ORDER petitioners through this petition seek quashment of F.I.R. No.1117 dated 22-10-2004 under sections 420/ 468/471, P.P.C. Registered at Police Station, North Cana., Lahore on the report of Col. (Retd.)
Shah Sadiq, respondent No .3 .
2. According to the prosecution allegations set up in the F.I.R. The petitioners had submitted documents for registration of Sale-deed Nos.6217 pertaining to 16 Kanals, 12 Marlas, Sale-deed No.6218 pertaining to 40 Kanals and Sale-deed No.6219 also pertaining to 40 Kanals, all dated 23-7- 2004 in respect of pieces of land situated in village Chak Deer Tehsil Cantt., District Lahore on the basis of Fard Malkeet Jama Bandi relating to the said land which had not been issued or signed by the Patwari Halqa Deer and as such the same had been forged and that the land intended to be sold out through the said sale-deeds is under litigation in a civil Court.
3. It is pleaded on behalf of the petitioners that they are owners of land measuring 476 Kanals 8 Marlas bearing Khewat No.41, Khatoni No.148 comprising of Khasras Nos.118/990, 119, 131 to 140, 142 to 152 and 158 to 200 within the revenue limits of Chak Deer Teshil Cantt., District, Lahore which had been purchased from Muhammad Ajaib Khan and Muhammad Arif Khan through Mutation No.206 dated 8-6-1972 sanctioned by the Collector, Lahore and that since then the petitioners are in cultivating possession of the said land and that petitioners Nos.1 and 2 had sold 96 Kanals, 12 Marlas of land to Defence Housing Authority through petitioner No.3 (investor) and the said Authority had agreed to give them files equivalent to 24 Kanals iii Phase-III and that the land in dispute was originally owned by one Shah Mansoor Hussain uncle of the present complainant who had executed a general power of attorney in favour of his brother Nasir Hussain Shah, father of the present complainant, who had originally sold the land to one Abdul Ghafoor son of Abdul Ghani in the year 1965 through registered sale-deed dated 26-1-1965 and that Abdul Ghafoor subsequently sold the land to Muhammad Arif Khan and Muhammad Ajaib Khan through registered sale-deed on_31-5-1969 and that petitioners Nos.1 and 2 had purchased the said land from Muhammad Ajaib Khan and Muhammad Arif through Mutation No.206 which was sanctioned in their favour on 8-6- 1972 and that since then they are continuing in possession of the land as owners and that Shah Mansoor Hussain, uncle of the complainant, who was original owner of the land filed a civil suit in 2003 after about 40 years of the sale in favour of Abdul Ghafoor claiming that the general power of attorney allegedly executed by him in favour of his brother had been forged and fabricated by his said brother and therefore, the sale by his said brother in favour of Abdul Ghafoor and all subsequent transactions were of no consequence and that the said civil suit was dismissed as withdrawn on 21-1-2004 and that during the pendency of the said suit Shah Mansoor Hussain filed another suit of identical nature in another Court without disclosing the pendency of the earlier suit and also obtained status quo order from the said Court which was, however, vacated by the learned Additional District, Judge vide order dated 12-11-2004 and that the application under Order VII, rule 11 of the C.P.C. Seeking rejection of the plaint is pending before the Civil Court and that the petitioners are bona fide legal owners of the said land and are entitled to sell the same and that Shah Mansoor the original owner has now set up his nephew i.e. The present complainant of this F.I.R. To harass the petitioners and to force them to submit to their illegal demands and that initially an application was given to the Sub-Registrar for registration of the case and an ex parte fictitious report was obtained in connivance with the Revenue Staff on the basis of which the Sub-Registrar directed registration of the case and subsequently the petitioners appeared before the, Sub- Registrar and apprised him of the true facts that the application of the complainant itself was based on forged documents in collusion with the Revenue Staff upon which the earlier ex parte order for registration of the F.I.R. Against the petitioners was suspended and fresh inquiry was ordered and that the complainant because of his position has manipulated the registration of this case in an illegal manner. It has also been argued that the petitioners had no nexus with the original sale made in the year 1965 through special attorney of Shah Mansoor who happened to be father of the present complainant/respondent No.3 and that there is no allegation that the petitioners had in any manner offered dishonest inducement to the complainant or Shah Mansoor and in consequence of the same had obtained any valuable property or right and the ingredients of section 420, P.P.C. Have not even been alleged in the F.I.R. And that the entire prosecution allegation is that the petitioners had submitted forged Farad Malkeet which is not true as the petitioners are continuing to be owners in possession of the land since 1972 and even if for the sake of arguments the prosecution allegation is accepted then at the most offence under section 468, P.P.C. Is made out which is non-cognizable and thus F.I.R. Could not be registered and investigated and that the petitioners cannot forge Fard Malkeet regarding the land of which they themselves are the valid legal owners.
