PLJ 2013 Islamabad 26
Present: Noor-ul-Haq N. Qureshi,
J.
RIZWAN KHAN--Petitioner
versus
STATE and 2
others--Respondents
W.P. No. 14-Q of
2012, decided on 29.6.2012.
Constitution of Pakistan,
1973--
----Art.
199--Criminal Procedure Code, 1898 S. 561-A--Pakistan Penal Code, (XLV of 1860)
Ss. 420, 468, 471, 34 & 249-A--Quashing of FIR--forged agreement of sale
was prepared and produced in civil suit--Application u/S. 249-A, Cr.P.C. was dismissed--Petitioner instead of preferring
revision application before Session Court, directly filed
petition--Validity--FIR itself showing an offence committed by accused connivancely by forging signatures of complainant when he
was abroad, for which, he produced passport showing his entry in Pakistan,
therefore, apparently strong evidence he had produced, thereby disputed
document i.e. agreement for sale was appeared to be forged document--Whereby
complainant had only informatively mentioned in FIR that such agreement was
submitted in Civil Court with suit during proceedings, rest of contents of FIR
alleging character of the accused with regard to commission of offence--Offence
committed by accused while producing forged agreement before Court was distinct
offence related to Court proceedings but same could be taken into task by Court
when it will be observed as a forged document--If Civil Court before whom suit
was instituted if reached to conclusion that document produced before it was
forged then it will be referred to same Court where challan
of instant case was submitted, it will depend upon trial Court either to
amalgamate both case together with each other or may try same as separate
offences--Such verge can move quashment in case if
observed violation of law which create grounds of abuse of process of
law--Application was dismissed. [Pp.
31 & 32] B, C, D & F
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss. 173
& 195--Jurisdiction--Two separate offences--One was committed with Court
for which Court has to formed an opinion and thereupon to submit complaint
before Court of competent jurisdiction, the other one was forging document, for
which after a lengthy probe through investigation was conducted and after
completing same report u/S. 173, Cr.P.C. was
submitted which was pending adjudicated before competent Court having
jurisdiction to try the offence. [P.
32] E
Constitution of Pakistan,
1973--
----Art.
10-A--Fair trial--Right of accused--It is duty casting
upon Court to provide every opportunity to accused for conducting fair trial,
which was neither denied nor alleged. [P.
31] A
Criminal
Procedure Code, 1898 (V of 1898)--
----Ss. 195, 403
& 476--Double punishment--When only application moved before Civil Court
for taking action u/S. 476, Cr.P.C. which correspond
exercise of S. 195, Cr.P.C. was not initiated--No
question of double punishment or double jeopardy had yet been came in field--No
bar provided by law about registration of cases, but double punishment in same
offence was protected by Art. 13 of Constitution. [Pp. 32 & 33] G & H
Mr. Zahid Asif Chaudhry,
Advocate for Petitioner.
Date of hearing:
29.6.2012.
Order
Through the
instant criminal petition under Section 561-A Cr.P.C.,
petitioner seeks quashment of FIR No. 133, under
Sections-420/468/471/34, PPC registered at Police Station Margalla,
Islamabad and order passed by learned Judicial Magistrate, Islamabad,
dismissing the application under Section 249-A, Cr.P.C.
moved by the petitioner.
2. Brief facts as narrated in the petition that
a civil dispute in shape of Suit No. 296 of 2009 filed by wife of Mushtaq Ahmad against the complainant is pending before
learned Senior Civil Judge, Islamabad.
Allegedly, a forged agreement of sale of the house of complainant was prepared
and produced in the said suit by Gul Zahida Akhtar. The complainant
after a sufficient period lodged FIR under crime number and section referred
above with the following story narrated therein.
3. The complainant used to reside in Briton. He
purchased House No. 919, Sector I-10/1, Islamabad
transfer letter issued in his name on 05.4.2002. On request of Mst. Gul Zahida
Akhtar, upper portion was given to her for residence,
whereas lower portion leased out through attorney Sabir
Hussain on rent. Allegedly Mst.
Gul Zahida Akhtar and her husband connivancely
designed a plan compelled the tenant to leave the house and by showing
themselves rented out lower portion passing Rizwan
himself as owner of the house. On his application moved through Overseas
Pakistan Government, an inquiry was conducted to which, Mst.
Gul Zahida Akhtar disclosed oral agreement, whereas now they have
disclosed a forged agreement connivancely prepared by
accused cited in the FIR, on the date was said to have been prepared, the
complainant was outside Pakistan and signatures thereon are forged (copy of
Passport produced). Also they filed civil suit in the Civil Court on the basis of forged
agreement in order to usurp the property. (Photocopy of forged agreement was
attached). Said application was entertained and finally FIR bearing crime
Number No. 133 was registered at Margalla Police
Station.
