Mst. Tabinda Versus State
Order
Muhammad Amjad Rafiq, J .--- Petitioners seek pre-arrest bail in case FIR No.2360 dated 24.10.2024 registered under Sections 420/468/471-P.P.C at Police Station Civil Line, District Faisalabad.
2. The FIR was registered against the present petitioners on the allegations that for their appearance as accused persons in a private complaint titled Muhammad Sohail Mukhtar v. Mst. Tabinda, etc. they furnished forged bail bonds. Learned counsel for the petitioners contends that petitioners have not prepared the bail bonds and if they were found forged, the learned trial Court can simply reject it for substitution with fresh bail bonds. In such situation, action could be taken against the sureties only and not the present petitioners. Further states that such action cannot be in the form of registration of FIR rather it is an offence defined under section 205 of Pakistan Penal Code 1860 (P.P.C) which is non-cognizable.
3. Learned Assistant District Public Prosecutor states that forged bail bonds were prepared well before their presentation to the Court, therefore, FIR can be registered and as such is essential to eliminate the menace of Toutism.
4. Heard. Record perused.
5. For reference, section 205 P.P.C is reproduced as under:
205. False personation for purpose of act or proceeding in suit or prosecution. Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.
(Emphasis supplied)
The above section clearly reflects that if any person impersonates others, and in such assumed character becomes bail or security, or does any other act in any suit or criminal prosecution, he can be charged with offence under section 205 P.P.C. Present petitioners were not the sureties, therefore, if surety had furnished forged bail bonds and the petitioners were aware of such act, then at the most they could be charged for offence under section 109 P.P.C read with section 205 P.P.C, but it has been observed that section 205 P.P.C is a non-cognizable offence for which no FIR can be registered. For initiation of criminal proceedings and taking cognizance by the Court for such offence, a special procedure has been prescribed under section 195 of Cr.P.C. For reference, relevant part of section 195 Cr.P.C. is reproduced:
195. Prosecution for contempt of lawful authority of public servants. Prosecution for certain offence against public justice. Prosecution for certain offences relating to documents given in evidence.
(1) No Court shall take cognizance:--
(a) .. ..
(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 228, when such offence is alleged to have been committed in, or in relation to, any proceedings 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 proceeding 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.
Section 205 P.P.C is listed in section 195 (1) (b) of Cr.P.C., as cited above, therefore, only the Court concerned can take cognizance of such offence. Reliance is placed on cases reported as Gul Khan v. The State (2015 PCr.LJ 126) and Attique ur-Rehman v. The State (2000 PCr.LJ 703). Even proceedings in such situation can also be initiated on the application of concerned Reader or Ahlmad. Even if it is found that bail bonds were forged and produced before the Court then section 195 (1) (c) Cr.P.C. would become operative because it clearly says that if any offence described in Section 463 or punishable under Section 471 P.P.C, is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding , then cognizance is conditional upon the complaint in writing of such Court, or of some other Court to which such Court is subordinate.
6. Before proceeding further, it is essential to see the meanings of proceedings , documents produced or documents given in evidence . Supreme Court of Pakistan in cases reported as Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others (PLD 2003 SC 132) and The State through Advocate-General N.-W.F.P., Peshawar v. Naeemullah Khan (2001 SCMR 1461), has defined word proceedings as under;
In legal terminology the word "proceedings" means the instituting or carrying on of an action of law. Generally, a 'proceeding' is the form and manner of conducting judicial business before a Court or judicial officer, including all possible steps in an action from its commencement to the execution of a judgment and in a more particular sense it is any application to a Court of justice for aid in enforcement of rights, for relief, for redress of injuries, or damages or for any remedial object. It in its general use comprehends every step taken or measure adopted in prosecution or defence of an action.
The Allahabad High Court in a case titled P.C. Gupta v. State and another reported as (1974 Cri.LJ 945) included the bail proceedings under this expression in section 195 Cr.P.C.
The words "any proceeding" used in Section 195(1)(b) of the Code are words of amplitude and have no limitations, except that the proceedings should be before a Court. While granting bail, in any case, the learned Judicial Officer was conducting judicial proceedings and acting in the capacity of a Court. The word "any" which precedes the expression "proceeding" is inter changeable with the words "every" or "all".
7. The Supreme Court of India in a case reported as AIR 1972 (SC) 2639 under the title Nirmaljit Singh Hoon v. State of W.B. and others explained the words document produced in these words:
A document can be said to have been produced in a court when it is not only produced for the purpose of being tendered in evidence, but also for some other purpose.
And in the same judgment, the words such Court were also defined as under;
The words "such court" mean the very, court before which a party to a proceeding in that court has produced or tendered in evidence a document in respect of which the offence is alleged to have been committed. Clause (c), in other words, means that it is that court before which there is a proceeding and a party to such a proceeding is said to have committed an offence in respect of a document produced or tendered in evidence by him, on whose complaint the offence can be taken cognizance of. The object and purpose of Section 195 (1) (c) is that it is the court before which an offence is alleged to have been committed in respect of a document produced in a proceeding before it by a party to such proceeding, which should file or cause to be filed a complaint and not a private party.
