ARIF MANZOOR QURESHI vs RAEES AHMAD KHAN, DIRECTOR LEGAL, L.D.A.

ORDER

The brief facts out of which the present petition arises are that the petitioner filed a suit for declaration against the respondents which was decreed by the learned Civil Judge vide judgment and decree dated 22-7-1998. The petitioner filed execution petition before the Executing Court. The respondents filed objection petition before the Executing Court. The petitioner filed reply of the objection petition. The objection of the respondents was rejected. The respondents filed Writ Petition No.11307 of 2002 and concealed the material facts from this Court qua the objection petition filed by the respondents before the Executing Court which was dismissed by the Executing Court as is evident from the contents of the main writ petition.

2. The learned counsel of the petitioner submits that respondents filed the affidavit along with the writ petition and concealed the aforesaid material facts from this Court, therefore, the respondents have committed the offence under sections 195, 197 and 198, Pakistan Penal Code and also played fraud with this Court, therefore, proceedings be initiated against the respondents under section 476, Criminal Procedure-Code.

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

4. It is better and appropriate to reproduce section 476 to resolve the present controversy:-- "Section 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."

Mere reading of the aforesaid section shows that it is the discreation of the Court to take cognizance of the offence or not. The respondents mentioned all the material facts qua the controversy in the main writ petition except the objections filed by the respondents before the Executing Court but the respondents mentioned in para. 4 that respondents filed application under section 12(2), Civil Procedure Code for setting aside the judgment and decree passed by the trial Court dated 22-7-1998 and challenged the vires of the order of the Courts below dated 2-1-2001 and 6-5-2002, therefore, the aforesaid facts are not material to resolve the controversy in the main writ petition. It is settled principle 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 per principle laid down by the Division Bench of this Court in the State v. Mian Fazal Elahi (PLD 1970 Lah.

383). It is also settled proposition of law that it is essential for the Court to consider whether there is a reasonable probability for the conviction of the respondents and whether it is expedient for the conviction of the respondents and whether it is expedient in the interest of justice to order the prosecution of the respondents as is envisaged mere reading of the aforesaid section. In arriving to this conclusion, I am fortified by the law laid down in Abdul Rahman v. Noor Muhammad etc. (PLD 1951 Baghdad-ul-Jadid 85).