The necessary facts giving rise to this petition are that on 31.12.1999 an agreement to sell was allegedly executed on a stamp-paper whereby one Boota had agreed to sell his agricultural land measuring 20 Kanals and 18 Marlas situated in Mauza Hardaspur, Tehsil and District Gujrat in favour of the present petitioner and statedly a sum of Rs, 1,30,000.- was paid by the petitioner to the said Boota in that regard out of a total consideration of Rs, 3,75,000/- and the balance was agreed to be paid by the petitioner within the next two years. Subsequently the said Boota statedly sold 12 Kanals and 18 Marlas out of the same land to Respondent No, 3 acting through his general attorney Respondent No, 4 on 25.6.2001 for a consideration of Rs, 7,00,000/- through Mutation No, 2115. On 30.7.2001 the petitioner filed a suit for specific performance of the above mentioned alleged agreement to sell against the said Boota as well as Respondent No, 3 before a Civil Court at Gujrat.
On 4.9.2001 separate written statements were filed by Boota and Respondent No, 3 before the learned Civil Court wherein Boota denied executing any agreement to sell in favour of the petitioner and Respondent No, 3 maintained that the alleged agreement to sell was a forged document. On 30.5.2002 Respondent No, 3 filed Writ Petition No, 9251 of 2002 before this Court seeking issuance of a direction to the local police to register a criminal case against the petitioner and others which petition was disposed of by this Court on 31.5.2002 with a direction, to the Senior Superintendent of Police Gujrat, to forward the matter to the Police Complaints Authority which would attend to the grievances of the writ petitioner and would pass appropriate orders in that regard as found warranted in the circumstances. As a consequence of the said order of this Court the Senior Superintendent of Police, Gujrat entrusted an inquiry into the allegations of Respondent No, 3 to the Deputy Superintendent of Police, Headquarters, Gujrat who found the allegations of Respondent No, 3 to be prima facie correct and resultantly F.I.R No, 538 was registered at Police Station, Civil Lines, Gujrat on 5.7.2002 at the instance of Respondent No, 3's general attorney Respondent No, 14 against the petitioner and others for offences under Sections 420, 468, 471 and 474, P.P.C. The petitioner has sought quashing of the said F.I.R. before this Court through the present petition.
2. In support of this petition the main thrust and emphasis of the learned counsel for the petitioner has been based upon the provisions of clauses (3) of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973 regarding separation of the Judiciary from the Executive. According to the learned counsel for the petitioner a Station House Officer receiving an information about commission of an offence cannot perform a judicial power of deciding whether an offence has actually been committed or not so as to register a criminal case in that regard straightaway.
According to Mr. A.K. Dogar, the learned counsel for the petitioner, a judicial power can be enjoyed and exercised only by a Court and the police cannot form an opinion whether a case is made out or not on the basis of an allegation as such formation of an opinion is a function which is quasi judicial in nature. According to him a Station House Officer cannot form an opinion whether the information supplied to him discloses an offence or not for the purposes of the provisions of Section 154, Cr.P.C. as formation of an opinion in that regard is a step towards performance of a judicial function. According to Mr. Dogar the provisions of Section 154, Cr.P.C. envisage that an offence must have actually been committed before registration of an F.I.R. in that regard and the said provisions are not attracted to a case where it is yet to be established whether any offence has actually been committed or not. He has maintained that a Station House Officer is not to act in a mechanical manner upon receiving an information regarding commission of an offence and he is required to confirm whether any offence has actually been committed or not before he proceeds to register an FIR. in respect of such an information or allegation. It has further been maintained by him that upon receipt of an information regarding commission of an offence the provisions of Section 154, Cr.P.C. do not require a Station House Officer to act as a post office but he is required to apply his independent mind and to form an opinion as to whether any crime has been committed or not and whether such a crime is cognizable or not. In the words of Mr. Dogar "an S.H.O. or any police officer cannot be invested with a power to decide whether the dispute between the parties as presented before him is one of civil nature or not because that function is to be performed by the judiciary and not by an executive authority. To look at a statement and to apply a particular law and then to state that the facts full under the mischief of a particular law is a judicial function as formation of an opinion with respect to application of a law, even for prima facie purposes, is a judicial function because a person forming such an opinion is making a judgment as distinguished from a ministerial power". While pressing into service the Constitutional doctrine of separation of powers he has maintained that the said doctrine ensures protection of freedom and liberty of citizens by avoiding concentration of powers in one hand as such concentration poses a threat to liberty of citizens. He has added that "an S.H.O is generally considered to be invested with the power to decide whether a dispute is of civil nature or not whereas there are cases where an S.H.O has been held not to have this power and there are also cases where police officers have been found to be abusing their powers by converting a civil dispute into a criminal dispute by chalking out F.I.R.s being in collusion with the complainant party". In support of these submissions the learned counsel for the petitioner has relied upon the provisions of Sections 154, 157 (1) (b), 169 and 170, Cr.P.C. and has also referred to the following precedent causes: 1999 P.Cr. L.J. 1357 (Abdul Latif v. Inspector-General, Police and others).