4. After usual investigation, inquiry report
under Section 173 was submitted. At the trial, the accused moved an application
under Section 249-A, Cr.P.C. which was dismissed vide
order dated 29.03.2012 by the learned Judicial Magistrate Section-30, Islamabad. The petitioner
instead of preferring revision application before the Sessions Court, directly filed the instant criminal petition seeking quashment of the FIR/proceedings.
5. Learned counsel for the petitioner argued
that civil suit was filed by Mst. Gul
Zahida Akhtar wife of Mushtaq Ahmad on 06.4.2009, wherein the
defendant/complainant moved an application under Section 476, Cr.P.C. on 25.7.2009. He further argued that after moving
an application under Section 476, Cr.P.C. on
25.7.2009. The complainant also lodged FIR on 10.3.2010, therefore, following
the procedure laid down under Section 195 Cr.P.C.,
registration of FIR is an illegal process as once a document is produced in
Court unless a final verdict of Court to that document has not been set-forth,
the allegation in shape of FIR cannot be levelled as
it is a question to be determined by the Civil Court with regard to the
genuineness of the document.
6. He further argued that on one side,
application under Section 476, Cr.P.C. is moved by
the same complainant and on other side, he has lodged FIR, therefore, in view
of Article-13 of the Constitution of Islamic Republic of Pakistan and Section
403, Cr.P.C. the accused person cannot be jeopardize
twice for the same offence. Besides the facts that it is yet
to be determined finally about the guilt or the innocence of the accused.
He further argued that agreement has not yet been declared forged by any Court
of law nor the complainant has filed a suit for cancellation of the document,
therefore, registration of FIR is pre-mature. He also argued that Rizwan Khan cited as an accused is neither witness, nor
beneficiary or signatory of the document, therefore, his name has been inserted
as scapegoat. He also argued that a photocopy of the agreement is relied upon,
which being secondary piece of evidence is inadmissible unless its original can be secured or produced by the complainant,
allegation on the basis of photocopy cannot be substantiated. In support of
contention raised with regard to the quashment of
case directly, the learned counsel for the petitioner has produced following
case law:--
1. 1998 SCMR 873 (State through Advocate
General NWFP Peshawar and others Vs. Gulzar Muhammad
and others)
2. 1995 MLD 511 (Syed
Muhammad Awais Shibli Vs. the State)
3. 1987 SCMR 1371 (Muhammad Shafique and others Vs. Abdul Hayee
and others)
4. PLD 1993 Quetta 113 (Habib Ullah Vs. Malik
Muhammad Hashim and another)
5. 2000 SCMR 122 (Miraj
Khan Vs. Gul Ahmed and 3
others)
6. PLJ 2000 SC 63 (Miraj
Khan Vs. Gul Ahmed and 3
others)
7. 1983 P.Cr.L.J.
1440, (Muhammad Sharif Vs. Mazharul
Haq and 5 others)
8. NLR 1988 Criminal 33 (Muhammad Siddique Sabir Vs.
Kh. Muhammad Naeem Lone and
the state); and
9. 1980 P.Cr.L.J.
818. (Kazmali Dossa Vs. Faisal Malik and 5 others).
7. Besides the other authorities referred, case
law reported in "1998 SCMR 873, (State through Advocate General NWFP,
Peshawar and others Vs. Gulzar Muhammad and others),
their Lordship have clarified the legal position, whereby learned trial Court
is to be approached first and delay per se is not generally sufficient for
constituting a ground for abuse for the process of Court. In another case law
reported in "PLD 2004 (SC) 298, (Bashir Ahmad
Vs. Zafar-ul-Islam)",
the principal laid down therein that at the first instance, the learned trial
Court is to be approached and in case if application moved under Section 249-A
or 265-K Cr.P.C. is allowed as a result, accused is
acquitted, the acquittal appeal under Section 417 Cr.P.C.
is to be preferred. Whereas application is disallowed, the revision would be
the best course to be agitated in case when such application is declined.
8. Learned counsel for the petitioner also
emphasized a legal aspect while referring Section 195, Cr.P.C.,
which provides that if offence related to the production of document during
proceedings of the Court, only that Court or to whom it is subordinate, as to
submit a plaint, whereupon the concerned Court shall take cognizance of the
offence and no other procedure is prescribed in this regard. Therefore,
registration of the FIR and proceedings initiated thereupon are illegal on the
face of it. In this regard, he produced following case laws:--
1. 1997 MLD 2097 (Muhammad Yaqub Vs. SHO and others)
2. 1999 SD 491 (Iftikhar
Ali Vs. The State and Abdul Hafeez Awan)
3. NLR 1986 Criminal 553 (Mufti Abdul Ghani Shah Vs. The State)
4. 1998 MLD 686 (Muhammad Siddiq Vs. Rashid Ahmad Ch. and
another)
5. 2005 YLR 3186 (Ayyaz
Mehmood Khan Khakwani Vs. Muhammad Ashraf Mohandra, and others)
6. NLR 2000 Criminal 522 (Miraz Khan Vs. Gul
Ahmad and three others)
7. PLD 2005 Lahore 386 (Muhammad Suleman
and others Vs. Abdur Razzaque
and others) and
8. 1998 MLD 686 Muhammad Siddiq Vs. Rashid Ahmad Ch. and
another).
