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Criminal Miscellaneous Application No. 134 of 1986, decided on 15th June, 1986.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss. 419, 465 & 471‑‑Quashing of proceedings-‑Complaint disclosing prima facie case of cheating by impersonation, forgery and using of forged documents‑‑Preliminary statements of complainant and his witnesses disclosing prima facie case‑ Version of accused yet to be recorded‑‑Appreciation of evidence for ascertaining truth or falsity of allegations being the duty of Trial Court, any interception of pro2eedings at that stage by High Court held, would clearly amount to usurpation of functions of Trial Court which would itself constitute abuse of process of Court and stifling of prosecution‑‑Quashing of proceedings declined in circumstances.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss.419, 465 & 471‑‑Quashing of proceedings before Trial Court‑‑Maintainability of‑‑Petitioners not approaching Trial Court under S.249‑A, Cr.P.C.‑‑Powers of High Court and Trial Court under S.249‑A, Cr.P.C., held, could both be resorted to and nothing in 5.249‑A, Cr.P.C. wed bar High Court from entertaining, in appropriate case, application under S.561‑A, Cr.P.C. directly.

Mian Munir v. The State 1985 S C M R 257ref.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), Ss.419, 465 & 471‑‑Prima facie case‑‑Quashing of‑‑Complaint and preliminary statements recorded by Trial Court, disclosing prima facie case‑‑Proceedings before Trial Court, held, could not be quashed.

Gianchand v. The State and another 1968 S C M R 380; Khawaja Fazal Karim v. The State and another P L D 1976 SC 461 and M.S. Khawaja v. The State' P L D 1965 SC 287 ref.

‑‑‑S. 561‑A‑‑Delay in lodging F.I.R.‑‑Quashing of proceedings‑ Proceedings pending in trial, held, could not be quashed merely on ground of delay in lodging F.I.R. which might be explained at trial.‑ [Delay‑‑First Information Report].

Ali Nawaz and another v. The State and another 1986 P Cr. L J 411 ref.

Usman Ghani Rashid for Applicants.

Syed Sami Ahmad for Respondents.

A.A. Muhammad Ally, Asstt. A.‑G. for the State.

Date of hearing: 15th June, 1986.

This is an application under section 561‑A, Cr.P.C. invoking inherent jurisdiction of this Court to quash proceedings pending before A.C.M., Court No. VII (South), Karachi.

The proceedings were initiated on a complaint filed by the respondent No.1 against the two applicants who happen to be brother‑in law and sister respectively of the respondent No.1. According to the allegations in the complaint, the respondent No.1 and the applicant No.2 were joint owners of residential House No. C‑52, Block, H, North Nazimabad, Karachi which they had partly inherited from their mother, Mst. Ajeeba Khatoon, after her death and partly acquired through transfer of ownership rights from other co‑heirs in their favour under a deed of relinquishment. It was alleged in the complaint that the applicants, who were husband and wife, in order to dishonestly get possession of title deeds to the said property which were lying in the House Building Finance Corporation, and to deprive the respondent No.1 of his legal rights, fraudulently prepared fake documents through forgery, purported to have been signed and executed by the respondent No.1 and by impersonation got the same attested by an Oath Commissioner. Thus the applicant had jointly committed offences punishable under sections 465, 471 and 419, P.P.C.

The case of the applicant, on the other hand is, that the property in question was mortgaged with the House Building Finance Corporation and the same was to be redeemed after payment of outstanding dues to the said Corporation. As the respondent No.1 failed to pay his share of such dues to the Corporation, the applicant No. 2 was compelled to herself clear the dues and redeem the documents of title to the said property to prevent accumulation of further interest on the same.

I have heard Mr. Usman Ghani Rashid learned counsel for the applicants and Mr. Syed Sami Ahmad learned counsel for the respondent No.1 and Mr. A.A. Muhammadally, learned Assistant Advocate‑General appearing for the State.

The first contention of Mr. Usman Ghani Rashid is, that the complaint fails to disclose any offence as alleged by the respondent No.1. The offences of forgery and making false documents and cheating by personation are defined by sections 463, 464 and 416, P.P.C. respectively. They are as follows:‑

"416. A person is said to 'cheat by personation' if he cheats by pretending to be some other person, or by knowingly substituting one person for another or representing that he or any other person other than he or such other person really is.

Explanation.‑The offence is committed whether the individual personated is a real or imaginary person.

463. Whoever makes any false document or part of a document, with intent to cause damage or injury, the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

464. A person is said to make a false document‑‑First‑‑Who dishonestly or fraudulently makes, signs, seals or executes a document as part of a document or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed; or

Secondly.‑Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration;

Thirdly‑‑Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration.

