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Criminal Revision No. 459 of 1975, decided on 9th June 1976.

-- S. 195-Petitioner neither a party in application for setting aside ex parte decree nor giving or fabricating false evidence in those proceedings nor any evidence to show that petitioners in any manner abetted co-defendants-Prosecution of petitioners, held, uncalled for, improper and illegal, in circumstances-Penal Code (XLV of 1860), Ss. 193/196/465/471 & 107.

Provat Ranjan Barat and others v. Umar Shankar Chatterjee and others A I R 1931 Cal. 438; Emperor v. Raja Kushal Pal Singh A I R 1931 All. 443; Lala Methur Prasad v. Pitambar Saigh A I R 1945 Pat. 362 and Brishikesh Ditta v. State 1969 P Cr. L J 241 ref.

Ch. Zamir Ahmad Khali for Petitioners.

Nemo for the State.

Date of hearing : 9th June 1976. -

The facts, which have given rise to this revision, are given in my admitting order dated the 20th of April 1976. On the basis of a complaint made by Civil Judge, Sahiwal, the petitioners are being prosecuted under sec tions 193/196/465/471 and 107, P. P. C. The background is that Abdul Latif plaintiff had filed a main suit in which the present petitioners alongwith some others were impleaded as defendants. Two of the defendants other than the petitioners were proceeded against ex parte. These two defendants, namely, Mst, Sarwar Jan and Mst. Maqbool Jan filed an application on the 13th of December 1972, for setting aside the ex parte proceedings. This application was supported by an affidavit made by Mst. Sarwar Jan. The Court on the 15th of allowed this application. March, 1973, as it was not opposed by the plaintiff'. However, the plaintiff filed subsequently an application alleging that the thumb-impression of Mst. Sarwar Jan and Mst. Maqbool Jan on the documents pertaining to that application were fabricated and that this fabrication was done by all the defendants including the petitioners. The Civil Judge before whom the matter was pending accepted the application of the plaintiff vide his order dated the 21st of March, 1974 and a complaint was lodged by him against the petitioners alongwith others under the aforesaid sections. The petitioners challenged the order of the Civil Judge by way of an appeal, but the Additional District Judge, Sahiwal, vide his judgment dated the 29th of January, 1975, dismissed the same and upheld the order of the Civil Judge with some modification. Hence the present revision.

2. The argument of learned counsel for the petitioners is that the petitioners were not a party to the application filed by Mst. Sarwar Jan and Mst. Maqbool Jan for setting aside the ex parte proceedings and they could possibly have no interest in that application. It was argued that proceedings were taken against the petitioners under section 195, subsection (1) (c), Cr. P. C. and according to this section no Court can take cognizance of any offence described in section 463, P. P. C. or punishable under section 471, P. P. C. except when such offence was alleged to have been committed by a party to any proceedings in any Court in respect of a document produced or given in evidence in such proceedings and only on the complaint in writing of such Court etc. It is pointed out that the Court could take cognizance under sec tion 195, Cr. P. C. in the case of the petitioners only if they had been a party in the proceedings in question before the Civil Judge. It was stated that section 465, P. P. C. was an offence described in section 463, P. P. C. It was submitted that the petitioners could not be prosecuted under section 465 or 471, P. P. C. by way of proceedings under section 195, Cr. P. C. as they were not a party to these proceedings. It was also argued that proceedings could be taken under section 195, Cr. P. C. only if that section is read together with section 476, Cr. P. C. In other words if any Court had a cause of com plaint against any party to the proceedings pending before that Court, it could proceed against a party to such proceeding under the aforesaid sections but not against a person who was not a party. It was next contended that the petitioners could not be prosecuted under sections 193 and 196, P. P. C. because they did not make any false statement or gave any false evidence in the setting aside of ex parte proceedings before the Civil Judge. It was sub mitted that the petitioners have nothing to do with Mst. Sarwar Jan and Mst. Maqbool Jan who were parties to these proceedings. There is nothing on the record to show that the petitioners had produced any false evidence or fabricated any evidence in connection with those proceedings: Thus the reasoning of learned counsel is that since the petitioners were neither a party in the application for setting aside the ex parte decree, nor they had given or fabricated any false evidence in those proceedings, nor was there any evidence to the effect they had abetted Mst. Sarwar Jan and Mst. Maqbool Jan for doing the same, their prosecution under the aforesaid sections was illegal and was liable to be set aside. Learned counsel on Provat Ranjon Barat and others v. Umar Shankar Chatterjee and others places reliance (A I R 1931 Cal. 438) Emperor v. Raja Kushal Pal Singh (A I R 1931 All. 443), Lala Methur Prasad v. Pitambar Saigh (A I R 1945 Pat. 362) and Brishikesh Ditta v. State (1969 P Cr. L J 241).

3. I have heard learned counsel for the petitioners. His arguments have force. I have already accepted Criminal Revision No. 373 of 1975 vide my judgment dated the 19th of June, 1975, of a co-accused of the petitioners. The case of the petitioners is identical. Under the aforesaid sections only Mst. Sarwar Jan and Mst. Maqbool Jan could have been prosecuted. The petitioners were not party to the application filed by aforesaid two persons for setting aside the ex parte decree. They did not produce any false evidence or made any false statement before the Civil Judge in connection with those proceedings. There does not exit even the evidence that they had in any way abated Mst. Sarwar Jan and Mst. Maqbool Jan. In the circumstances their prosecution under the aforesaid sections was uncalled for, improper and illegal.

In the light of the above discussion I am of the view that the impugned judgment of the Additional District Judge Sahiwal so far as it relates to the petitioners was illegal and was liable to be set aside. It is accordingly set aside so far as it relates to the petitioners. This revision is accepted.

Revision allowed.

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