9. Beside the above referred case laws, the
learned counsel for the petitioner also produced some irrelevant case law,
which has absolutely no nexus with the present case as the same relates to
direct complaint filed in this regard. However, the case laws produced are
reproduced hereunder:-
1. PLJ 1989 Cr.C.
(Lahore) 29 (Shaukat Hussain Khan Vs. the State)
2. 2006 P.Cr.L.J.
476 (Lt, Col.
(Rtd) Tariq Latif Vs. Mst. Jamila
Sultana and another)
3. 2000 SCMR 1904 (Abdul Wahab Khan Vs. Muhammad Nawaz and 7 others)
4. 1977 P.Cr.L.J.
546 (Qaim Din and 3 others Vs. The State and another)
5. 1984 P.Cr.L.J.
1340 (Dr. Abdul Aziz Vs. Anwar Khan and 2 others)
6. 1990 P.Cr.L.J.
97, (Ghulam Shabbir and 6
others Vs. The State and another) and
7. NLR 1987 732 (Amir Ahmed Khan Vs. the State etc).
10. Learned counsel for the petitioner also
argued another legal aspect while referring Article 10-A of the Constitution of
Islamic Republic of Pakistan, which provides fair trial, is the right of the
accused.
11. I would like to discuss first the very legal
point with regard to Article 10-A of the Constitution, which is an admitted fact need not be denied and ultimately, it is duty casting
upon the Court concern to provide every opportunity to the accused for
conducting fair trial, which has neither been denied nor alleged.
12. So far the concern of legal position as
alleged while referring Section 195 Cr.P.C., it
become crystal clear that the FIR itself showing an offence committed by the
accused connivancely by forging the signatures of the
complainant when he was abroad, for which, he produced passport showing his
entry in Pakistan, therefore, apparently the very strong evidence he has
produced, thereby the disputed document i.e. agreement for sale is appeared to
be a forged document.
13. Here distinctive feature, which is taken into
consideration, whereby the complainant has only informatively mentioned in the
FIR that such agreement has been submitted in the Civil Court with the suit during
proceedings, otherwise, rest of the contents of the FIR alleging the character
of the accused with regard to the commission of offence specified therein.
14. So far the concern of an offence committed by
the accused while producing the forged agreement before the Court is a total
distinct offence related to the Court proceedings, but same could be taken into
task by the Court concern, when it will be observed as a forged document.
15. Again it remains prerogative of the Court
either to submit a complaint following the procedure laid
down under Section 195 Cr.P.C. or may not. But the
offence of forging document is quite different and using the same as defined by
Section 471 PPC definitely indicated by the complainant by engaging the tenant
extorting money from them in shape of rent by showing themselves as owner of
the property. It is not to be considered as an offence for using the forged
document as genuine in the Court proceedings.
16. Therefore, in my humble view, these are two
separate offences, i.e. one has been committed with the Court, for which, Court
has to formed an opinion and thereupon to submit complaint before the Court of
competent jurisdiction by following procedure laid down under Section 195 Cr.P.C. the other one is forging the document, for which,
after a lengthy probe through investigation, was conducted and after completing
the same report under Section 173 Cr.P.C. has also been
submitted, which is pending adjudicated before the competent Court having
jurisdiction to try the offence.
17. Another legal aspect is yet remained in the
field in case if the Civil Court before whom the suit is instituted if reached
to the conclusion that the document produced before it is forged, then
ultimately, it will be referred to the same Court where Challan
of instant case has been submitted, under such circumstances it will depend
upon the learned trial Court either to amalgamate both the cases together with
each other, or may try the same as separate offences.
18. In my humble view, the petitioner at such
verge can move the quashment in case if he observes
the violation of law, which create grounds of abuse of
process of law.
19. At this stage, when only an application moved
before the Civil Court for taking action under Section 476 Cr.P.C.,
which correspond exercise of Section 195 Cr.P.C. has
not yet been initiated. Therefore, no question of double punishment or double jeopard has yet been came in the
field.
20. There is no bar provided by law about
registration of cases, but double punishment of the same case in respect of the
same offence is protected by Article 13 of the Constitution of Islamic Republic
of Pakistan and Section 403 Cr. P. C., which captioned "once tried
acquitted or convicted not to be tried again".
21. In view of above discussion, I find no merits
in the instant criminal miscellaneous, the same is therefore, dismissed in limine.
(R.A.) Petition
dismissed