4.. It has been argued on behalf of the complainant that the civil litigation regarding the disputed land is pending against the petitioners and that the brother of Shah Mansoor, had forged the special power of attorney in his favour and had illegally sold the land belonging to Shah Mansoor, uncle of the complainant, and the petitioners through a forged Farad Malkeet presented the sale- deed for registration which prima facie makes out the offence under sections 420 and 468, P.P.C.
Against them and as section 420, P.P.C. Is cognizable offence, therefore, this case could be registered and the offence of section 468, P.P.C. Which is non-cognizable could also be legally added in the F.I.R.
5. I have heard both the parties at length and gone through the record. It is admitted position on the file that property i.e. Land measuring 476 Kanals; 8 Marlas situated in Mauza Chak Deer was owned by Shah Mansoor Hussain. His brother Shah Nasir Hussain, as general attorney of Shah Mansoor appointed through registered deed had sold the same in favour of Abdul Ghafoor son of Abdul Ghani through registered sale-deed dated 26-1-1965, copies of the sale-deed and corresponding mutations are annexures-E and E/1. The said Abdul Ghafoor continued in possession of the disputed land for almost four years and thereafter he sold this land to Muhammad Arif and Ajaib Khan through registered sale-deed on 31-5-1969 and corresponding mutation was also sanctioned in the Revenue Record and they were put into possession of the disputed land. Copies of the sale-deed and mutation in favour of the said Muhammad Arif and Muhammad Ajaib Khan are annexures-F and F/1. They continued to be in ownership and possession of the land for almost three years and thereafter vide Mutation No.206 dated 8-6-1972 (copy annexure-F/2) petitioners Nos.1 and 2 purchased the disputed land from them and obtained its possession and for almost 32 years they continued to be owners in possession of the disputed land and ultimately vide registered Sale-deeds Nos.6217, 6218 and 6219 dated 23-7-2004 they sold 96 Kanals, 12 Marlas of land to Defence Housing Authority through petitioner No.3 and the said Authority had agreed to give them 24 kanals equivalent to the said land. The sale-deed was registered with the Sub- Registrar. Shah Mansoor Hussain whose land had been sold by his brother Shah Nasir Hussain on the basis of a registered power of attorney as far back as in the year 1965, filed a civil suit in 2003 after about 40 years of the first sale in favour of Abdul Ghafoor claiming that his real brother Shah Nasir Hussain, father of respondent No.3, had forged and fabricated general power of attorney and as such the sale of the land made in favour of Abdul Ghafoor was of no legal consequence and consequently all the subsequent transactions were also without legal authority. The said civil suit was dismissed as withdrawn on 21-1-2004, copy of the civil suit and the order of dismissal are Annexures G and G/1. Shah Mansoor Hussain during pendency of the first suit also filed another suit of identical nature in another Court and obtained status quo order in respect of the same land from the Civil Court and the same was vacated by the learned Additional District, Judge, Lahore.
However, an application under Order VII, rule 11; C.P.C. Seeking rejection of the suit is pending before the learned Civil Court. Copy of the second civil suit, application under Order VII, rule 11, C.P.C. And order for vacation of stay are Annexures-H, I and J.
6. Upon registration of the sale-deeds in favour of Defence Housing Authority the present complainant moved an application before the Sub-Registrar, Lahore Cantt. Seeking registration of a criminal case in respect of the above sale-deed made by petitioners Nos.1 and 2 through petitioner No.3 in favour of Defence Housing Authority on the ground that they had produced fake revenue documents before the Sub-Registrar and on the said application an ex parte inquiry was made and the Sub-Registrar ordered for registration of a case against the petitioners. Copy of the ex parte inquiry report is annexure-K. Thereafter the petitioners appeared before the Sub-Registrar and submitted an application (copy Annexure-L) bringing the facts to his knowledge and pleaded that the complainant had obtained the ex parte order for registration of case through misrepresentation and that in the Revenue Record they had for 32 years been shown/treated as lawful owners in possession and there was no need for them to forge Farad Malkeet and that the alleged forged Farad Malkeet had been placed on the record by the complainant himself in collusion with the Revenue Staff in order to have the case registered against the petitioners to force them to submit to their illegal demands and consequently vide order copy (Annex-M) the earlier order dated 11-10-2004 directing registration of case against the petitioners was suspended and the fresh inquiry had been ordered. Thus the only allegation against the petitioners is that they had submitted copy of a Farad Malkeet which had not been signed and issued by the Patwari Halqa for securing registration of sale-deeds in favour of the Defence Housing Authority. The factum as to who had placed the said Farad Malkeet on the file is still under inquiry try virtue of order dated 2-2- 2005 (Annexure-M). The petitioners were recorded as owners in possession of the disputed land by virtue of Mutation No.206 dated 8-6-1972 and since then they are continuing to be owners in possession of the same and as owners in possession recorded in the Revenue Record it is not probable that they would forge a Farad Malkeet of the land which they themselves own.
