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Criminal Revision No. 529 of 1966, decided on 7th December 1967.

Ss. 476, 476‑B & 439‑Person complained against under S. 476‑Not entitled to invoke revisional powers of High Court under S. 439 without availing his remedy under S. 476‑B.

Ss. 435 & 439 -Revisional powers of Sessions Judge and High Court under S. 435‑Concurrent‑High Court, however, would be loath to entertain revision where party fails to approach lower Court in first instance‑Technicality could, however, be overlooked in presence of other weighty reasons, and High Court may entertain revision directly.

S. 476(1)‑Words "any offence referred to in S. 195"‑Provisions of S. 476 merely enabling‑Inclusion in complaint of offences under Penal Code other than those mentioned in S. 195, Cr. P. C.--Does not render complaint under S. 476, Cr. P. C. invalid.

A complaint under section 476 of the Criminal Procedure Code, 1898 is not rendered invalid on the ground that an offence alleged in the complaint against the accused was not one of the offences mentioned in section 195, Cr. P. C. Section 476 of the Code is merely an enabling section and does not debar a Court from including in its complaint other sections of the Penal Code not mentioned in section 195, Cr. P. C. The provisions contained in section 195, Cr. P. C. are only by way of an exception to the general provision contained in section 190, Cr. P. C. and as such the machinery of law could be set in motion by anybody including the Civil Judge for the commission of any offence including all those not covered by clause (c) of subsection (1) of section 195, Cr. P. C.

Emperor v. Bal Mukand and others A I R 1928 Lah. 510 and Dharmumal Teumal and others v. Teunmal Lekhraj A I R 1940 Sind 133 rel.

Gul Hassan and others v. The State P L D 1963 Kar. 624 not approved.

Mooso v. The State P L D 1963 Kar. 719 and Lala Mathur Prasad v. Pitambar Singh A I R 1945 Pat. 362 ref:

S. 195(1) (c) Words "any offence described in S. 463"‑Cover all kinds of forgery‑Offence under S. 468, P. P. C. nothing but one form of forgery as defined in S. 463, P. P C. and as such Ss. 468 & 109, P. P. C. (latter being one of abetment) both covered by S. 195 (1) (c)‑Criminal Procedure Code (V of 1898), S. 476(1.), Penal Code (XLV of 1860), S. 468.

S. 420‑Complaint under S. 420‑Need not necessarily be filed by cheated person alone‑Mere inclusion of S. 420 among other sections in complaint made under S. 476, Cr. P. C.‑Would not invalidate proceedings Criminal Procedure Code (V of 1898), S. 476.

Muhammad Hayat Khan v. Ghulam Muhammad P L D 1954 B J 5 and Ghulam Mustafa v. The State P L D 1960 Lah. 290 ref.

S. 476‑Civil Court after holding inquiry considering it expedient to file complaint‑Mere fact that order of Court directed framing of complaint under S. 419, P. P. C. but actual complaint as framed mentioned sections other than 419, P. P. C.‑Would not indicate that Court had not applied its mind to consider whether filing of complaint was "expedient in the interest of justice".

Fakir Muhammad Mangrio v. The State P L D 1965 Kar. 313 distinguished.

Abdus Samad Mian and others v. Keshab Lal Gope P L D 1965 Dacca 46 ref.

Ss. 439 8r 561‑A Quashment of criminal proceedings‑Whether any prima facie case, on complaint as framed, made out‑Question to be deter mined by trial Court‑Proceedings cannot be quashed on bare ground that complaint does not reveal commission of any offence.

Ghulam Muhammad v. Muzammal Khan P L D 1967 S C 317 rel.

Pervaiz Akhtar for Petitioner.

M. A. Bajwa for A.‑G. for the State.

Date of hearing: 7th December 1967.

This Criminal Revision filed under section 439, Cr. P. C. is directed against the order of Mr. Faisal Tehseen Memon, Magistrate 1st Class, Lahore, dated 14th March 1966, whereby rejecting the petitioner's objections to the maintainability of the complaint filed against him by Seth Abdul Wahid, Civil Judge, Lahore, under sections 420, 468, 471 and 109, P. P. C., he decided to proceed with the same. The petitioner without having availed in the first instance the remedy of appeal open to him before the Court of Sessions has come directly to this Court invoking its revisional jurisdiction with the prayer that the aforesaid order be set aside and the complaint filed against the petitioner be quashed.

