' KHALID ALI Z. QAZI, J.-- C.M.A. No,200 of 1998. This is an application under section 476, Cr.P.C. Filed on 10-1-1998 by the plaintiff to invite this Court to take cognizance of the offence committed by the defendant No,1 and his witnesses Nos. 2, 3, 4, 5 and 6 for their prosecution under sections 181, 191, 192, 193, 196, 463, 468 and 471, P.P.C. On the allegations that the defendant No,1 has forged the power of attorney and the witnesses to the documents are also involved in the forgery of said documents and all witnesses gave perjured evidence.
2. Brief facts of the case requisite for disposal of this application are that the plaintiff is real elder brother of defendant No,1 and defendant No,2 is wife of defendant No,l. The plaintiff filed suit on 4- 9-1993 against the defendants for declaration, cancellation and permanent injunction in respect of his House No,1-0, 11/17, Nizamabad, Karachi on the ground that the defendant No,1 forged a power of attorney purported to be executed by the plaintiff and on the strength of this power of attorney, the defendant No,1 gifted the said property of the plaintiff to his wife, the defendant No,2. The family of the plaintiff was resident of Jhudo Sindh. The plaintiff purchased the House on 7-8-1976. He came to Karachi and started business of milk selling. After establishing himself, the plaintiff brought his family to Karachi and shifted to the above said house along with defendant No,1 and lived as joint family. In the month of June, 1993, the plaintiff realized that the sale-deed and other documents of the house were missing. Thereafter he came to know about the forgery and fraud committed by the defendant No,l.
3. The defendants Nos.1 and 2 filed their written statement jointly alleging therein that the plaintiff had obtained loan from bank and being unable to repay to bank he agreed to sell the house in the end of 1986 to the defendant No,1 which the defendant No,1 was agreed to purchase for a total sale consideration of Rs,3,50,000. This transaction, according to defendants Nos.1 and 2 took place in presence of family members a sum of Rs,1,00,000 was paid to the plaintiff to repay the bank loan.
No receipt or agreement was executed. The General Power of Attorney in favour of defendant No,1 was executed by the plaintiff on 11-1-1987. It was further stated that the sum of Rs,2,50,000 was paid in two instalments of Rs,1,30,000 and Rs,1,20,000. No receipt was given in acknowledgment. The plaintiff having received the total sale consideration handed over the original documents to the defendant No,1. It was further alleged in the written statement that after receiving full payment of sale consideration and receiving the original title documents, the defendant No,1 for his love and affection towards his wife the defendant No,2, executed the gift deed on 7-9-1991. It was further alleged that after giving notice in the newspaper, the said house was mutated in KDA record in the name of defendant No,2 by defendant No,3 KDA.
4. During the pendency of this application, the main suit has been decided by this Court on 5-5- 1999 in favour of the plaintiff and it was held that the defendant No,1 and his witnesses are liable to be prosecuted for purjery and forgery under section 476, Cr.P.C. But no order had been passed under section 476, Cr.P.C.
5. This Court has also passed the decree on 5-5-1999 as prayed by the plaintiff as under:---
(i) It is hereby declared that the alleged power of attorney is forged by defendant No,l.
(ii) It is hereby ordered that gift deed executed on 7-9-1991 in favour of defendant No,2 is cancelled and of no legal effect.
(iii) It is hereby ordered that the forged power of attorney on, the strength of which the gift deed has been executed is cancelled.
(iv) It is hereby declared that the plaintiff is the lawful owner of house bearing No,1-G; 11/17, Nazimabad, Karachi.
(v) That the defendant No,1 and or anybody else are hereby restrained to alienate the property or deal with it in any manner.
' It is pertinent to point out that no appeal has been filed against the judgment and decree passed by this Court and they attain finality.
6. That inspite of the judgment and decree, dated 5-5-1999 the defendant No,1 and the witnesses in their counter affidavits insisted that the said power of attorney was not forged. It was pleaded by the defendants that every forgery is not criminal. It may be intentional without being dishonest or it may be appeared to be dishonest without being really so. In such cases, the Court should be slow to move and this contention is all the more necessary because there is tendency to secure speedy result by having recourses to criminal law.
7. I have heard the learned advocates for the parties to some length and perused the entire record, their written arguments, relevant law and case law cited at bar.
8. In support of the application Mr. Mubarak Ahmed learned advocate for plaintiff/applicant has forcefully relied upon the following cases:---
(i) 1992 MLD 1827, (ii) PLD 1992 Lah. 178, (iii) 1994 SCMR 1103, (iv) PLD 1991 Lah. 8, (v) PLD 1989 Lah. 449 and (vi) 1997 MLD 2097.
9. To controvert the arguments advanced by Mr. Mubarak Ahmed learned advocate for plaintiff, Mr. Muhammad Ashraf Qazi learned advocate for the defendants in support of his contentions has cited the following rulings.
(i) 2006 MLD 1059, (ii) PLD 1965 Kar. 622, (iii) PLD 1992 Lah. 178,
(iv) 1992 MLD 1827, (v) 1991 PCr.LJ 1337 and (vi) 1991 MLD 1759
10. I am fully in agreement with the law laid down in above cases by Honourable Courts but they are distinguishable and cannot assist and support them as the facts of present case are different from cases as cited at bar.
11. In the normal course the learned Judge, who had decided the case should have taken cognizance of the offence committed by the defendant No,1 and his witnesses by committing forgery and purjery in preparation of false and forged power of attorney and using the same in Court proceedings in order to deceive the Court but since it has not been done at the appropriate time by the trial Court. I, therefore, refrain to take cognizance of the matter at this belated stage.
However it seems that criminal offence has been committed and sparing the criminal at this stage will encourage others to enter into such type of criminal activities. 1 am of the view that the trial courts should take strict actions against wrongdoers once they detect the same. I therefore, direct the plaintiff to lodge the F.I.R. At concerned police station within whose jurisdiction the suit property is situated. The S.H.O. Of the area police station is directed to register the case, investigate the matter and submit charge sheet in the Court having jurisdiction to try the case in accordance with law. C.M.A. No,2495/2001. Listed application is also disposed of in above terms.