Niaz Muhammad Vs Rangeen Khan etc.

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

JUDICIAL DEPARTMENT.

Writ Petition No.5813-P/2024

J U D G M E N T

Date of hearing : 19th September, 2025

Petitioner : By Mr. Amin-ur-Rehman (Niaz Muhammad) Yousafzai, Advocate.

(Rangeen Khan) : By Mr. Changez Khan, Advocate.

Assistance : By Riaz Aslam Daavi, SRO PHC

S. M. ATTIQUE SHAH, CJ.- Petitioner, through the instant writ petition, has called into question the judgment / order dated 18.10.2024 passed by the learned Additional District Judge-IV, Swabi, whereby the revision petition filed by the petitioner against the order dated 23.05.2024 of the learned Civil Judge-V, Swabi / Trial Court, dismissing his application for initiation of proceeding against respondent Rangeen Khan under section 476 CrPC, has been dismissed.

2.Heard. Record perused.

3.Record reflects that the respondent herein, Rangeen Khan, instituted a suit for pre-emption against the present petitioner, Niaz Muhammad, before the learned Civil Judge-VI, Swabi, in the year 2022. Along with the institution of the said suit, the respondent also filed an application for grant of temporary injunction. However, as is evident from the perusal of the order sheets of the learned trial court, no arguments were heard on the said application for interim relief from 22.02.2022 till 21.06.2024.

4.It is an admitted fact that no injunctive order was ever passed in favour of the respondent-plaintiff and even arguments were also not heard on the aforementioned application for temporary injunction, as already highlighted above. Despite this, the respondent-plaintiff continued to file successive applications seeking extension of an alleged injunctive order. Surprisingly, on multiple occasions, extensions were granted in favour of the respondent-plaintiff, although no such injunctive order ever existed on record. This irregularity is not borne out from any entry in the order sheets of the learned trial court. Rather, it appears that the respondent-plaintiff succeeded in obtaining favourable orders by way of manipulation through the filing of successive applications, as is evident from the applications dated 20.11.2023, 27.11.2023, and 15.01.2024.

5.It is indeed unfortunate and reflects a serious procedural irregularity that, on the one hand, the learned trial court repeatedly recorded in its order sheets that arguments on the application for temporary injunction had not been heard, yet on the other hand, the same court proceeded to grant what appears to be injunctive relief in favour of the respondent- plaintiff. This contradictory conduct on the part of the learned trial court is not only inconsistent with the established principles of law and procedure but also raises serious questions regarding the propriety and transparency of the proceedings. The record does not disclose any speaking or reasoned order granting interim relief, nor does it reflect that

the matter was argued or adjudicated upon in accordance with law. Nevertheless, the respondent-plaintiff appears to have benefitted from orders which, in effect, operated as injunctive relief, for reasons best known to the learned trial court. Such practice is not only alien to the settled judicial norms but also detrimental to the rights of the petitioner, who continues to be prejudiced by the enforcement of orders that have neither legal foundation nor procedural justification.

6.It has now become abundantly clear from the record that no order was ever passed by the learned trial court on the application for temporary injunction filed by the respondent-plaintiff prior to the filing of his subsequent application dated 20.11.2023, wherein he sought an extension of an alleged status quo order. Furthermore, there is nothing on record to show that arguments were ever heard on the said application, despite the matter being fixed for arguments on several occasions preceding the passing of the impugned order dated 23.05.2024. In fact, the consistent entries in the order sheets reflect that the application for interim relief remained unheard throughout this period. Yet, inexplicably, the respondent-plaintiff was able to secure orders purportedly extending a non-existent status quo, thereby misleading the court and adversely affecting the rights of the petitioner. Even more concerning is the apparent tampering and manipulation of judicial record with the objective of creating a false impression that interim relief had already been granted and was subsequently extended. This seems to have been done to

bring the judicial record into conformity with the mala fide and misleading plea of the respondent-plaintiff, which is not borne out by any lawful proceedings or orders on file. Such actions not only destabilize the sanctity of the judicial process but also warrant strict legal scrutiny and appropriate action in accordance with law.