2. The brief facts giving rise to the case are that the petitioner was allegedly instrumental in getting a Civil suit instituted against his brother Muhammad Janan Khan through somebody who personated as Muhammad Abid son of Muhammad Janan Khan defendant. The true position was revealed when Muhammad Abid appeared in Court and stated that the suit had been fraudulently filed on his behalf by somebody else. The learned Civil Judge after holding a preliminary enquiry directed in the first instance vide his order dated 3rd September 1965, that a complaint be framed under section 419, P. P. C. and submitted to the Court of Additional District Magistrate, Lahore. Later on the complaint was actually filed against the petitioner for offences under sections 420, 468, 471 and 109, P. P. C., which ultimately came up before Mr. Faisal Tehseen Memon who passed the impugned order giving rise to the present Criminal Revision.

3. The learned counsel for the petitioner raised the following contentions before me:

(i) that of the four different offences alleged against the petitioner, only one under section 471, P. P. C. is covered by the complaint under section 476, Cr. P. C. as contemplated by clause (c) of subsection (1) of section 195, Cr. P. C., and since the remaining offences under sections 420, 468 and 109, P. P. C. are not included in the list of offences mentioned in section 195, Cr. P. C., their application in the complaint invalidated the complaint itself which was thus rendered incompetent. Reliance was placed in this regard on Gul Hassan and others v. The State P L D 1963 Kar. 624 and Mooso v. The State P L D 1963 Kar. 719.

(ii) that even in regard to an offence under section 471, P. P. C. the complaint as filed against the petitioner is not competent owing to the non‑fulfillment of the two conditions laid down in clause (c) of subsection (1) of section 195, Cr. P. C., namely (i) that the offence should be allegedly committed in respect of a document produced or given in evidence in such proceedings. Reliance was placed on Lala Mathur Prasad v. Pitambar Singh A I R 1945 Pat. 362.

(iii) that the inconsistency between the original order directing the framing of a complaint under section 419, P. P. C. and the actual complaint as framed under sections 420, 468, 471 and 109, P. P. C. would clearly indicate that the learned Civil Judge had not applied his mind to determine whether the filing of the complaint was expedient in the interest of justice as contemplated by section 476, Cr. P. C. In support of the obligatory requirement of the application of mind as an essential prerequisite for filing a complaint, reliance was placed on Mooso v. The State; Abdus Samad Mian and others v. Keshab Lal Gope P L D 1965 Dacca 46 and Fakir Muhammad Mangrio v. The State P L D 1965 Kar. 313.

(iv) that in so far as the allegations under section 420, P. P. C. were concerned, it was only the person cheated who could initiate proceedings against an accused‑person and a complaint of this nature by a civil servant would not be competent. Reliance was placed on Muhammad Hayat Khan v. Ghulam Muhammad P L D 1954 B J 5.

(v) that from the allegations as set out in the complaint, no offence was made out against the petitioner. Reliance was placed on Ghulam Mustafa v. The State P L D 1960 Lah. 290.

4. The learned counsel appearing on behalf of the State raised a preliminary objection that the Criminal Revision was liable to be dismissed on the short ground that the remedy of appeal available to the petitioner before the Sessions Judge having not been availed of it, was hit by the provisions contained in subsection (5) of section 439, Cr. P. C. It was argued that section 476 (b), Cr. P. C. specifically provided for the remedy of an appeal against the order for filing of a complaint under section 476, Cr. P. C. which was not sought to be availed of by the petitioner at the proper stage. In answer to the first contention raised by the learned counsel for the petitioner, it was argued that the provision contained in section 195, Cr. P. C. was only by way of an exception to the general provisions contained in section 190 which made it competent to any citizen to file a complaint constituting an offence and thereby set the machinery of law in motion; and the fact that the learned Civil Judge held a public office could not be so construed as to impunge upon his rights as a citizen to file a complaint. In respect of the offences under sections 468 and 109, P. P. C , it was further argued that both were, in fact, covered by the provisions contained in section 195, Cr. P. C. itself, inasmuch as an offence under section 468, P. P. C. was nothing but just one form of forgery as defined in section 463, P. P. C. and covered by clause (c) of subsection (1) of section 195, Cr. P. C. Regarding section 109, P. P. C.

