' I intend to dispose of Writ Petitions Nos.12261 and 12645 of 2000 through this single judgment as common questions of law and facts are involved.
2. Through Writ Petition No,12261 of 2000 the petitioner has called in question the order dated 22-11- 2000 passed by respondent No,1 Arshad Mehmood Magistrate 1st Class Kabirwala wherein the learned Magistrate after holding an enquiry into the matter has referred the case to the S.H.O. For further legal proceedings. This petition was admitted for regular hearing on 24-11-2000 and in the meanwhile the operation of the impugned order was suspended. Subsequently another C.M.
No,2958 of 2000 was filed in the same writ petition for recalling the interim injunctive order passed by this Court. Both the matters would be disposed of by a single order.
3. Through Writ Petition No,12645 of 2000 the petitioner seeks quashment of F.I.R. No,306 of 2000 dated 23-11-2000 under section 467/468/420/471, 419/193, P.P.C., Police Station, City, Kabirwala.
4. Brief facts giving rise to this petition are that an application was filed on 24-10-2000 by respondent No,2, Khushi Muhammad son of Abdul Ghani before the respondent No,1, Magistrate 1st Class Kabirwala stating therein that his brother Younas had died. He had his agricultural land in Mauza Jams Abad out of which 31 K-16 M has been cultivating by Abdul Rauf, Rashid Ahmad, Muhammad Rafique son of Najabat whereas the remaining land had been cultivating by Zulfiqar Ali on lease. On 1-7-1994 Zulfiqar Ali lessee prepared an agreement to sell for consideration of Rs,1,00,000 on plain paper regarding the land measuring 74 Kanals, 15 Marlas. Out of 1,00,000 Rs,85,000 was shown to be paid and the remaining amount of Rs,15,000 was to be paid later on.
Subsequently said Zulfiqar Ali filed a suit for specific performance on 10-7-1997 mentioning therein a wrong address of the defendants and got the case decreed vide judgment-dated 5-11-1998. On coming to know of this fraud Khushi Muhammad respondent No,2 filed an application under section 12(2), P.P.C. For setting aside the said ex parte decree. Lastly the applicant-petitioner submits that as Zulfiqar has committed fraud case may be registered against him. Accordingly on the said application after enquiry and hearing of both the parties learned Magistrate has passed the impugned order holding that the agreement to sell was a forged document and directed the police to proceed further in accordance with law. The order dated 22-11-2000 has been challenged through the instant petition.
5. Learned counsel appearing on behalf of the petitioner contends that initiation of criminal proceedings during the pendency of the civil litigation are illegal. One pefson cannot be vexed twice in two separate proceedings on the same cause of action. Further submits that the civil proceedings are prior in time and criminal Court cannot take cognizance of the same. Lastly submits that the application under section 12(2), C.P.C. Is pending. It is within the jurisdiction of the civil Court to decide whether agreement dated 1-7-1994 is genuine document or forged one. Lastly submits that learned Magistrate has no jurisdiction to pass the same in presence of pendency of civil litigation with regard to the same document.
6. Learned counsel appearing on behalf of the respondent Khushi Muhammad submits that the petitioner has not approached this Court with clean hands as he has suppressed the material facts from this Court. Further submits that criminal case vide F.I.R. No,306 dated 23-11-2000 stand registered against the petitioner under sections 467/468/420/471/193, P.P.C. At Police Station Kabirwala whereas by filing the instant petition the petitioner has obtained an interim relief vide order dated 24-11-2000 whereby the investigation of the said case has been stopped by the local police. Further submits that the provisions of section 195, Cr.P.C. Not applicable in this matter. That writ petitioner had obtained a fraudulent decree against the defendants who were already dead.
Lastly submits that the learned Magistrate had rightly issued a direction to the S.H.O. Of Police Station, City Kabirwala to register a case against the culprits in the light of the law laid down by the full Bench of this Honourable Court reported in PLD 1992 Lah. 178 and in pursuance of the said order a case has already been registered against the petitioner and his co-accused. Therefore, as the impugned order stand complied with this petition has become infructuous.
7. I have heard the learned counsel for the parties and also perused the record carefully. Perusal of the record reveals that the petitioner filed a suit for specific performance of an agreement against respondents Yousaf and Rashid sons of Qutab Din, Mst. Siddiquan widow of Qutab Din and Mst.