7.In the impugned judgment, reliance was placed on PLD 2023 Supreme Court 298 and 1976 SCMR 10, wherein it was held that the powers under Section 476 CrPC are discretionary in nature. Indeed, such powers are discretionary, but they are to be exercised judicially and not arbitrarily, keeping in view the facts and circumstances of each case. However, it has never been held that such discretionary powers are to be abandoned, suspended, or withheld without any reasonable ground. The superior courts have only regulated their exercise with the direction that they must be used judiciously. In the present case, when it is an admitted fact that no status quo order was ever granted by the trial court, the question arises as to why the respondent- Plaintiff submitted an application asserting that such an order had been granted and sought its extension. The court concerned also erred by not requisitioning the record or requiring an attested copy of the original status quo order.

However, the respondent, without any fear of consequence and without anticipating the outcome of such misrepresentation, dared to submit an application founded on falsehood. One possible approach could have been to ignore

this act by adopting a policy of judicial restraint, but such restraint is not warranted here. It must be noted that a policy of judicial restraint is as undesirable as judicial overreach. Where the law empowers a court to act, but the court abstains from exercising that power, such abstention cannot be termed judicial restraint; rather, it amounts to rendering the law redundant. Courts, being the arbiters of law, cannot permit such redundancy. It is widely believed that the menace of false and frivolous litigation has become one of the gravest problems of our judicial system. Extreme leniency and misplaced restraint have indirectly encouraged litigants to mislead and cheat the courts. Such conduct cannot be tolerated, nor can it be overlooked on the pretext of the discretionary nature of powers under Section 476 CrPC.

8.Another striking and deeply concerning aspect of the present case is that the suit along with the application for temporary injunction, was initially filed by the respondent- plaintiff through duly engaged counsel. However, it is both unusual and legally questionable that the respondent-plaintiff subsequently chose to file multiple applications in his personal capacity without the signature or endorsement of his counsel on record. Even more concerning is the fact that most of these applications were filed without accompanying affidavits, as is evident from the record. This pattern of conduct raises serious doubts about the bona fides of the respondent-plaintiff, who appears to have deliberately bypassed proper legal procedure in an attempt to mislead the learned trial court and secure

favourable orders through extra-legal means. The manner in which these unauthenticated and improperly filed applications were entertained also suggests possible misrepresentation and abuse of process.

9.In view of the above, it can safely be concluded that the respondent–plaintiff has engaged in foul play and misused the judicial process by committing acts that prima facie fall within Sections 193, 199, 200 and 209 of the Pakistan Penal Code, 1860. When such offences are committed in relation to the administration of justice, a bar has been imposed under section 195 of Criminal Procedure Code 1898 that cognizance of these offences shall only be taken on the basis of a complaint made by the concerned court or a public servant. However, this bar has been relaxed through Section 476 of CrPC, which provides that offences mentioned in Section 195, subsection (1), clauses (b) and (c) CrPC may be taken cognizance of by the court itself. Accordingly, under Section 476 CrPC, a civil court, criminal court or revenue court may take cognizance of offences under Sections 193 to 196, 199, 200, 205 to 211, 228, 463, 471, 475 and 476 PPC. In light of above, respondent–plaintiff is liable to be proceeded against under the provisions of Section 476 CrPC, which empowers the court to take cognizance and initiate appropriate criminal proceedings where offences affecting the administration of justice appear to have been committed.

10.When examined in the above backdrop, it

becomes evident that the learned courts below have failed to appreciate the material available on record in its true and correct perspective. The dismissal of both the application and the revision petition filed by the petitioner-defendant appears to be based on a misreading of the record as well as a failure to address the procedural improprieties and unlawful advantage obtained by the respondent-plaintiff. The findings recorded by the learned courts below suffer from gross illegality and material irregularity thereby occasioning a miscarriage of justice. Such non-application of judicial mind and disregard for the settled principles of procedural law render the impugned orders unsustainable in the eyes of law and warrant interference by this Hon’ble Court in exercise of its constitutional jurisdiction. In the given circumstances, the interference of this Court is not only justified but also imperative to prevent the abuse of the process of law and to safeguard the rights of the petitioner. Accordingly, this Court finds merit in the present writ petition and is not hesitant in its mind to allow the same in the interest of justice. It has been held by superior courts that where offences relating to perjury, fabrication of evidence, forgery, or obstruction of justice arise during proceedings, Courts may exercise their authority under Section 476 CrPC to initiate appropriate action through summary trial, thereby discouraging false testimony and

frivolous claims. In the case of Abdul Hakeem1, the apex court held in the following words:-