PLD 1999 S.C. 504 (Sh. Liaqat Hussain and others vs.- federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others).
PLD 1998 S.C. 1445 (Mehram Ali and others v. Federation of Pakistan and others).
PLD 1989 Peshawar 145 at page 149 (Byram D. Avari and 3 others vs. The State and 4 others).
PLD 2001 Lahore 399 (Iftikhar Ahmad and another v. S.H.O. Police Station Kohsar, Islamabad and 2 others)
2000 SCMR 122 at page 125 (Miraj Khan v. Gul Ahmad and 3 others).
AIR 1945 P.C. 18 at page 22 (Emperor v. Khwaja Nazir Ahmad).
AIR 1938 Madras 129 at page 130 (M. M. S.T. Chidambaram Chettiar v. Shanmugham Pillai).
PLD 1989 Karachi 404 at page 431 (Sharif Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another)
PLD 1994 S.C. 105 at page 116 (Government of Sindh through Chief Secretary to Government of Sindh, Karachi and others).
Mr. Dogar has also referred in this context to the definition of 'Judicial Branch' contained in the 5th Edition of Black's Law Dictionary at Page 760 as also the definition of 'Executive Branch' contained in the same dictionary at Page 510. He has further referred to and read out some passages appearing on Pages 129 and 130 of Harold-J. Laski's book titled 'Grammar of Politics' emphasizing the importance of separation of judicial functions from executive functions so as to safeguard the liberties of citizens.
3. Mr. Dogar has also maintained that the police can undertake an investigation even before registration of an F.I,R and in this context he has referred to the cases of Emperor v. Khawaja Nazir Ahmad [AIR 1945 P.C. 18], M. Bashir Saigol and another vs. The State and another [PLD 1964 Lahore 148], Muhammad Anwar v. The State [1968 P.Cr. L.J. 1597], Taj Muhammad alias Tajoo v. The State [1991 P.Cr. L.J. 2167], Riaz Ahmad and 3 others v. The State [PLD 1994 Lahore 485] and Mst. Sajida Parveen v. Ashiq Ali and 3 others [PLD 1998 Lahore 3]. According to Mr. Dogar in cases of offences which arise out of civil transactions a complaint under Section 200, Cr.P.C. before a Magistrate is an appropriate remedy and not registration of an F.I.R. in that regard. It has also been argued by him that an F.I.R. registered in respect of a transaction which is already pending consideration before a Civil Court ought to be quashed and in this regard he has referred to the cases of Iftikhar Ahmad and another vs. S.H.O. Police Station Kohsar, Islamabad and 2 others [PLD 2001 Lahore 399] and Muhammad Siddiq v. Rashid Ahmad Ch. And another [1998 MLD 686]. He has gone on to maintain that in all those cases where criminal liability is dependent upon the result of civil litigation there criminal proceedings must be stayed during pendency of the civil suit and in this context a reference has been made to the case of Muhammad Akbar v. The State etc. [PLD 1968 S.C. 281]. It has further been argued that where proceedings are mala fide in nature and have been initiated for an object other than that intended by the law then the same amount to an abuse of the process of criminal law and need to be struck down. The cases of Mian Fazal Ahmad v. Station House Officer, Gulberg Liberty Market, Lahore and '3 others [PLD 2002 Lahore 164], M. Hafeez Ahmad and others vs. The State and others [2001 P.Cr. L.J. 218] and Miraj Khan v. Gul Ahmad and 3 others [2000 SCMR 122] have been referred to by him in this respect. It has lastly been argued by him that the impugned F.I.R. had been registered in this case in pursuance of an order passed by this Court in Writ Petition No, 9251 of 2002 which order had been passed by this Court without affording of an opportunity of hearing to the petitioner and, thus, the petitioner had been condemned unheard. It has been added that in a case of breach of principles of natural justice an impugned order or action is ordinarily to he set aside. With all these submissions the learned counsel for the petitioner has argued that the impugned F.I.R. registered against the petitioner ought to be quashed by this Court.
