' NOOR-UL-HAQ N. QURESHI, J.---Through the instant criminal petition under section 561-A, Cr.P.C., petitioner seeks quashment of F.I.R. No,133, under sections 420/468/471/34, P.P.C. Registered at Police Station Margalla, Islamabad and order passed by learned Judicial Magistrate, Islamabad, dismissing the application under section 249-A, Cr.P.C. Moved by the petitioner.
2. Brief facts as narrated in the petition are that a civil dispute in shape of Suit No,296 of 2009 filed by wife of Mushtaq Ahmad against the complainant is pending before learned Senior Civil Judge, Islamabad. Allegedly, a forged agreement of sale of the house of complainant was prepared and produced in the said suit by Gul Zahida Akhtar. The complainant after a sufficient period lodged F.I.R. Under crime number and section referred above with the following story narrated therein.
3. The complainant used to reside in Briton He purrhased House No,919, Sector I-10/1, Islamabad transfer letter was issu .d in his name on 5-4-2002. On request of Mst. Gul Zahida Akhtar, upper portion was given to her for residence, whereas lower portion was leased out through attorney Sabir Hussain on rent. Allegedly Mst. Gul Zahida Akhtar and her husband connivancely designed a plan compelled the tenant to leave the house and by showing themselves rented out lower portion passing Rizwan himself as owner of the house. On his application moved through Overseas Pakistan Government, an inquiry was conducted to which, Mst. Gul Zahida Akhtar disclosed oral agreement, whereas now they have disclosed a forged agreement connivancely prepared by accused cited in the F.I.R., on the date was said to have been prepared, the complainant was outside Pakistan and signatures thereon are forged (copy of Passport produced). Also they filed civil suit in the Civil Court on the basis of forged agreement in order to usurp the property.
(Photocopy of forged agreement was attached). Said application was entertained and finally F.I.R.
Bearing Crime Number No,133 was registered at Margalla Police Station.
4. After usual investigation, inquiry report under section 173 was submitted. At the trial, the accused moved an application under section 249-A, Cr.P.C. Which was dismissed vide order dated 29-3- 2012 by the learned Judicial Magistrate Section-30, Islamabad. The petitioner instead of preferring revision application before the Sessions Court, directly filed the instant criminal petition seeking quashment of the F. I. R. /proceedings.
5. Learned counsel for the petitioner argued that civil suit was filed by Mst. Gul Zahida Akhtar wife of Mushtaq Ahmad on 6-4-2009, wherein the defendant/complainant moved an application under section 476, Cr.P.C. On 25-7-2009. He further argued that after moving an application under section 476, .Cr.P.C. On 25-7-2009 the complainant also lodged F.I.R. On 10-3-2010, therefore, following the procedure laid down under section 195, Cr.P.C., registration of F.I.R. Is an illegal process as once a document is produced in court unless a final verdict of Court to that document has not been set forth, the allegation in shape of F.I.R. Cannot be levelled as it is a question to be, determined by the Civil Court with regard to the genuineness of the document.
6. He further argued that on one side, application under section 476, Cr.P.C. Is moved by the same complainant and on other side, he has lodged F.I.R., therefore, in view of Article 13 of the Constitution of Islamic Republic of Pakistan and section 403, Cr.P.C. The accused person cannot be jeopardized twice for the same offence. Besides the fact that it is yet to be determined finally about the guilt or the innocence of the accused. He further argued that agreement has not yet been declared forged by any Court of law nor the complainant has filed a suit for cancellation of the document, therefore, registration of F.I.R. Is pre-mature. He also argued that Rizwan Khan cited as an accused is neither witness, nor beneficiary or signatory of the document, therefore, his name has been inserted as scapegoat. He also argued that a photocopy of the agreement is relied upon, which being secondary piece of evidence is inadmissible unless its original can be secured or produced by the complainant, allegation on the basis of photocopy cannot be substantiated. In support of contention raised with regard to the quashment of case directly, the learned counsel for the petitioner has produced following case-law:--
(1) 1998.- SCMR 873 (State through Advocate-General N.-W.F.P. Peshawar and others v. Gulzar Muhammad and others)
(2) 1995 MLD 511 (Syed Muhammad Awais Shibli v. The State)
(3) 1987 SCMR 1371 (Muhammad Shafique and others v. Abdul Hayee and others)
(4) PLD 1993 Quetta 113 (Habib Ullah N. Malik Muhammad Hashim and another)
(5) 2000 SCMR 122 (Miraj Khan v. Gul Ahmed and-3 others)
(6) 1983 PCr.LJ 1440 (Muhammad Sharif v. Mazharul Haq and 5 others)
(7) 1988 PCr.LJ 1229 (Muhammad Siddique Sabir v. Kh. Muhammad Naeem Lone and the State); and
(8) 1980 PCr.LJ 818 (Kazmali Dossa v. Faisal Malik and 5 others).
