ABDUL GHAFOOR Versus STATE

ORDER

This criminal miscellaneous petition has been filed under section 564-A of the Criminal Procedure Code for quashment of proceedings pending against the petitioner in the Court of City Magistrate, Sargodha on a police challan submitted under sections 419, 420/468;'471 and ' 209, P. P. C.

2. The facts as narrated by the petitioner are that in the course of proceedings before a learned Civil Judge at Sargodha, the petitioner had produced an agreement for arbitration, which had been questioned to be a forged document and the same is being examined by the civil Court in proceedings under section 476, Cr. P. C. Despite this, an F. I. R. was lodged against the petitioner for forging and using the same agreement for arbitration. The F. I. R. was registered on 12th February, 1983 and on the completion of investigation a report under section 173, Cr. P. C. was put in the Court of City Magistrate, Sargodha on 20th March, 1983 who has taken the cognizance of the case. The evidence has been summoned and the next date of hearing is 26th November. 1983. Similarly, the learned Civil Judge has fixed the case for proceeding under section 476, Cr: P. C. for 4th December, 1983.

3. In the above background, the learned counsel for the petitioner contends that the case was covered by section 195, Cr. P. C. read with section 476 and section 476-A, Cr. P. C. under which no Court shall take cognizance of an offence committed in relation to a document which was produced before a Court in the course of judicial proceedings. He relies on a case decided by him and reported as Rahim Bakhsh, etc. v. The State (P L D 1974 Kar. 403) in support of the proposition that the offence covered by section 195, Cr. P. C. could not be tried by a Magistrate except on a complaint in writing made by the Court concerned. According to him, unless the provisions of sections 195 and 476, Cr. P. C., were complied with and the procedure followed, there was no jurisdiction in the learned Magistrate to take cognizance of the offence. I have perused the precedent cited and indeed find that it supports the petitioner. '

4. The learned counsel for the petitioner next relied on a decision from Karachi jurisdiction in the case of The State v. S. Ali Hussain and another (P L D 1983 Lah. 397) wherein it has been held that the question of applicability of section 195 (1) (c), Cr. P. C. has to be considered not in relation to the time of preparation of the forged document but to the time of its use. In case the document is used in a Court for any purpose, the avenues for private prosecution get forbidden and only the Court before which the document was produced and used or sought to be used can prosecute the maker of such forged document or the person using such document. It was thus concluded that on a combined reading of sections 195 (1) (c) and 476, Cr. P. C, the conclusion was inescapable that when documents are forged for use in judicial proceedings, a complaint at the instance of a private party would be barred in case the documents are used. On a parity of reasoning, a police challan would also be hit by the prohibition contained in the aforesaid provisions. In my view, the condition precedent for launching the prosecution would be following of the pro cedure prescribed by sections 195 (1) (c) and 476, Cr. P. C., on fulfilment of which condition precedent alone, a Court of criminal jurisdiction would be competent to take cognizance in this matter.

5. The learned counsel appearing for the State Mr. Mushtaq Hussain states that this was the correct position of law and that the proceedings being taken amounted to an abuse of the process of law. He submits that even on general principle, two separate proceedings on the same cause of action or subject-matter ate not encouraged by the scheme of the law obtaining in the country.

6. I would, therefore, hold that the proceedings being taken by the City Magistrate, Sargodha on a police challan in respect to the same matter, which is being examined by the learned Civil Judge, Sargodha, B would amount to abuse of the process of the Court. The same are accordingly quashed. The petitioner who is stated to be in custody would be released forthwith.

M. Y. H. Proceedings quashed.