7. It is borne out from the contents of the F.I.R. Itself that the petitioners had no nexus with the original sale made in the year 1965 through Nasir Hussain Shah general attorney of Shah Mansoor Hussain who happened to be father of the complainant. The petitioners did not in any Manner offer any kind of dishonest inducement either to the complainant or to Shah Mansoor Hussain to deliver any property to any person or to make, alter or destroy the whole or any part of the valuable security or any document capable of being converted into any valuable security. Therefore, application of section 420, P.P.C. Is not at all attracted to the facts of this case. The other offences alleged in the F.I.R. Fall under sections 468 and 471, P.P.C. Which are non-cognizable.
8. The information regarding commission of a cognizable offence is regulated by section 154, Cr.P.C. Whereas the information regarding commission of non-cognizable offence is regulated by section 155, Cr.P.C. Both these sections are reproduced below for ready reference:-- "154. Information in cognizable cases:---Every information relating to the commission of a cognizable offence if given orally to an officer in-charge of a police station, shall be reduced to writing by him or under his direction and be read over to the informant, and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such from as the Provincial Government may prescribe in this behalf.
155. Information in non-cognizable cases:---
(1) When information is given to an officer in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter in the book to be kept as aforesaid the substance of such information and refer the informant to the Magistrate.
(2) Investigation in non-cognizable cases.---No police officer 'shall investigate a non-cognizable case without the order of Magistrate of the first or second class having power to try such case or send the same for trial to the Court of Session.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in-charge of a police station may exercise in a cognizable case.
Comparative reading of sections 154 and 155, Cr.P.C. Shows that under section 154, Cr.P.C. a statutory duty has been cast upon the officer in-charge of a police station to enter the rinformation regarding commission of any cognizable offence in a register the form of which is prescribed by the Provincial Government which is known as F.I.R. Parlance. As regards recording of information of commission of a non-cognizable offence another book is prescribed which is known as "Roznamcha" or Station Diary in which information relating to commission of non-cognizable offence is recorded and generally the police does not initiate any action and the complainant or informant after being given a copy of the report so entered is sent away. However, if the S.H.O.
Deems fit to initiate the investigation then under subsection (2) of section 155 the police officer has to obtain order from the Magistrate and if any arrest is to be effected then it can only be made after obtaining warrant of arrest from the Magistrate under section 155(3), Cr.P.C. Section 156(1), Cr.P.C. Empowers an officer in-charge of a police station to investigate any cognizable offence without any order of a Magistrate.
9. As the information given to the police in the present case only prima facie revealed commission of non-cognizable offences, therefore, the F.I.R. In this case under section 154, Cr.P.C. Could not have been registered straightaway and the legal course available was to make a report regarding commission of a non-cognizable offences of sections 468 and 471, P.P.C. Under section 155(1), Cr.P.C. And then to seek the permission of the learned Illaqa Magistrate for conduct of the investigation under section 155(2), Cr.P.C. And if the arrest of the accused is to be effected then warrant of his arrest are to be obtained by the Magistrate as stipulated under section 155(3), Cr.P.C.
As the said procedure has not been followed, in this case, therefore, the manner in which the F.I.R.
In-question has been recorded and proceeded is not legally tenable.
10. The complainant party remained out of the possession of the disputed land since the first sale made in the year 1965 in favour of Abdul Ghafoor and the disputed property had been sold from one hand to another and ultimately the petitioners were the third purchasers. The complainant party all along slept over their claims to the disputed property and challenged the first sale made in 1965 after about 40 years. This lapse on the part of the complainant party prima facie has no explanation and it appears that as the disputed land falls within the residential scheme of D.H.A.
And it has become immensely valuable with the passage of time, the complainant party is employing every means to exert pressure on the petitioners to share with them the increased value of the land which originally belonged to them and the registration of this case by the complainant party against the petitioners is manifestation of their said desire.
11. In view of the discussions made above, it is held that application of section 420, P.P.C. Is not at all attracted to the facts of this case. The factum as to how the alleged forged Farad Malkeet was placed on the file of Sub-Registrar Lahore Cana. Is still under probe and prima facie the petitioners having been shown as owners in possession in the Revenue Record for the last 32 years and continuing as such. It will not be probable that they would produce before Sub-Registrar Lahore Cantt. Alleged forged Farad Malkeet in respect of the land which is owned and possessed by them for securing registration of the sale-deeds. Therefore, even commission of offences under sections 468 and 471, P.P.C. Have not been made out against the petitioners. Thus there is no legal premises for registration of the present case against the petitioners and as such the impugned F.I.R. Is quashed.