MEHMOOD MAQBOOL JBAJWA, J. - Seeks quashment of F.I.R. No. 203 of 2010 registered under Sections 420, 468, 471 of the Pakistan Penal Code, 1860 at Police Station Race Course, Lahore.
2. Heard.
The learned counsel for the petitioner maintained that the petitioner purchased super structure raised over the land owned by the Lahore Development Authority from Ghulam Fatima, wife of Abdul Ghafoor claiming himself to be the owner of the said superstructure in the year 1986 when Abdul Ghafoor complainant of the case was in Saudi Arabia, who after coming back sold the same in favour of the present complainant i.e. Noor Muhammad. Submitted that the said Noor Muhammad got a case registered against the petitioner and others with the allegation that the petitioner as well as co-accused prepared forged and fabricated document on the strength of which proprietary and possessory rights were claimed. Maintained that in view of the contents of F.I.R, the complainant could not get the case registered and at the most after conclusion of case pending in the Civil Court instituted at the instance of the petitioner for specific performance, the said Court could have issued direction to proceed under Section 195(c)(1) of the Code of Criminal Procedure, 1898. . Submitted that in view of the allegation contained in the F.I.R., registration of case at the instance of the complainant against the petitioner as well as co-accused is clothed with malice in fact and as such is liable to be quashed.
On the other hand, learned counsel for the complainant maintained that challan has been submitted in the Court of competent jurisdiction and application under Section 249-A of the Code of Criminal Procedure, 1898 has been made at the instance of the petitioner which is pending adjudication and as such the appropriate remedy is being exhausted at the instance of the petitioner. Repelling the arguments with reference to the attraction of provision of Section 195(1)(c) of the Code of Criminal Procedure, 1898, it was maintained and mis-interpreted at the instance of the petitioner. Submitted that Ghulam Fatima who has been stated to be wife of Abdul Ghafoor in fact is non-existing personality and fraud was committed at the instance of the petitioner as well as co-accused claiming possessory rights in respect of the property owned by Abdul Ghafoor, though Ghulam Fatima was never legally wedded wife of said Abdul Ghafoor.
3. Arguments canvassed at the instance of the petitioner regarding attraction of provision of Section 195(1 )(c) of the Code of Criminal Procedure, 1898 cannot advance plea of the petitioner prima facie in view of the contents of F.I.R., which, undeniably are mis-interpreted at the instance of the petitioner. Perusal of the later part of F.I.R, suggests that according to the complainant the factum of fraud and forgery came to his knowledge when Muhammad Iqbal Dar (co-accused) appeared in Civil Court as witness in the suit for possession through specific performance making disclosure regarding certain documents which are forged and fabricated. It is not the case of the complainant that the documents referred to were forged and fabricated during the course of proceedings before the Civil Court but it has been maintained that factum of fraud and forgery came to the knowledge of the complainant on appearance of Muhammad Iqbal as a witness.
There is no finding of Court regarding forgery of any document produced or given in the Court, In view of the matter, the argument canvassed at the instance of the petitioner though with vehemence questioning the legality of the crime report cannot advance plea of the petitioner.
4. Respective contentions of the adversaries regarding alienation of superstructure by Ghulam Fatima being wife of Abdul Ghafoor, whose status has been controverted at the instance of the complainant and allegation of forgery and fraud on the part of the petitioner and co-accused being a question of fact, undeniably, can be decided by the learned Trial Court after recording evidence and perusal of the documents providing opportunity to adversaries to cross-examine the witnesses of each other.
5. There is little cavil with the well-expounded proposition of law that factual controversy cannot be resolved by this Court while exercising Constitutional jurisdiction of this Court as held in Col. Shah Sadiq v. Muhammad Ashiq and others (2006 SCM R 276) and Rafique Bibi v. Muhammad Sharif and others (2006 SCM R 512). Admittedly the petitioner has made an application under Section 249-A of the Code of Criminal Procedure, 1898 seeking acquittal before the learned Trial Court which is yet to be decided. Even otherwise, it has been brought to the notice of the Court that on the application made at the instance of the petitioner investigation has been transferred and as such ample opportunity is available to the petitioner for redressal of his grievance by producing material before Investigating Officer.
6. Viewed from whichever angle the petition is not maintainable and as such same is hereby dismissed.