4. While opposing this petition the learned, counsel appearing for Respondents Nos, 3 and 4 have maintained that civil as well as criminal proceedings can be pursued simultaneously in respect of the same or similar allegations and there is no universal principle prohibiting such a course from adoption. They have relied upon the cases of Mst. Gul Raza and others v. The State and others [2002 PCr. L.J. 9] and Mian Ghulam Yasin u. S.H.O Police Station Chehal Yak District Multan and another [KLR 1997 Cr.C. 581] in this regard. They have further argued that the law is quite settled that this Court ordinarily ought not to scuttle or stifle the investigation of a criminal case as the police are under a statutory duty to conduct such an investigation. In this respect they have placed reliance upon the cases of Haji Abdul Latif Memon v. Government of Sindh through Chief Secretary.
Home, Department, Karachi and 2 others [1999 YLR 577], Mian Ghulam Yasin v. S.H.O. Police Station Chehal Yak, District Multan and another [KLR 1997 Cr.C. 581] and Syed Muhammad Ahmad v. The State [1972 SCMR 85]. The learned counsel for Respondents Nos, 3 and 4 have also pointed out different steps taken during the investigation of the impugned F.I.R. conducted thus far and have vehemently argued that the allegations levelled by the complainant against the petitioner regarding commission of cheating, forgery and fraud have sufficiently been established during the investigation conducted till now. They have lastly maintained that a perpetrator of serious criminal offences affecting a citizen's property ought not to be allowed to use a civil suit instituted by him in that regard as a shield against investigation of the crimes allegedly committed by him. The learned counsel for Respondents Nos, 1 and 2 has supported the stated taken by the learned counsel for Respondents Nos, 3 and 4 and has maintained that the investigation of the impugned F.I.R. conducted so far has disclosed that the allegations of the complainant against the petitioner are prima facie not without substance.
5. After hearing the learned counsel for the parties, particularly the learned counsel for the petitioner, at great and unusual length and going through the record of this case with their assistance I must confess that I have felt rather surprised at the main submission advanced by the learned counsel for the petitioner, who has considerable experience at the bar and is a lawyer of some eminence, based upon the constitutional doctrine of separation of powers between the Judiciary and the Executive. With respect to the learned counsel's seniority and ability I must also admit that I have failed to find any relevance of the said submission to the case in hand. His main argument before this Court based upon the constitutional doctrine of separation of powers practically wants this Court to rewrite the Code of Criminal Procedure, especially the provisions relating to registration of an F.I.R. and investigation of a criminal case. I have been amazed, and also amused, by his argument that a Station House Officer exercises a judicial function at the time of registration of an F.I.R. Section 4(m); Cr.P.C. defines `judicial proceeding' as a proceeding in the course of which evidence is or may be taken on oath and even the learned counsel for the petitioner had to admit before me that a Station House Officer cannot take evidence before him on oath. It had been observed by the Hon'ble Supreme Court of Pakistan in the case of Bahadur and another v. The State and another [PLD 1985 S.C. 62] that Judges sometimes administer and administrators sometimes Judges but this does not necessarily by itself make all such proceedings to be judicial in nature. Apart from that a mere tentative assessment of certain facts by an executive functionary cannot be automatically termed as a judicial function of such a functionary so as to, attract the provisions of clause (3) of Article 175 of the Constitution of the Islamic Republic. of Pakistan, 1973 and for pressing into service the requirement of separation of the Judiciary from the Executive. The arguments addressed by the learned Counsel for the petitioner in this regard also overlook the legal position that the words "every information relating to the commission of a cognizable offence" appearing in Section 154, Cr.P.C. pertain only to the information so supplied and do not pertain to actual commission of a cognizable offence. These provisions are universally accepted to mean that the information