Anwari daughter of Qutab Din on 10-7-1997 regarding the property measuring 74 Kanals, 15 Marlas situated in Tehsil Kabirwala on the basis of agreement to sell dated 1-7-1994. Plaintiff's case was that he had entered into an agreement to sell with the defendants of the land in dispute for a consideration of Rs,1,00,000 and out of said amount he had paid Rs,85,000 and the remaining amount of Rs,15,000 was to be paid at the time of registration of sale-deed i.e, on 1-7-1997. The defendants were proceeded ex parte whereas plaintiff had tendered ex parte evidence i.e, written agreement supported by the P.W.1 Muhammad Ibrahim and Muhammad Rafique P.W.2, Zulfiqar Ali P.W.3 and Muhammad Ibrahim P.W.4. As the said evidence remains unrebutted learned civil Court decreed the suit ex parte with costs on 5-11-1998. An application under section 12(2), C.P.C. Was filed by Khushi Muhammad respondent No,2 and legal heirs of Muhammad Younas and Mst.
Anwari deceased on 26-7-1999 on the ground that out of the defendants in the said civil suit Mst.
Anwari had died on 20-9-1998 whereas other defendants had died during the partition in 1947 and that Mst. Anwari was residing at Mauza Kohiwala Tehsil Kabirwala whereas in the civil suit her address was given as Kasi Chak No,17, Tehsil and District Multan thereby the petitioner had prepared forged document on behalf of the dead persons and thereafter giving a wrong address of only Mst. Anwari had obtained an ex parte decree. The applicant had filed an application under section 12(2), C.P.C. Being only surviving legal heirs of the defendants that application is still pending adjudication before the Civil Judge Kabirwala. Thereafter on 24-10-2000 one of the legal heirs of the defendants in the civil suit i.e, respondent No,2 in the writ petition filed an application for registration of case against the petitioner, and his co-accused who have forged the agreement to sell and had obtained ex parte decree in their favour. This application was filed before the learned Magistrate Kabirwala. The present petitioner filed reply to the said application denying the contents thereof. Learned Magistrate after hearing both the parties and perusing the record had decided that petitioner and his co-accused had forged a fake agreement to sell dated 1-7-1994 on behalf of Muhammad Yousaf etc. The real owner of the land in dispute and on the basis of this agreement to sell the petitioner and his co-accused had obtained ex parte decree from the civil Court. In view of these findings learned Magistrate had forwarded the file to the S.H.O. City, Kabirwala to initiate the proceedings in accordance with law vide impugned order dated 22-11-2000 learned counsel for the petitioner submits that the learned Magistrate had no authority to direct the S.H.O. To register the case. In this behalf it may be observed that section 190 provides that any District Magistrate or Sub-Divisional Magistrate or any other Magistrate specially empowered in this behalf may take cognizance of any offence:-- "(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
' Relevant portion of section 195, Cr.P.C. Is as follows:-- "No Court shall take cognizance of any offence described in section 436 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."
8. It may be observed that section 190 is of general nature whereas section 195(1)(c) is an exception that where only a person who is a party to a suit commits an offence with regard to a document produced in the same Court in that eventuality criminal Court only takes the cognizance on the complaint of that Court where the document is used. According to section 195(1)(c) superior Courts majority view is that if the document is forged prior to the institution of a suit where the said document is used, section 195(1)(c) is not applicable. Therefore, the impugned order passed by the learned Magistrate after due scrutiny of the facts is in accordance with law. He has only forwarded the file to the S.H.O. To act in accordance with law. Now it is for the S.H.O. Concerned to proceed with the matter strictly adhering to well establish principles of law. Accordingly, in view of the findings of the learned Magistrate and the direction contained in the impugned order the S.H.O.
Police Station, Kabirwala had registered the case vide F.I.R. No,306 of 2000 under sections 467/468/471/420/ 193, P.P.C. On the application of the complainant Khushi Muhammad.
9. In view of what has been discussed above I am of the considered view that section 195(1)(c) is not applicable in this case as the forged document was prepared earlier than the institution of case wherein the same was used and proceedings taken by the learned Magistrate vide impugned order are neither arbitrary nor perverse. Therefore, impugned order is maintained being in accordance with law. The impugned F.I.R. Has been lodged by the complainant Khushi Muhammad respondent No,2, which is pending investigation. Accordingly Writ Petition No,12261 of 2000 along with C.M. 2958 of 2000 and Writ Petition No,12645 of 2000 stand dismissed. The Investigating Officer concerned is at liberty to continue with the proceedings and act strictly in accordance with law.