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Criminal Appeal No. 72 of 1970, decided on 15^th February 1971.

S. 195(1)(c) read with Penal Code (XLV of 1860), Ss. 468 & 471--‑Prosecution for offence of using fogged document as genuine‑--Sanction order on a slip of paper bearing no date and not showing that officer applied his mind‑--Not a valid substitute for a proper complaint as provided under S. 195(l)(c), Cr. P. C.‑--Conviction, held, improper and illegal for absence of a valid complaint.

Rahimuddin and others v. The State P L D 1960 Dacca 975 and Rana Muhammad Afzal Khan v. The State P L D 1962 S C 397 distinguished.

Pir Bakhsh Khan for Appellant.

Mian Burhanuddin Khan, A. A. G. for the State.

Dates of hearing: 5^th and 15^th February 1971.

Falak Sher (32), Andlip (32) and Amir Bakhsh (55) were tried for offences under sections 419, 420, 468 and 471, P. P. C. by Mr. Niamat Ullah Khan, Section 30 Magistrate, Bannu, who convicted and sentenced them as below:

Falak Sher and Amir Badshah under section 471/114, P. P. C. to undergo rigorous imprisonment for a period of seven years each; and Andalip to undergo rigorous imprisonment for a period of seven years under section 471, P. P. C.

The accused were, however, acquitted of the charge under section 420/114, P. P. C.

2. Falak Sher and Andalip filed separate appeals questioning the correctness of their conviction and the sentences. This judgment will dispose of both the appeals together.

3. Shortly stated, the facts of the case are that Andalip filed a declaratory suit on 3rd January 1967 in the Court of the Senior Civil Judge, Bannu, that he was owner by purchase of land measur ing 444 kanals and 13 marlas, situate in village Nar Faqir Muham mad Masoom, Bannu, from one Abdul Baqi in lieu of Rs. 97,823.00. On 4th January 1967 a deed of compromise, Exh. P. P., was filed and the suit was decreed. On April 1, 1967, a complaint Exh. P. A/1 was filed by Kamal‑ud‑Din (P. W. 2) in the Court of the District Magistrate, Bannu, who endorsed it to the Superintendent of Police, Bannu and under his orders an enquiry was held under section 156(3), Cr. P. Code with the result that a case was registered on the 29th of July 1967.

4. The appeals, I am afraid, must be allowed on the short ground that the convictions were improper for absence of a valid complaint by the Senior Civil Judge, Bunnu, in whose Court the forged document had been used. The relevant portion from section 195(1), Cr. P. Code reads:‑

"(1) No Court shall take cognizance‑

(a) .

(b) .

(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 proceedings, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate:

Admittedly, in the instant case, there was no complaint by the Senior Civil Judge and cognizance had been taken on Police challan. The Assistant Advocate‑General placed reliance on Rahimuddin and others v. The State (P L D 1960 Dacca 975) in support of the argument that as the challan against the present appellants was also for offences other than those for which a complaint was necessary, the conviction recorded was proper. In the Dacca case, it was held:‑

"Where there are several offences to be tried and one of such offences required a complaint to be made by a competent authority and a complaint for the trial of that offence had not been obtained, the Court may proceed with the trial of the other offences which did not require a complaint to be made by a competent Court."

Nobody has any dispute with the proposition of law laid down by their Lordships of the Dacca High Court. In the body of the judgment, it was observed:‑

"It was the prosecution case that Ekinuddin uttered the kabala before the Revenue Circle Officer and according to Mr. Abdullah the R. C. O. was a Revenue Court under section 195(1) (c) of the Code of Criminal Procedure. Mr. Abdullah, however, could not satisfy us whether the R. C. O. was functioning as an Administrative Officer or as a Revenue Court; though pressed he was not able to give us any definite answer with reference to the evidence in this case."

It was under the above circumstances that their Lordships considered that the trial was legal. In the case in hand, the forged document had been used in the Court of the Senior Civil Judge, Bannu, on the basis of which a decree had been granted. The instant case is, therefore, distinguishable from the Dacca case.

5. Reference had also been made on behalf of the State to a judgment of the Supreme Court in Rana Muhammad Afial Khan v. The State (P L D 1962 S C 397). In that case, Rana Muhammad Afzal Khan representing himself to be a Magistrate, induced in turn, a Municipal Commissioner, the Tehsildar and the Deputy Commissioner to attest a certificate that one S, (a student) was a resident of a certain city intending thereby to enable S to get admission to a college against one of the reserved seats for residents of that city. Rana Muhammad Afzal Khan was tried by the Additional Sessions Judge under sections 182, 182/109, 419, 420 and 419/109, P. P. C. He was acquitted of the charge under section 182, P. P. C. on the ground that there was no complaint by the Officer concerned, but was convicted on the other charges. His appeal was dismissed by the High Court. Their Lordships of the Supreme Court left it to the public servants concerned to file a complain: under section 182, P. P. C. on which proceedings could be taken de novo. The Supreme Court judgment, in my opinion, is of no help in the present case.

6. It was pointed out that a formal sanction from the Senior Civil Judge for prosecution of the accused had b ,‑en obtained. The sanction order is Exh. P. C. and runs:‑‑

"Sanction for prosecution under section 467/468/471, P. P. C. of Andlip, Amir Badshah and Falak Sher, ac.‑used, is hereby accorded in case F. I. R. No. 64 dated 29th July 1967, P. S. Cantt., Bannu.

(Sd.) Mohammad Akhtar Khan P. C. S., Senior Civil Judge, Bannu."

The sanction order, referred to above, is just on a slip of paper bearing no date and does not show that the Officer applied his mind. I am, therefore, not inclined to accept that it can be a valid substitute for a proper complaint as provided under section 195 (1) (c) of the Code of Criminal Procedure. The conviction of the appellants, in my opinion, was improper and illegal in the absence of a valid complaint.

7. The question was also raised before the learned trial Magis trate who disposed of the objection with the remarks:‑

"The present case was registered under section 419/420/468/ 471, P. P. C. The former two sections are cognizable and a Police Officer can arrest the accused without a warrant, the latter two sections are, of course, non‑cognizable, but section 235, Cr. P. C. provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence. In the present case more offences than one were committed in the same transaction, some of which are cognizable and some non‑cognizable, which had to be tried at one trial and could not be bifurcated, therefore, to my mind, there is no bar to the taking cognizance of non‑cognizable offences with the cognizable ones, when the accused are to be tried at one trial."

The approach to the problem by the Magistrate was certainly erroneous. In the result, I accept both the appeals, set aside the conviction and the sentences passed on the appellants and order them to be acquitted. Falak Sher is on bail and his bail bond is cancelled. Andlip is in jail and I direct that he be released forthwith provided always that his detention is not required in connection with any other case. It would, however, be open to the authorities file a proper complaint against the appellants, if so advised, for their prosecution.

S. Q. Appeal accepted.

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