“However, section 195, Cr.P.C. has to be read with 'section 476, Cr.P.C., which provides procedure in cases mentioned in section 195 (1) (b) (c), Cr.P.C. Every civil, criminal or revenue Court is empowered and has the discretion to take cognizance of the offence referred in section 195 (1) (b) or (c), which has been committed in or in relation to a proceeding before it and try the same in accordance with the procedure prescribed for summary trial in Chapter XXII, Cr.P.C. Such procedure can be adopted by the Court at its own discretion, which should be exercised judiciously and not arbitrarily, taking into consideration the facts and circumstances of the case. Such summary procedure is intended to prevent the abuse of the process of law and to punish the offender by a summary trial which is necessary to establish confidence in Court, authority of Court and process of law. The false and fabricated evidence which diverts or is intended to divert the course of justice or abuse the process of law and Court, shakes the confidence of people in the administration of justice which should be zealously guarded. Section 476, Cr.P.C. thus provides a procedure other than the one mentioned in section 195, Cr.P.C., and authorises the Court to try the case itself.”

The same view has been fortified in a recent case of Qazi Naveed Ul Islam2 by Supreme Court of Pakistan. As to the contention of the respondent that no private complaint can be filed for invoking Section 476 CrPC, this Court had long ago clarified the matter in the case of Sher Adat Khan3 in the following words:-

“However, the Court may take cognizance of the matter if it finds that perjury or forgery has been committed in his Court either suo motu or on the application or a private person or an

1994 SCMR 1103

2023 PLD Supreme Court 298

1989 PCrLJ 1299 Pesh

aggrieved person under section 476, Cr.P.C. But in that case it would not be treated as a complaint because in such a situation the Court itself is the complainant. Since in this case complaint was filed in the Court from which a fraudulent decree had been obtained by playing fraud upon the Court, it would be presumed that the Court was to proceed under the powers vested in under section 476, Cr.P.C. and thus the complaint filed in that Court would be deemed to be an application and not stricto senso a complaint.”

Thus, in light of the above, proceedings under Section 476 CrPC can be initiated, and a private person may also bring the offences mentioned therein to the notice of the concerned court. The court, upon being apprised, is bound to act judicially after perusal of the record and to respond proactively if it has been misled or deceived.

11.It is pertinent to note that before passing any order for extension of status quo or temporary injunction, the court shall requisition the original record. The order of extension shall specifically mention and refer to the first order through which status quo was initially granted. If, for any reasonable cause, the original record cannot be requisitioned, then an attested copy of the original order granting status quo shall accompany the application through which extension is sought. Merely writing the words “allowed” or “status quo extended” shall be avoided, as every judicial order must be a reasoned and speaking order. Section 24-A of the General Clauses Act, 1897 lays down that whenever any authority, officer or person is empowered under law to pass an order or issue a direction, such power must be exercised in a fair, just and reasonable manner, keeping in view the purpose of the

law under which the power is conferred. It further requires that reasons must be recorded for making such an order or issuing such a direction, wherever necessary or appropriate, and a copy of the same must be provided to the person who is adversely affected by it.

12.For the reasons discussed hereinabove, this Court is of the considered view that the impugned findings recorded by the learned courts below are not sustainable in law.

Accordingly, the present writ petition is allowed, and the impugned orders passed by the learned courts below are set aside. The learned trial court is directed to initiate proceedings against the respondent-plaintiff in accordance with the mandate of Section 476 CrPC and to adjudicate the matter strictly in accordance with law, after affording due opportunity of hearing to all concerned parties. The learned trial court shall ensure that the proceedings are concluded expeditiously and without unnecessary delay. Additional Registrar (Judicial) of this court is directed to circulate the copies of this judgment amongst district judiciary for guidance.

Announced

19. 09. 2025 CHIEF JUSTICE

(S.B) Justice S. M. Attique Shah, HCJ