1. {{PAGE 159 IS MISSING}} [Allegations levelled in impugned F.I.R, were aItogether different from those in other mentioned F.I.R, against petitioner. 1h the absence of Challan, it was not possible to ascertain that it was same Offence. High Court dismissed writ petition seeking quashed of impugned F.I.R.].For the Petitioner: Raja Rizwen Abbasi, Advocate.For the Respondent: Sardar Abdur Razzaq Khan, Advocate and Malik Fakhar AM Awan, Advocate for respondents.Date of hearing: 25th April, 2012.ORDERNOOR-UL-HAQ N. QURESHI, J. - Through the present writ petition, the petitioners have prayed for quashment of F.I.R. No. 398, dated 07.10.2011, under Sections 420, 468, 471, . P.P.C, registered at P.S. Koral, Islamabad.2. The petitioners, being accused cited in the said F.I.R., have concentrated to seek relief on the grounds or another F.I.R, registered on the same subject bearing F.I.R. No. 524, dated 21.10.2011 under Sections 420, 468, 471 & 409, P.P.C., in which Patwari of Helqa and petitioner No. 1 have been cited as accused. Allegedly, both the F.I.Rs. Were got registered on the basis of same stamp paper bearing No. 1241, dated 17.01.2006, when contrary to the requirement of law that two F.I.Rs., on the same subject, cannot be lodged, hence same being violative of Article 13 of Constitution. Besides other grounds, the petitioners haye taken the ground of pendency of civil suit preferred by petitioner No. 1, as one of the very important ground. Same is based upon enunciation of legal principle that civil and criminal20I3 Muhammad Yaseen V. S.S.P. Islamabad Cr.C. 161(Noor-ul-Haq N. Qureshi, J.)proceedings cannot be continued on the same subject, as same being abuse of process of law, requires to be quashed, it is also pointed out that F.I.R. No. 524 contains scheduled offences as provided in Criminal Law Amendment Act of 1958, as Patwari has also been cited as co-accused. Therefore, both the offences are covered in the said F.I.R, hence, petitioners are interested towards quashment of F.I.R, bearing No. 398/2011 P.S. Koral registered earlier to F.I.R. No. 524, PS Shahzad Town, Islamabad.2. It is necessary to mention here the text of both the F.I.Rs. To ascertain the real allegations levelled by the complainant. I would like to state facts narrated in F.I.R. No. 398, P.S. Koral, Islamabad first, which are reproduced hereunder:-"F.I.R, lodged on 17.10.2011 does not disclose the date and time of incident, section applied therein are 420, 468 and 471, P.P.C. Malik Babar AH moved an application, which was resulted into F.I.R containing allegation that he is resident of All Pur, Tehsil & District, Islamabad. He received information through Azhar Hussain Khokhar that petitioner No. 1 is claiming ownership of land belonging to respondent No. 5 measuring 33-kanals, 06-marlas situated in Khasra No. 827. On contact, petitioner No. 1 showed a fake stamp paper, neither was attested by Notaty Public nor issued by any stamp vendor. Also, it is alleged that same stamp paper contained forged signature of father of respondent No. 5. It is alleged that on inquiry from relatives and companions of his father by respondent No. 5, they exhibited their ignorance about execution of the sale agreement. The application under Section 22-A/B was moved, when Hon 'bie Court ordered for registration of F. I.
2. R.The F.I.R. Bearing F.I.R. No. 524 lodged at P.S. Shahzad Town, Islamabad on 21.10.2011, not showing the date and time of incident applying sameSection of P.P.C, i.e. 420, 468, 471, subsequently. Section 409 was applied, which wa$ lodged by the same complainant i.e. Babar Ali in which, it is infer alia alleged that complainant is resident of Alipur Village and he acquired knowledge through Malik Naseer Ahmed & Malik Aftab Ahmed that yesterday on 07.10.2011, ex-Halqa Patwari Amanullah Khan before his transfer took away, register Khasra Gardawari & Roznamcha from Munshi and with connivance of Muhammad Yaseen son of Punno Khan, Malik Wajid son of Amin, Changaiz Akhtar, Nasir Iqbal, exceeding his powers, kept a false entry in the record showing possession, which is a penal offence, which they have done knowingly on the stamp paper No. 1241, dated 17.02.2006 is a fake document and with uIterior motives by deceitful means with the connivance of Patwari Amanullah Khan, kept such an entry, therefore, requested for action.3. Learned counsel for the petitioners has argued that in fact, in the second F.I.R., the petitioner was arrested, bail was granted by the learned Special Judge (Central), thus, such Court has taken cognizance, whereas the bail in respect of F.I.R, bearing No. 398 is still pending. He also argued that since cognizance has been taken by granting bail, which is duly confirmed by the Special Judge, therefore, he has sought relief of quashment of earlier F.I.R.He also argued that investigation done by the police includes report of handwriting expert, which by itself, is not a conclusive proof to involve the accused, as the same is a Weak type of evidence, not to be considered as a piece of evidence. Same stamp paper has again been made the subject in second F.I.R., therefore, it is violation of Article 13 of the Constitution.2013 Muhammad Yaseen V. S.S.P. Islamabad. Cr.C. 163(Noor-ul-Haq N. Qureshi, J.)He argued that one person cannot be vexed twice for the same offence, which is contrary to the Constitution as well as Section 403, Cr.P.C, and otherwise, there is no evidence available on record on the basis whereof, the accused could be connected with the commission of offence.He argued that during pendency of civil suit, criminal case is to be stayed as a principle of law and final fate of the criminal case is to be decided in view or decision of civil suit, as such, the continuity of investigation, proceedings at any stage, will be a futility. Same being abuse of process of law, thus, requires to be quashed.In support of his contentions, learned counsel for the petitioners has relied upon the following case-law:-(a) 2005 SCMR 152(b) NLR 1989 Criminal 460(C) 1995 MLD 563(d)
3. 2009 CLC 21(e) NLR 1989 Cr.LJ. 214(f) 2011 MLD 64(g) 1997 P.Cr.L.J. 1167(h) 2010 SCMR 1835(i) 2004 SCMR 1859(j) AIR (39) 1962 Nagpur 12(k) NLR 1986 Criminal 154. On the other hand, learned counsel for respondents argued that these are two distinct offences and there is no stamp paper number mentioned in F.I.R. No. 398/2011, P.S. Koral, Islamabad, therefore, subject of both the F.I.Rs. Is not same.It is also argued that both the F.I.Rs. Have been registered occasions. Time, day and stories are quitedifferent as well as the nature of offence. Inclusion of scheduled offences coupled with a public servant being accomplice with the principle accused, has totally changed the nature of offence, which is now falling under scheduled offences and is to be tried exclusively by the learned Special Judge (Central) and ordinary Court cannot try it as bar contained in Section 5 of the said Act.It is also argued that merely, similarity of the sections does not mean that it is a same subject.
