NAILA JUNAID Versus ADDITIONAL DISTRICT JUDGE

ORDER

1. The brief fact out of which the present petition arises are that respondent No.3 and her son filed a suit for partition against the petitioner in the Court of Civil Judge, Lahore. The present petitioner filed written statement, controverted the allegations the allegations levelled in the plaint and also taken a stand that respondent No.3 had been divorced by her husband before his death with mutual consent of the parties. Respondent No.3 in view of the contents of the written statement withdrew her claim after recording her following statement before the trial Court on 12-12-2003:

2. Urdu 836

3. The petitioner being aggrieved filed an application before the trial Court under section 476, Cr.P.C. to initiate proceedings against respondent No.3 on the ground that respondent No.3 made a false statement and false claim before the Court in the contents of the plaint. The trial Court dismissed the same vide order dated 25-9-2004. The petitioner being aggrieved filed revision petition in the Court of Additional District Judge, Lahore who dismissed the same vide impugned order dated 4-12-2004. Hence this petition.

2. Learned counsel of the petitioner submits that offence under section 209, P.P.C. is committed by respondent No.3 as is evident from the contents of the plaint and subsequent statement of respondent No.3 before the trial Court but this fact was not considered by both the Courts below in its true perspective. He further submits that it is the duty and obligation of the Courts to proceedings against the person who has taken a wrong stand before the Court in the contents of the plaint. He further submits that both the Courts below erred in law to dismiss the application of the petitioner which is not in consonance with the law laid down by the superior Courts.

3. Learned law officer entered appearance on Court's call. He submits that Constitutional petition is not maintainable.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. It is better and appropriate to reproduce section 476(1), Cr.P.C. to resolve the controversy between the parties.

4. "476. Procedure in cases mentioned in section 195 .---(1) When any offence referred to in section 195, subsection (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 take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII."

5. The legislature in its wisdom used the word 'may' which indicates that it is the discretion of the Court to proceed against the person who has made wrong claim before the Court in the contents of the plaint. It is pertinent to mention here that both the Courts below refused to exercise discretion in favour of the petitioner keeping in view the circumstances of the present case. It is admitted fact that both the Courts below have concurrently refused to exercise discretion in favour of the petitioner. Therefore, Constitutional petition is not maintainable as the law laid down by the Honourable Supreme Court in the following judgments:--

6. Khuda Bakhsh v. Muhammad Sharif (1974 SCMR 279).

7. Muhammad Sharif v. Muhammad Afzal Sohail and others (PLD 1981 SC 246).

8. Abdul Rehman Bajwa v. Sultan and others (PLD 1981 SC 522).

9. It is also settled principle of law that this Court has no jurisdiction to substitute its own finding in place of the finding of the Tribunal below while exercising power under Article 199 of the Constitution as the law laid down by the Division Bench of this Court in Mussadaq's case (PLD 1973 Lah. 600). Mere reading of aforesaid section reveals that it is discretion of the Court to take cognizance of the offence or not. Coupled with the fact that provision of law is directory in nature and not mandatory in nature. In arriving to this conclusion I am fortified by the law laid down by the superior Courts in the following judgments:--

10. Arif Manzoor Qureshi's case (2003 YLR 249).

11. Nazar Ahmed Chaudhry's case (PLD 1987 Lah. 214).

12. Hira Lal Sarda's case (AIR 1932 Patna 243).

13. It is settled proposition of law that the Court has to be extra cautious that the prosecution is undertaken in the interest of justice and not to satisfy the private grudge of a litigant as the law laid down by this Court in the following judgments:--

14. Arif Manzoor Qureshi's case (2003 YLR 249).

15. Mian Fazal Ellahi's case (PLD 1970 Lahore 383).

16. It is also settled principle of law that it is essential for the Court to consider whether there is a reasonable probability/certainty for the conviction of the respondent. In case this element is not borne out from the record then proceedings cannot be initiated as the law laid down by the superior Court in the following judgments:--

17. Abdul Rehman's case (PLD 1951 Baghdad-ul-Jadid 85).

18. Arif Manzoor Qureshi's case (2003 YLR 249).

19. Lalanand Lal's case (AIR 1937 Lahore 867)

20. Ramnandan Prasad Narayan Singh's case (Criminal Law Journal Reporter 1921 page 467) equivalent 61 Indian Cases 955

21. It is also settled principle of law that strict proof is required to initiate proceedings against the respondent under provisions of section 476 read with section 209, P.P.C. as the law laid down by the superior Courts in the following judgments:--

22. Hira Lal Sarda's case (AIR 1932 Patna 243)

23. Mst. Zohra's case (1992 MLD 1827).

24. It is also settled principle of law that in case any claim is by made mistake then proceedings under section 476 cannot be initiated against the respondent under section 209 P.P.C. in terms of the law laid down in Moti Lal's case (AIR 1936 Allahabad 164). It is also settled principle of law that it is undesirable that the people should be hampered in their access to the Courts and in getting justice by the fear that if they are unsuccessful they may be prosecuted for defamation as the law laid down by the superior Courts in the following judgments:--

25. Gangoo Mal's case (AIR 1925 Sindh 263).

26. Ghanshamdas Gianchand's case (AIR 1934 Sindh 114).

27. Kalumal Gelomal's case (AIR 1935 Sindh 81).

28. It is also settled principle of law that in case the statement is withdrawn by a witness then proceedings under section 476, P.P.C. cannot be initiated as the law laid down in the following judgments:--

29. M. Liaqat Hussain's case AIR 1946 Allahabad 156)

30. Jairam Singh's case (AIR 1932 Lahore 307).

31. It is also settled principle of law that Constitutional jurisdiction is discretionary in character. Keeping in view the circumstances of this case coupled with the facts that civil suit is still pending adjudication, therefore, I am not inclined to exercise discretion in favour of the petitioner as the law laid down by the Honourable Supreme Court in Nawab Syed Ronaq Ali's case (PLD 1973 SC 236).

32. In view of what has been discussed above, this petition has no merits and the same is dismissed.

33. H.B.T./N-23/L Petition dismissed.