GHULAM SHABBIR and 6 others vs THE STATE and another

' The brief facts of the present petition are that one Muhammad Ibraheem had filed a pre-emption suit on behalf of Agha Abbas Raza against the present petitioners, as his special power of attorney.

Under the said special power of attorney, the said Muhammad Ibraheem was not empowered to withdraw the said pre-emption suit but it has been alleged that he did withdraw the said preemption suit by filing a second special power of attorney to that effect. Thereafter the complainant, Agha Abbas Raza, alleged that the second special power of attorney had been forged and that it was done by the said Muhammad Ibraheem with the connivance of the present petitioners.

2. Therefore, the complainant, Agha Abbas Raza, filed a suit under section 12(2) of the C.P.C. For a declaration to the effect that the withdrawal of said preemption suit had been obtained fraudulently. However, the said suit was dismissed on the technical ground that the said pre- emption suit did not lie on the basis of being a collateral in view of the case reported as PLD 1986 SC 460.

3. Thereafter the said Agha Abbas Raza lodged a complaint under 420, P.P.C. Against the present petitioners, and during the investigation of the case sections 467/468 and 471, P.P.C. Were also added to the F.I.R. No, 377/85, dated 17-11-1985 at Police Station Ahmadpur East, District Bahawalpur, and that case is pending in the Court of EA.C./M.I.C., Ahmadpur East.

4. The learned counsel for the petitioners contends for abashment of the proceedings of the said case on the following grounds:-- ' That it had been alleged that a forged document/said special power of attorney had been used in a judicial proceeding before a Civil Court, therefore, the prosecution proceedings under section 195, Cr.P.C. Could only be initiated at the complaint of the said Civil Court and not by a private complaint.

' It was further pointed out that the alleged false special power of attorney has not been declared to be a forged document by the said Civil Court nor the complainant had applied to the said Civil Court for taking cognizance of the offences alleged.

' It was further pointed out that only the said Civil Court could take cognizance of such an offence referred to in section 195, Cr.P.C. As required under section 476, Cr.P.C.

5. In support of his contentions the learned counsel for the petitioners relied upon Abdul Ghafoor v.

State 1984 P Cr. L J 381, wherein it was held that the condition precedent for launching prosecution in respect of a forged document used in judicial proceedings was the procedure prescribed by section 195-I(c) and section 476, Cr.P.C. Before a Court of criminal jurisdiction could be competent to take cognizance in the matter. The second authority relied upon was Nusrat Hussain and others v. The State 1986 P Cr. L J 1218. By this judgment the proceedings pending against the accused were quashed as it was held that the entertainment of the complaint in respect of a forged document was barred except at the instance of the Court before which the offence was committed. Therefore, it was held that section 195(i)(c), Cr.P.C. Shall be attracted to such a case.

6. The learned counsel for the State concedes that section 195(i)(c) and A section 476, Cr.P.C. Are applicable to the facts and circumstances of the presen t case and, therefore, does not oppose the abashment of the proceedings pending in respect of the present complaint in the Court of EA.C./M.I.C., Ahmadpur East.

7. In view of the statement of the learned counsel for the State and placing reliance on the authorities cited by the learned counsel for the petitioner, and under the facts and circumstances of the present case, the provisions of sections 195 and 476, Cr.P.C. Are applicable to the present case, therefore, it is held that a private complaint in respect of the offence alleged was not competent under the law and a criminal Court could not take cognizance of such a complaint, which was in contravention of the provisions of sections 195 and 476, Cr.P.C. Referred to above.

Resultantly the proceedings pending against the petitioners, in respect of the F.I.R. No, 377/85, dated 17-11-1985 at Police Station Ahmadpur East, in the Court of EA.C./M.I.C., Ahmadpur East are hereby quashed.