It was argued that subsection (4) of this section made applicable provisions of subsection (1) to abetments and attempts relating to offences mentioned therein and as such covered allegations under section 109, P. P. C. mentioned in the complaint. Reliance was placed in this regard on Emperor v. Bal Mukand and others (A I R 1928 Lah. 510) and Dharmumal Teumal and others v. Teunmal Lekhraj (A I R 1940 Sind 133). In answer to the second contention raised by the learned counsel for the petitioner, it was conceded that the scope of the provision contained in clause (c) of subsection (1) of section 195 was definitely narrower than that of the preceding provision contained in clauses (a) and (b) which dealt with allegations of offences committed not only in the course of proceedings pending in a Court but even in relation to those proceedings. It was, however, argued that assuming that the two conditions for the invocation of clause (c) namely, that the offence should be allegedly committed by a party to any proceedings and it should be in respect of a document produced or given in evidence of such proceedings, are not fulfilled, the general provision contained in section 190, Cr. P. C. would still clothe the complainant Civil Judge with ample authority to file the complaint and set the machinery of law in motion. It was further argued that in point of fact the precise application of the sections is not the function of the complaining Court and even if there is some confusion as to the applicability or otherwise of a certain section in regard to the allegations contained in the complaint, that would not invalidate the same. Reliance was placed in this regard on Emperor v. Bal Mukand and others. On the question that the learned Civil Judge had not properly applied his mind to determine whether the filing of the complaint was expedient in the interest of justice as contemplated by section 476, Cr. P. C., it was contended that although the aforesaid provision did not make it obligatory on the complaining Court to hold an enquiry but left the same to its discretion, nonetheless the learned Civil Judge, had, in fact, deemed it fit to hold such an enquiry and it was after having recorded the statements of three persons including that of Sh. Abdul Majid, Advocate that he ultimately considered it expedient to file the complaint, and as such there is no force in the objection that he had not properly applied his mind. It was argued that for reasons stated earlier the variations between the earlier section contained in the order and the complaint framed subsequently would be immaterial. In answer to the next contention that the Civil Judge was not competent to file a complaint under section 420, P. P. C., it was argued that firstly it was only one of the several offences alleged against the petitioner and it would be premature to determine as to which of the alleged offences would be ultimately established, if at all, against the petitioner. Although it was not conceded that only a person defrauded was a competent complainant in a case under section 420, P. P. C. as he could be examined as a P. W. even otherwise yet it was argued on this assumption that a successful challenge to an offence under section 420 on this ground alone was not good enough to vitiate the entire proceedings which proceeded, inter alia, on allegations of offences under sections 468 and 471, P. P. C. Reliance was placed in this regard on Dharmumal Teumal and others v. Teunmal Lekhraj which laid down that a complaint under section 476; Cr. P. C. did not preclude a complaining Magistrate to add sections other than those mentioned in section 195, Cr. P. C. In reply to the last contention raised by the learned counsel, it was argued that it would be neither possible nor proper for this Court simply on the perusal of the complaint to form an opinion that the entire proceedings amounted to an abuse of the process of the Court. Reliance was placed in this regard on Ghulam Muhammad v. Muzammal Khan (P L D 1967 S C 317).

5. Having heard the learned counsel on both sides at great length, I record my appreciation of the assistance rendered by them, I am clearly of the view that the petition must fail for more than one reason. It could not be denied by the learned counsel for the petitioner that a remedy by way of appeal under section 476 (b), Cr. P. C. was available to him when the complaint was first filed against his client, which was never availed of. However the non‑availability of that remedy would not attract the application of subsection (5) of section 439, Cr. P. C., inasmuch as it is not the original order of complaint which has been impugned before this Court, but the subsequent one passed by the learned trial Magistrate overruling the petitioner's objections to the maintainability of the proceedings before him. But before coming directly to this Court under section 439, Cr. P. C., a remedy was still available to the petitioner before the learned Sessions Judge which is a Court of concurrent revisional jurisdiction. Since, however, the exercise of revisional jurisdiction is a discretionary matter, this Court is under no obligation to directly entertain such a petition where the party invoking its jurisdiction tries to short‑circuit the procedure laid down by the law.

