' TAR1Q JAV AID, J.---This petition under section 561-A, Cr.P.C., has been filed for quashment of F.I.R.
No, 501 of 1999, registered at Police Station City, District Layyah on the ground that the offence against the petitioners is not made out as at the time of alleged offence the petitioners were not even born, therefore, they cannot be held liable for offence having been committed by predecessor-in-interest of the petitioners if at all it was committed.
2. As per contents as narrated in the F.I.R. Lot No, 2 situated in Chak No, 87/TDA Tehsil Karor, District Layyah was allotted to Allah Ditta son of Khair Din, Muhammad Bakhsh son of Noor Muhammad and Fazal Din through open auction, held by TDA Layyah in the year 1958. Due to financial compulsion, Allah Ditta etc., with permission of authority transferred the said land in favour of one Khairu Khan, who died on 10-10-1959 whereafter Muhammad Habib, Khan Muhammad and Muhammad Sharif Khan were declared as legal heirs of said Khairu Khan when, Muhammad Habib Khan son of Muhammad Sharif Khan due to old age factor and paucity of money sworn general attorney in favour of Abid Ali son of Ch. Aman Ali on 30-10-1997. The said general attorney was registered with the Revenue authorities and Lot No, 2 was mutated in favour of the legal heirs of Khairu Khan vide Mutation No,221, dated 16-6-1998. Thereafter one Muhammad Ali posing himself as son of Khairu Khan fraudulently prepared forged general power-ofattorney to grab the aforementioned land and sold it to Muhammad Bakhsh son of Khuda Bakhsh through an affidavit with the connivance of one Haji Sultan Muhammad, stamp vendor.
3. The learned counsel for the petitioners has vehemently argued that the impugned F.I.R. Is false; that the power-of-attorney in favour of Muhammad Ali son of Khairu Khan was a genuine document and on the basis of the power-of-attorney the land was transferred on 19-6-1961 at the Dastbardari deed in favour of Muhammad Bakhsh was executed in the year, 1961 and as such it cannot be said that the petitioners, who were not even born at that point in time had committed the offence. The learned counsel for the petitioners has heavily relied on various birth certificates, which show that the date of birth of the petitioners is subsequent to the date of alleged execution of documents. However, it is noticed that all of the entries in the birth certificates produced before this Court were made on 8-6-2009.
4. The learned counsel for the petitioners has relied on Mirai Khan v. Gul Ahmed and 3 others (2000 SCM R 122). In this case it was held that if the facts of the exercise of jurisdiction under section 561-A, Cr.P.C. Without waiting for trial Court to pass orders under section 249-A, Cr.P.C. Or under section 265-K, Cr.P.C. It was held that main consideration to be kept in view would be whether the continuance of the proceedings before the Trial Court was a futile exercise and wastage of time or riot. If on the basis of admitted facts no evidence can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial. Learned counsel for the petitioners also relied on Maqbool Rehman v. The State and others (2002 SCM R 1076). In this case the Hon'ble Supreme Court held that High Court was under a duty to ensure that the process of law was not allowed to be misused and if need be an appropriate order can be passed to prevent the mischief and advance the cause of justice. The proceedings amounted to sheer abuse of process of law the High Court had ample power to quash the proceedings.
5. On the other hand, learned counsel for the respondent No,2 assisted by the learned Law Officer has vehemently opposed the arguments advanced by the learned counsel for the petitioners,
6. I have heard the arguments advanced by the learned counsel for the parties and have gone through the record.
7. The judgments relied upon by the learned counsel for the petitioners are undoubtedly applicable in cases where there is misuse of process of Court and false proceedings have been initiated.
However, in the present case at this stage, it is not apparent whether, a false case has been registered against the petitioners or there is some substance in the allegation made by the complainant. Admittedly challan has already been submitted. The evidence relied upon by the prosecution has not been assailed in this petition. The question whether the petitioners have been found innocent or guilty by the investigation has also not been raised before this Court. It is not shown that the prosecution had failed to bring on record any evidence against the petitioneRs, As such the above-said judgments are of no avail to the learned counsel for the petitioners in the peculiar circumstances of this case.
8. It is nowhere alleged in the F.I.R. That the offence had been committed in 1961 or 1959, however, it is clear from the F.I.R. That alleged offence has been committed some time thereafter. However, it must have been before 1998 when the Mutation No,221, dated 16-6-1998 was passed in favour of Muhammad Habib Khan and Muhammad Sharif Khan. A perusal of the F.I.R. Shows that numerous questions of fact have been raised in the F.I.R. Which cannot be gone into by this Court in A quashment proceedings. The petitioner may agitate the same before the learned trial Court, who shall look into the evidence available on record and if need be record the evidence of the prosecution and then determine the case strictly in accordance with law. This petition is dismissed.