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 24th July, 2014.
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 cognizanc e 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 ther e
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 a s 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 th e 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.
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 sa id 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, Sib i 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 d ocuments 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 do cuments, 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. P rosecution 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 proc eeding 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 cour t 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 subsec tion (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 of ficer 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/Bal Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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