In a case reported as Abdul Ghafoor v. The State (1984 PCr.LJ 381), this Court has held for words such Court as under;
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.
8. The concept documents given in evidence as used in section 195 (1) (c) of Cr.P.C., is to be understood in the light of definition of word evidence as given in Qanun-e-Shahadat Order 1984, Article 2 (1) (c) of the Order is as under;
(c) "Evidence" includes;
(i) all statements which the Court permits or requires be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; and
(ii) all documents produced for the inspection of the Court; such documents are called documentary evidence;
(Emphasis supplied)
Thus, irrespective of question of admissibility, every document produced for the inspection of Court is called evidence, which qualifies production of bail bonds as well, as held in cases reported as Ameer Khan and 2 others v. The State and another (2013 YLR 1624); Muhammad Waris Ali v. The State and others (2013 PCr.LJ 1500): Zafar Iqbal and another v. Asghar Ali and another (2006 MLD 1739) which suggest if bail bonds are found forged, proceedings can be initiated under section 195 of Cr.P.C., only. Even in a case reported as Muhammad Suleman and others v. Abdur Razzaque and others (PLD 2005 Lahore 386), FIR was ordered to be quashed.
9. Offences mentioned in section 195 Cr.P.C., deal with administration of public justice which provides a full control and command on the situation to the Court concerned with a connotation that except Court, no other institution can enter into the public justice process for offences which have close nexus with the proceedings of the Court, therefore, sending the case to police for registration of FIR amounts to inviting intrusion into the administration of justice by the Court which runs against the intention of legislature for which section 195 of Cr.P.C. was enacted. While noting any forgery, in bail bonds, Courts can simply reject it and ask for filing of fresh bonds in order to regulate the process, and at the same time if after inquiry considers that the intention was of cheating the Court by such forgery, can proceed for trial of such offences. Even the Supreme Court of Pakistan has held in a case reported as Ch. Feroze Din v. Dr. K. M. Munir and another (1970 SCMR 10) that Section 195 Cr.P.C clearly provides for the complaint by none other than the such Court before which the document is given in evidence or produced. The object of placing the bar is in public interest, and to avoid one party to wreak a private vengeance or satisfy a private grudge against other. As discussed above, by all means, the bail bonds are documents and were produced before the Court in connection with proceedings for bail, therefore, provisions of Section 195, subsection (1), Clauses (b) and (c) of Cr.P.C., are fully attracted in the matter, and for trial of such offences a special procedure has been prescribed under section 476 of Cr.P.C., which says as under;
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.
Thus, in such situation, registration of FIR was not the proper course.
10. It is true that certain private documents like, Sale agreements, Gift deeds, Nikah Nama (Marriage Certificate), or other revenue documents regulating the rights to property or status of the parties, whose records are kept by the public office, are prepared well before their production in the Courts; thus, are open to be regulated differently; but documents which are prepared and procured during the proceedings in compliance with the order of the Court, if found forged, shall fall within the ambit of section 195, subsection (1), Clauses (b) or (c) of Cr.P.C. Reference in this respect is made to a case from Indian jurisdiction, reported as Iqbal Singh Marwah and another v. Meenakshi Marwah and another (2005 AIR (SC) 2119).
11. So far as contention of learned Prosecutor is concerned that forged bail bonds are usually procured in the system by the touts, therefore, registration of FIR in such case would help eliminate the menace of toutism plagued in district Courts, suffice it to respond that a special procedure for declaring any person as tout was in place as per section 36 of the Legal Practitioners Act 1879 amended by Act XI of 1896 and Act XV of 1926 along with rules framed in Chapter 13 of Lahore High Court Rules and Orders Volume-V, but now being regulated through section 59 read with section 2 (m) of the Legal Practitioners and Bar Councils Act, 1973 which prescribes a punishment of three years. imprisonment. Thus, a separate regime of law for initiation of proceedings cannot be allowed to amalgamate in the proceedings, like the present case.
12. In the light of above references, it is safely concluded that proper process has not been followed, and at present no material with respect to connivance of present petitioners with surety for forging bail bonds is available. It has been held by the Supreme Court of Pakistan in the cases reported as Khair Muhammad and another v. The State through P.G. Punjab and another (2021 SCMR 130) , Javed Iqbal v. The State through Prosecutor General of Punjab and another (2022 SCMR 1424), Muhammad Umar Waqas Barkat Ali v. The State and another (2023 SCMR 330) and Abdul Rehman alias Muhammad Zeeshan v. The State and others (2023 SCMR 884) that while dealing with petitions for pre-arrest bail, merits of the case can be touched upon and question of further inquiry can be stretched at this stage as well. In the circumstances, apparently petitioners have made out the case for pre-arrest bail.
13. Consequently, this petition is allowed and ad-interim pre-arrest bail already granted to the petitioners is confirmed subject to furnishing fresh bail bonds in the sum of Rs.1,00,000/- (One Lac) each with one surety each in the like amount to the satisfaction of learned trial Court.
JK/T-13/L Petition allowed.