to be taken into consideration is that normally the Judicial Officers, due to rush of work or other engagements, hardly find any time to scrutinize each and every document placed on judicial files. There should be some one from the staff or the litigants who should bring such like malpractices into the notice of the Judicial Officer who should either under Section 476 Cr.P.C. take cognizance himself and try the offender or under Section 195 Cr.P.C. send the same to any other competent Court for taking cognizance.
24.  As stated above the Magistrate, on the information conveyed to him by petitioner, took cognizance of the matter and started proceedings in accordance with law but before framing charge, it came to his notice that the offence is triable by the Court of Sessions, therefore the complaint was referred to learned Sessions Judge, Bannu for further proceedings. The learned Additional Sessions Judge-I, Bannu should have treated it to have been lodged before him by the Magistrate himself and should have been decided it on merits because the question of maintainability etc. has already been decided by Magistrate in his order dated 18.07.2009.
25.  There is one another aspect to be noted that under Section 195(1)(C) Cr.P.C. the offences, cognizance of which cannot be taken by the Courts except on the complaint in writing of such Court or of some other Court to which such Court is subordinate, does not include Section 467 PPC.
26.  In the light of what has been stated above I accept the instant quashment petition, the impugned order dated 15.09.2009 passed by learned Additional Sessions Judge-I,Bannu in Complaint No. 5 of 2007 are declared illegal, void, without lawful authority, therefore are set aside and the case is remanded back to the learned Additional Sessions Judge-I, Bannu with the direction to decide the same strictly on merits after following the entire legal procedure, provided in Cr.P.C.
(A.S.)   Petition accepted.

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