Syed Musawar Abbas Vs Syed Tahir Abbas Bukhari etc

JUDGMENT SIIEET

IN TIIE PESHAWARIIIGH COI'RT'

BA}IIUBENCII

(Judicial Departrnent)

C Misc: AN -w2

Syed Musawar Abbas.

Versus Syed Tahir Abbas Bukhari erc.

Date of hearing 12.09.2025,

For petitioner:- Messrs' Farooq Khan Sokari and Hujat Ullah I(han Marwat, advocates.

For the State:- Mr. Muhammad Asghar khan Ahmadzai, Addl: A.G.

For respondents:- Faqir Mehbub-ul-Hamid and Masood Adnan, advocates.

**lt:t**

ABDUL FAYAZ,J.-

I Through this bail cancellation petition, Syed Musawar Abbas petitioner (complainant), has called in question the order dated 05'10.2024 rendered by the leamed Additional Sessions Judge- V Lakki Marwat, whereby pre-arrest bail application filed by the accused/ respondent, in a criminal case vide F.I.R No.704 dated 29.09.2024 registered ulss 42014681471 P.P.C, at Police Station, Lakki City, Distict Lakki Marwat, was

accepted consequently the earlier granted pre- arrest bail to petitioner was confirmed.

2.The complainant, Syed Musawir Abbas, moved an application alleging therein that the respondent/accused, with a view to counter the case arising out of F.I'R No. 607 dated 11.08.2024, registered under Section 324 P.P.C. at Police Station Lakki City, Distict Lak&i Marwat, had procured and fabricated a forged and fictitious medical report, which was subsequently placed before the learned Justice of Peace through a petition under Section 22-A CI.P.C, but the same was dismissed. It was further averred that upon proper inquiry, the documents in question were found to be forged by the Inquiry Offtcer, and consequently, the present F.I.R. was registered after completion of inquiry under Section 157(i) Cr.P.C.

3.Arguments of leamed counsel for the parties and leamed AAG for the State heard and the available record perused.

4, Perusal of the record reveals that though the F.I.R. reflects the date of occurrence as 11.08.2024, while the matter was reported on

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16.09.2024, whereas, formal registration of the F.LR was effected on 29.09.2024. the final report as well as the complainant's application does not specify t}re exact date of incident. Thus, no plausible explanation has been fumished by the prosecution for the said inordinate delay of more than a month. Moreover, though one Syed Imran Munawar had moved an application dated 27.08.2024 to the Medical Officer, D.H.Q.

Hospital, Dera Ismail Khan, but he was never examined under Section 16l Cr.P.C.

r. The record further reflects tJrat the accused had relied upon the alleged forged documents in a petition under Section 22-A Cr.P.C. before the learned Justice of Peace, which stood dismissed vide order dated 12.09.2024. In this tlre fundamental issue arises as to the competence of the complainant or any private individual to lodge the present F.LR. The law is well settled that where Section 195 Cr.P.C. is attracted, the authority specifically mentioned therein alone is vested with jurisdiction to proceed, and initiation by any private person is barred to

that extent. Here for the sake of convenience, the relevant Section 195(l)(c) is reproduced as under:- "(c) Prosecution for certain offences relating to documents given in evidence; 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 proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate."

6.Hence, the mandate of Section 195(l)(c) Cr.P.C. unequivocally provides that only the Court or authority specified therein is competent to initiate proceedings in respect of such forgery, to the exclusion of any private person. Reliance is placed on the case 'Abdul Nabi and another v.

Syed Mukhtar and another" [2003 P.Cr.L.J 12421, the relevant portion of the judgment ls:- " In view of section 195(l)O), Cr.P.C. the private person has no authority to file a complaint therefore, the Magistate had no jurisdiction to take cognizance of such complaint. According to law ordinarily any person can prefer complaint but section 195, Cr.P.C. is exception to general rule of the character of certain offences as affecting the lawfrrl authority of public servants or public justice. The right to prosecute under the relevant sections has been resticted and Courts are prohibited from taking cognizance of the offences mentioned therein unless and until the public sewants or the Courts directly concemed or their superior officers or Court themselves make the complaint. The principle under relying

section 195 is that in regard to offences mentioned therein private prosecutions are absolutely baned,

In view of above position, the continuation of proceedings before the Judicial Magistate is abuse of process of Court therefore, the proceedings are quashed, the application is allowed."

7.It is noteworthy that the offence under Section 420 P.P.C, is bailable, while those under Sections 468 and 471 P.P.C, are non-cognizable.

Hence, no useful purpose would be served by allowing the instant bail cancellation petition by recalling the bail granting order. Moreover, the alleged offences do not fall within the prohibitory clause of Section 497 Cr.P.C, and no exceptional circumstances have been demonstrated to warant cancellation ofbail already granted, which appears tainted by mala fide on part of police and

8.The impugrred order has been examined in its entirety, wherein the learned Judge has aptly addressed the material aspects of the matter, and his reasoning is found to be in consonance with law. It is a well-settled principle that once a Court ofcompetentjurisdiction grants bail to an accused, its recall can only be justified in the presence of

extraordinary circumstances or on attraction of the grounds laid-down by the Superior courts, which are conspicuously absent in the present case.

Reliance is placed on the case "Ahmad Shakeel Bhstti and others v. The State and others" 12023 SCMR 011, the relevant portion of the judgment is asi-

" 9. The scope of interference to be made against the grant of bail by this Court in its appellate jurisdiction is well settled and hardly needs reiteration. Cancellation of orders granting bail arc ordinarily resorted by the Court on two grounds: (i) when the impugned order is perverse on the face of it or (ii) when the impugned order has been made in clear disregard of some principle of the law of bail. A peryerse order is one that has been passed against the weight of the material on the record or by ignoring such material or without applying the relevant legal criteria or without giving reasons. Such an order is also termed as ar bitrary, whimsical and capricious. None of these grounds for cancellation of bail are attracted in the present case. Consequently, we are not inclined to interfere in the impugned order of the High Court. Accordingly, leave to appeal is declined in Criminal Petition No.l197-L of 2021, and it is dismissed."

9.We have also been informed that the trial has been commenced in tJre court of Senior Civil Judge (Judicial), wherein the charge has been framed, in such an eventuality the court should not grant or cancel bail when the trial is in progress.

As the trial is in progress, therefore, any findings

over the merits of the case would pre-judice either party. Reliance is placed on the case "Makhdoom Haider Shah u Mustafa Haider Shah and another" [2025 MLD 3971, the pertinent Para is as:-

'5. Today at the very outse! leamed counset for both the parties stated Olat the tial in this case has already been commenced, however, the leamed counsel representing the petitioner stated that the tial was even in progress at the time of granting bail to the other co-accused, therefore, only commencement of hial may not be considered as a ground for dismissal of this bail cancellation application, however, such submissions of leamed counsel for the petitioner are not in line with the observations made by Honble Apex Court in many cases an in a case the Hon'ble Apex Court has held that when the tial is about to commence bail cancellation petition should not be encouraged so as to avoid any discussion or remarks on merits of the case, Similarly, in the case the Honble Apex Court has held ttrat the Court should not grant or cancel bail when the nial is in progress. "

10.Resultanfly, the instant bail cancellation petition being devoid of merit is hereby dismissed.

'Imranallah PS. -sd- (j'-B) Hon'ble Mt, Iustlce Atulal Fayaz