supplied should be about an alleged commission of a cognizable offence irrespective of the fact whether such information is ultimately proved to be correct or not and also irrespective of the fact whether ultimately such an offence is found to have been actually committed or not. All that a Station House Officer is to be satisfied with at such. A stage is that the information is in respect of an offence which is cognizable. The argument of the learned counsel for the petitioner that a Station House Officer is to form an opinion at such a stage whether any cognizable offence has actually been committed or not does not fit into the scheme of the Code of Criminal Procedure as is evident from the provisions of Sections 154, 155, 157, 167, 169 and 170, Cr.P.C. which highlight a clear distinction between an "information" and an "investigation" during which the information received earlier on may or may not be found to be correct. The provisions of Rule 24.7 of the Police Rules, 1934 also clearly demonstrate that it is during the investigation of a case after registration of an F.I.R. that an investigating officer is to form an opinion whether the said information leading to registration of the F.I.R is correct or false and also whether falsity of that information is owing to a mistake of law or of fact. The scheme of Chapter XIV in Part V of the Code of Criminal Procedure is very clear and according to the same every information relating to mmission of a cognizable offence is to be reduced to writing as an F.I.R. and then an opinion is to be formed subsequently during the investigation regarding such information's correctness or falsity. The cases of M. Anwar Barrister-at-Law v. The Station House Officer, Civil Lines, Police Station, Lahore and another [PLD 1972 Lahore 493], Nazir Ahmad v. Khushi Muhammad and 2 others [1974 P.Cr. L.J. 579] and Ghiasuddin v. Station House Officer, Police Station Pindi Bhattian [1983 P.Cr. L.J. 1085] clearly recognize the said scheme of the Code of Criminal Procedure.
In this view of the matter the above-mentioned main argument of the learned counsel for the petitioner in this case appears to be utterly misconceived and his submissions regarding separation of the Judiciary from the Executive and his reference to the constitutional doctrine of separation of powers in the context of the present case are totally irrelevant.
6. The argument of the learned counsel for the petitioner that the petitioner had been condemned unheard in Writ Petition No, 9251 of 2002 does not advance the case of the petitioner any far as no order adverse to the petitioner had been passed by this Court in that writ petition and the matter was simply referred by this Court to the Senior Superintendent of Police, Gujrat so that the same could be attended to by the Police Complaints Authority constituted in terms of the judgment rendered by a learned Division Bench of this Court in the case of Hazoor Bakhsh v. Senior Superintendent of Police, Rahimyar Khan and '12 others [PLD 1999 Lahore 417]. Even otherwise it has already been held by this Court in the case of Saeed Ahmad and others v. Naseer Ahmad and others [PLD 2000 Lahore 208] that an accused person cannot claim an opportunity of hearing before registration of an F.I.R. against him or before passage of an order in that regard by a Court.
Apart from that it has been conceded by the learned counsel for the petitioner that the order dated 31.5.2002 passed by this Court in Writ Petition No, 2951 of 2002 had never been challenged by the petitioner through an Intra-Court Appeal before a Division Bench of this Court or before the Hon'ble Supreme Court of Pakistan and the said order had never been resisted by the petitioner before it was acted upon and implemented.
7. During the hearing of this petition the learned counsel for the respondents had taken me through the record of investigation of this case conducted thus far by the police. The record shows that in his written statement filed before the learned Civil Court the alleged alienor namely Boota had disowned the agreement to sell being relied upon by the petitioner and even before the investigating officer of the present criminal case the said Boota had made a statement under Section 161, Cr.P.C. contradicting the petitioner's stand in respect of the said agreement to sell.
Zulfiqar Ali, Stamp vendor had maintained before the police that. he had never issued the stamp- paper on which the agreement to sell being relied upon by the petitioner was executed.