6. Were it not for other reasons which I consider to be more weighty for the dismissal of this petition, I would not have perhaps deemed it proper to rely on a mere technicality for its dismissal. The arguments advanced by the learned counsel C for the State that the provisions contained in section 195, Cr. P. C. are only by way of an exception to the general provisions contained in section 190, Cr. P. C. and as such the machinery of law could be set in motion by anybody including the Civil Judge for the commission of any offence including all those not covered by clause (c) of subsection (1) of section 195, Cr. P. C., furnish a complete answer to the contention raised by the learned counsel for the petitioner. It was laid down in Emperor v. Bal Mukand aced others a D. B. authority that a complaint under section 476, Cr. P. C. was not rendered invalid on the ground that an offence under section 477 alleged in the complaint against the accused was not one of the offences mentioned in section 195, Cr. P. C. Their Lordships overruled the objection that the existence or inclusion of such a section E in the complaint rendered it illegal on that ground. In Dharmumal Teumal and others v. Teunmal Lekhraj again a D. B. authority, it was held by their Lordships that section 476, Cr. P. C. was merely an enabling section and did not debar a Magistrate from including in his complaint other sections of the Penal Code not mentioned in section 195, Cr. P. C. and it was open to him to include in the complaint not merely offences to in that section but also other offences under the Pakistan Penal Code. This authority appears to be on all fours and hits the nail on the head. In view of these authorities the Single Bench authority relied upon by the learned counsel in Gul Hassan's case has got to be ignored, of course with the utmost respect. In all probability, the aforesaid two authorities were not brought to his Lordship's notice.

7. In so far as the offences under sections 468 and 109, P. P. C. mentioned in the complaint are concerned, the former being just one kind of forgery as described in section 463 and the latter being one of abetment, both are fully covered by the provision contained in clause (c) of subsection (1) of section 195, Cr. P. C. The expression "any offence described in section 463" as occurring in the aforesaid provision gives a clear indication that all kinds of forgery are covered by it. We are thus left only with an offence under section 420, P. P. C. The arguments advanced by the learned counsel for the State reproduced earlier and supported by authorities are good enough even to cover all offences under the Pakistan Penal Code including an offence under section 420, P. P. C., for which the statute itself does not create any specific exception that a person cheated alone can initiate criminal proceedings. Of course, nobody could be convicted if the person cheated did not enter the witness‑box in support of the allegations. But even if this position is assumed without conceding, that would hardly be a reason to quash the entire proceedings which are also based on other allegations under sections 468 and 471, P. P. C.

8. As regards the contention that the learned Civil Judge had not applied his mind to determine the expediency in the filing of such a complaint in the interest of justice, I am readily inclined to agree with the view expressed by the learned counsel for the State. A perusal of the impugned order clearly indicates that notwithstanding the direction issued in the earlier order that the complaint should be filed under section 419, P. P. C. which was subsequently substituted by the existing sections in the complaint, the learned Civil Judge had definitely K applied his mind before moving in the matter. In fact, without prejudice to the proceedings in the case it may be observed that from the facts as alleged in the complaint the petitioner practised a fraud on the Court itself besides being instrumental in the filing of a suit through personation. As such it would not be correct to say that the complaint was filed merely indicating the position of a single individual or for the satisfaction of his sense of vengeance. P L D 1965 Kar. 313 relied upon by the learned counsel proceeds on different facts.

9. Coming to the last contention that the complaint as framed does not reveal commission of any offence whatever against the petitioner, it may be observed that this is a question to be determined by the trial Court after recording some evidence. If no offence is prima facie made out against the petitioner, this Court has every reason to believe that he shall be discharged in accordance with the legal procedure. But in view of P L D 1967 S C 317 there is hardly any ground for quashing the proceedings. In consequence I find that the impugned order which is well reasoned revealing a conscientious application of mind on the part of the learned Magistrate is unexceptionable.

10. For the foregoing reasons, the revision fails and is hereby dismissed.

K.B.A. Petition dismissed.

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