4. Even the F.I.R, lodged by the same complainant; but both the offences, in clear terms of the story narrated separately identifying their owrf complexion having no relevancy.He also argued that even if relevancy respecting same stamp paper is taken, that too, will not be considered as a hurdle, as such, execution of the stamp paper is not the subject of F.I.R. No. 524/201T,,which has only limited scope to try an offence in respect of forgery is committed in the relevant record with the active connivance of Patwari, who is f a public servant defined under Section 21, P.P.C. He has relied upon following case-law:-(a) . 2O0O P.Cr.L.J. 956 -(b) PLD 2009 Lahore 8(c) 2004 MLD 1201(d) 1997 MLD 1691-92(e) PLD 2008 Lahore 103(f) PLD 2009 Karachi 350(g) 2008 SCMR76(h) 2008 3CMR 1193(i)
5. 2006 SCMR 276(j) NLR 2008 Criminal 426(k) NLR 1998 Criminal 1612013 Muhammad Yaseen V. S.S.P.
6. Islamabad Cr.C.165(Noor-ul-Haq N. Qureshi, J.)(l) 2008 P.Cr.L.J. 469(m) PLD 2005 Supreme Court 279(n) 2000 P.Cr.L.J. 225. Arguments heard. Record perused and the authorities referred by both the learned counsel so also the police papers.6. From the record, it transpires that there is strong material available on record, which connects the petitioners with the commission of offence.
7. Moreover, it could be hardly ascertained after material placed before the Court while submitting final report under Section 173, Cr.P.C, about the similarity of the subject.7. At this verge, when final report has not been submitted by the police, it is not possible to ascertain that it is same offence.
8. However, the allegations levelled in F.I.R. No. 524, P.S. Shahzad Town, Islamabad are quite different, which mostly defines tampering in the revenue record on the basis of stamp paper by the Patwari, who is a public servant defined under Section 21, R.P.C. Therefore, the offence is to be tried by the Special Judge (Central) coupled with the offence falling under Section 5(2)(ii) of 1947 Act, known as Prevention of Corruption Act, 1947.8. ' The scheduled offences as provided by the Criminal Law Amendment Act of 1958 are exclusively triable by the Special Judge and direct cognizance is to be initiated without application of Section 190, Cr.P.C. Whereas if the same offences committed by private person without assistance of a public servant, it cannot be considered as scheduled offences and could be tried by the ordinary Court having jurisdiction to try.9. Surprisingly, despite a fact narrated in the F.I.R, bearing No. 524/2011 P.S. Shahzad Town, Islamabad, public servant has also been cited as collusive element with the private person, but yet ordinary police was continuing with the investigation, which is not permissible by law. Onthe contrary, even the same was lodged, it should have been Immediately transmitted to the FIA for onward t6 investigation.10. It is also a settled principle of law that even the investigation conducted either erroneously, inadvertently or deliberately, but final report cannot be submitted by the ordinary police, as final fate of the investigation has to be decided by the FIA, as offences specified in F.I.R. No. 524/2011 included into the schedule of FIA Act, as such, same is required to be immediate transferred to FIA without delay.11. Office is directed to communicate this order of S.S.P., Islamabad for compliance and report within one week.12. From the above discussion, I am of the view that authorities cited by the learned counsel for the petitioners have no nexus with the features of the instant case, as same being irrelevant, are not required to be considered in favour of the petitioners.13. No material or substance is available on record on the basis whereof, F.I.R, bearing No. 398/2011 P.S. Koral, Islamabad be quashed' nor any legal aspect is available to help the petitioners in this regard, It is neither a case of doble jeopardy nor a case of double incrimination. As yet challan/final report has not been submitted in both the cases.14. It is also observed that the police frequently violates the period stipulated by law for submission of final report, therefore, directions are issue to immediately by following the provisions of Section 17, Cr.P.C., final report be submitted before the Court having competent jurisdiction without any amount of delay.15. In view of above discussion, I do not incline to grant relief of quashment of F.I.R., hence, the petition in hand is dismissed.Shahrukh V. Bashir Ahmad Cr.C. 167(Abdul Sami Khan, J.)16. The police papers be returned immediately to the SHO concerned for compliance.Petition dismissed.