Muhammad Yousaf, the scribe of the said agreement to sell, had stated before the police that the agreement to sell had not been scribed by him upon the instructions of Boota and the document in question had been scribed in the month of July, 2001 and not on 31.12.1999 as maintained by the petitioner. The learned counsel for Respondents No, 3 and 4 have vociferously maintained that the said document had been forged by the petitioner only to gain an advantage in connection with a pre-emption suit filed in the year 2001 in respect of sale of land by the above-mentioned Boota in favour of Respondent No,
3. It may not be out of place to mention here that this Court had found in Writ Petition No, 2951 of 2002 that the allegations levelled against the petitioner needed to be attended to and subsequently a Deputy Superintendent of Police deputed by the Senior Superintendent of Police, Gujrat had found such allegations against the petitioner to be prima facie correct and it was then that the impugned F.I.R. was registered against the petitioner. The original agreement to sell is yet to be recovered from the petitioner's possession and in the circumstances of this case it appears that the local police may be in a better position to recover the said document from the petitioner's possession than the learned Civil Court. Without prejudice to the case of either party it may be observed that a tentative visual comparison of the admitted signatures of Boota available on his written statement filed before the learned Civil Court with his alleged signatures on a photocopy of the agreement to sell being relied upon by the petitioner highlights the necessity of allowing further and continued investigation of the impugned F.I.R. In this view of the matter the submission of the learned counsel for the petitioner regarding mala fide registration of the impugned F.I.R. does not appear to be of much substance.
8. The remaining submissions made by the learned counsel for the petitioner are somewhat similar, if not identical, to those advanced by the same learned counsel before this Court in connection with Writ Petition No, 18595 of 2002 (Azra Israr v. The Inspector-General of Police, Punjab, etc.) which had been dismissed by this Court on 1.11.2002. The said submissions of the learned counsel for the petitioner had been specifically dealt with and rejected by this Court for the following reasons: "9. Adverting now to the submissions of the learned counsel for the petitioner made in respect of FIR No, 602/2002 registered at Police Station Lower Mall, Lahore it may straightaway be observed that by virtue of the provisions of Sections 463 and 464, PPC making of a false document to support a claim with intent to commit a fraud is an offence and playing deception or acting with dishonest or fraudulent intention in the making of a document is included in the offence of forgery contemplated by the said provisions. The FIR in question expressly and specifically alleged such deception having been played upon Respondent No,
8. In these circumstances it cannot be urgea with any degree of seriousness that the allegations, levelled in the said FIR did not disclose any offence at all. The detailed arguments addressed by the learned counsel for the petitioner to the effect that in view of pendency of a civil suit regarding the same subject-matter resort could not be had to criminal prosecution of the petitioner overlook the fact that FIR No, 602/2002 registered at Police Station Lower Mall, Lahore pertains only to the Power-of-Attorney executed on 26.2.1999 and registered on 11.3.1999 whereas the civil suit filed by the petitioner is only in respect of a Will and revocation thereof and not in respect of the above-mentioned. Power-of-Attorney. It this view of the matter the very premise of the arguments of the learned counsel for the petitioner in this respect appears to be misconceived and misplaced. Even otherwise .the case-law referred to by the learned counsel for the petitioner does not lay down a principle of universal application as in an appropriate case civil litigation . as well as criminal prosecution can proceed simultaneously or one after the other. A reference in this regard may be made to the cases of Syed Muhammad Ahmad u. The State [1972 SCMR 85], Muhammad Akbar v. The State etc. [PLD 1968 S.C. 281] and Akhtar. Hussain Zaidi v. The State PLD 1985 Lahore 662]. It may not be out of place to mention here that the dispute in this case is not about any title to any property but the recall issue is whether deception had actually been played by the petitioner and her co-accused or not regarding the contents of the Power-of-Attorney which was executed' and registered. Apart from that a civil wrong may become a criminal wrong where an element of dishonest intention or knowledge orceps into the matter. In this connection the provisions of Sections 35 and 24, PPC may be referred to with Advantage. It is in these circumstances that a civil breach of trust becomes a criminal breach of trust or a civil trespass is transformed into a criminal trespass. In the same vein it can conveniently be visualized that a transaction which is otherwise civil in nature may involve a criminal offence if a false document within the meanings of Sections 463 and 464, PPC is prepared after playing deception as alleged in FIR No, 602/2002. It may be added here that existence or otherwise of a document, interpretation of its contents or the rights or liabilities created by such a document may be a subject fit for a civil suit but forgery by preparation of a false document. I have no manner of doubt, is out and out a crime attracting the domain of criminal law and incidentally this is exactly what has been alleged in FIR No, 602/2002.