When judged in the light of the above definition, the complaint filed by the respondent No.1 disclosed a prima facie case of cheating by personation, commission of forgery and using of forged documents by the applicants. Although the applicants assert that the documents to the title of property were obtained by them from the House Building Finance Corporation without any fraudulent intent, but the version of; the applicants will come to light only when evidence in the case is recorded by the learned A.C.M. Pending proceedings can be quashed under section 561‑A, Cr.P.C. if from the allegations made by the prosecution no case is disclosed for which the person complained against; may ultimately be convicted. Such is not the case in the instant case as both the complaint as well as the preliminary statements of the respondent No.1 and his witnesses recorded by the learned A.C.M. disclose a prima facie case under the said provisions of the P.P.C. It will, therefore be highly improper to interfere at this stage of the case and‑stifle the prosecution. To test evidence and ascertain the truth or falsity of allegations in a criminal case is the duty of the trial Court and any interception of the proceedings by this Court when primate facie ease has been made out, would clearly amount to usurpation of the functions of the trial Court which I am sure, instead of preventing would itself constitute abuse of the process of the Court.

Mr. Syed Sami Ahmad learned counsel for the respondent No.1 has vehemently opposed the Criminal Miscellaneous Application and has, also taken me through some cases on the point. An objection was also taken by the learned counsel as to the maintainability of this application since according to him', the applicant has failed to approach the trial Court first under section 249‑A, Cr. P.C. Reliance has been placed in this respect on Mian Munir v. The State 1985 S C M R 257, wherein it was held by the Supreme Court that although the provisions of section 249‑A, Cr.P.C. do not interfere with inherent jurisdiction of the High, Court, and the powers of the High Court and the trial Court under section 249‑A, Cr.P.C. are co‑extensive and concurrent, but ordinarily the trial Court should be approached in the first instance. It was also held at; the same time that the powers vesting in the High Court and the trial Court can both be resorted to by a party and there is nothing in section 249‑A to bar the High Court from entertaining, in an appropriate case, an application under section 561‑A, Cr. P. C directly.

Turning to the merits of the case, the first case cited by Mr. Sami Ahmad is that of Gianchand v. The State and another 1968 SCMR 380, in which the Supreme Court upheld the Judgment of the High Court whereby it had refused to quash proceedings before the trial Court in view of the prima facie case having been found against the accused. In another case reported as Khawaja Fazal Karim v. The State and another P L D 1976 SC 461, it was held by the Supreme Court that inherent jurisdiction of the High Court under section 561‑A, Cr.P. C. was neither alternative nor additional in its character and, therefore, the same was to be rarely invoked and only in the interest of justice so as to seek redress of grievance for which no other procedure is available and that the said provisions should not be used to obstruct or divert the ordinary course of criminal procedure. In M.S. Khawaja v. The State P L D 1965 S C 287, it was observed by the Supreme Court, that to quash a judicial proceeding in order to "secure the ends of justice" would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, in other words, would either operate perpetuate an injustice. It was further observed that to find an "abuse". It would be necessary to see in the proceeding, a prevention of the purpose of the law such as to cause harassment to an innocent party to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue.

The first contention of Mr. Usman Ghani Rashid is, therefore, not acceptable as both the complaint and the preliminary statements recorded by the learned Magistrate disclose a prima facie case against the applicants.

The next argument pressed by Mr. Usman Ghani Rashid, however, was that there had been an inordinate delay in filing the complaint. Reliance was placed by him on Ali Nawaz and another v. The State and another 1986 P Cr. L J 411, a case decided by a Single Judge of this Court. In that case delay in lodging of F.I.R. without explaining the same was considered as one of the grounds for quashing of proceedings. However, even Mr. Usman Ghani Rashid, himself conceded that the facts of this case are distinguishable as there were many other grounds which went in favour of the accused in that case. Whether delay in initiating prosecution in a given case can be fatal to the case depends upon its circumstances. For example if delay in lodging of first information can throw doubt on the truth of allegations made by the complainant, then delay can be considered as one of the factors which may ultimately make the prosecution case doubtful. A similar question in regard to delay in the lodging of F.I.R. came to be discussed before the Supreme Court in M.S. Khawaja v. The State, the case to which I have just referred, and it was held by the Supreme Court that limitation does not apply to criminal prosecution, as it was considered as inappropriate to examine question of delay through the actions of the Government, or the prosecution Authorities as if they gave rise to equities on the same footing as in a civil matter inter partes.

Therefore, the proceedings pending in the trial Court cannot be quashed merely on the ground of delay which may be explained by they' complainant when evidence is recorded in the case.

It is, therefore, clear that the applicants have failed to make out a case for interference by this Court in the exercise of its inherent jurisdiction to quash the proceedings before the learned A.C.M. It was for these reasons that this application was dismissed by a short order, dated 15‑6‑1986.

S.A. /N‑1/K Quashment declined.

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