10.It may not be out of place to mention here that a number of documents have been produced before this Court during the hearing of this petition which prima facie tend to show that the conduct of the petitioner and her co-accused in the matter might not have been above board and, thus, an allegation of dishonest intention or knowledge could seriously be alleged in the whole transaction necessitating holding of a proper investigation of the offences in question. All such documents have been made a part of the record of this petition but I have, however, consciously refrained from referring to those documents in the present judgment and, also from commenting upon various parts thereof lest such observations may prejudice either the criminal investigation of the FIR in question or the civil suit which is already pending before a Civil Court.
11.It may be true that when the same matter is pending before a Civil Court as well as a Criminal Court there sometimes in an appropriate case proceedings before the Criminal Court are stayed while awaiting decision of the Civil Court in that matter. That stage. has surely not arrived in this case as the criminal matter in the present case is still at its investigation stage and it has yet to reach a Criminal Court. There is no law which requires stoppage of investigations& a criminal case on such a ground. As a matter of fact the intention of the law appears to be that investigation of a criminal offence should not ordinarily be stopped and the same should be concluded and finalized at the earliest possible. Such an approach is based upon public policy because due to stoppage of investigation the necessary inquiry maybe delayed, the witnesses may die or become unavailable, memories may fade, documents may disappear or lost or the relevant evidence may be tampered with or suborned. It is probably in this context that the provisions of Section 56(e) of the Specific Relief Act, 1877 mandate that no injunction can be granted against criminal investigation.
12.Apart from what has been observed above the petitioner appears to have sought through this petition partial quashing of the FIR in question to her extent as no other accused person has come forward to join her in the relief prayed. for herein. Advisability of such a partial quashing of an FIR is by itself quite suspect.
13. For what has been discussed above no occasion has been found by this Court for quashing FIR No, 602/2002 registered at Police Station Lower Mall, Lahore at such a stage."
According to the learned counsel for the petitioner the said judgment has not so far been challenged may further. The paragraphs of the said judgment reproduced above substantially take care of the remaining arguments advanced by the learned counsel for the petitioner in the present case and, therefore, the same may not detain me any further.
9. As already observed in the judgment referred to above, by virtue of the provisions of Sections 463 and 464, P.P.C. making of a false document to support a claim with intent to commit a fraud is an offence. The impugned F.I.R. expressly and specifically alleged cheating, forgery and use of a forged document by the petitioner and in the present case it cannot be urged with any degree of seriousness that the allegations levelled in the impugned F.I.R. do not disclose any offence at all.
Section 420; P.P.C. pertains to a cognizable offence and an F.I.R. could have straightaway been chalked out on the basis of receipt of an information relating to commission of such an offence.
Although offences under Sections 468, 471 and 474, P.P.C. are non-cognizable yet they could be investigated by the police in the present case alongwith the other offence under Section 420, P.P.C. which is cognizable. Even otherwise it is available on the record of investigation that permission for investigation in respect of even the above-mentioned non-cognizable offences had actually been obtained by the local police from the Area Magistrate on 5.7.2002.
10.For what has been discussed above I have felt satisfied and convinced that the allegations levelled against the petitioner by the complainant regarding commission of criminal offences by the petitioner are not only serious but the same may not be without prima facie substances and, therefore, the same need a thorough investigation by the local police. In view of this conclusion no occasion has been found by me for quashing the impugned F.I.R. and this writ petition is, thus, dismissed with no order as to costs.
11. Before parting with this judgment I may clarify that any observation made herein regarding the allegations levelled against the petitioner in the impugned F.I.R. shall always be treated as tentative in nature and the same shall not prejudice any Court, forum or authority in any manner.