7. Besides the other authorities referred, case-law reported in "1998 SCMR 873, (State through Advocate-General N.-W.F.P., Peshawar and others v. Gulzar Muhammad and others, their Lordships have clarified the legal position, whereby learned trial Court is to be approached first and delay per se is not generally sufficient for constituting a ground for abuse of the process Court. In another case law reported in "PLD 2004 SC 298, (Bashir Ahmad v. Zafar-ul-Islam)", the principle laid down therein that at the first instance, the learned trial Court is to be approached and in case application moved under section 249-A or 265-K, Cr.P.C. Is allowed as a result, accused is acquitted, the acquittal appeal under section 417, Cr.P.C. Is to be preferred. Whereas application is disallowed, the revision would be the best course to be agitated in case when such application is declined.
8. Learned counsel for the petitioner also emphasized a legal aspect while referring section 195, Cr.P.C., which provides that if offence related to the production of document during proceedings of the court, only that court or to whom it is subordinate, to submit a plaint, whereupon the concerned Court shall take cognizance of the offence and no other procedure is prescribed in this regard.
Therefore, registration of the F.I.R. And proceedings initiated thereupon are illegal on the face of it. In this regard, he produced following case-laws:--
(1) 1997 MLD 2097 (Muhammad Yaqub v. SHO and others)
(2) 1999 PCr.LJ 1239 (Iftikhar Ali v. The State and Abdul Hafeez Awan)- (3)..1986 MLD 1153 (Mufti Abdul Ghani Shah v. The State).
(4) 1998 MLD 686 (Muhammad Siddiq v. Rashid Ahmad Ch. And another)
(5) 2005 YLR 3186 (Ayyaz Mehmood Khan Khakwani Muhammad Ashraf Mohandra and others)
(6) 2000 SCMR 122 (Miraj Khan v. Gul Ahmad and three others)
(7) PLD 2005 Lahore 386 (Muhammad Suleman and others v. Abdur Razzaque and others) and
(8) 1998 MLD 686 (Muhammad Siddiq v.. Rashid Ahmad Ch. And another).
9. Beside the above referred case-laws, the learned counsel for the petitioner also produced some irrelevant case-law, which has absolutely no nexus with the present case as the same relates to direct complaint filed in this regard. However, the case-laws produced are reproduced hereunder:- -
(1) 1988 MLD 2635 (Shaukat Hussain Khan v. The State)
(2) 2006 PCr.LJ 476 (Lt. Col. (Rtd.) Tariq Latif v. Mst. Jamila Sultana and another)
(3) 2000 SCMR 1904 (Abdul Wahab Khan v. Muhammad Nawaz and 7 others)
(4) 1977 PCr.LJ 546 (Qaim Din and 3 others v. The State and another)
(5) 1984 PCr.LJ 1340 (Dr. Abdul Aziz v. Anwar Khan and 2 others)
(6) 1990 PCr.LJ 97, (Ghulam Shabbir and 6 others v. The State and another) and
(7) 1987 MLD 1494 (Amir Ahmed Khan v. The State and others).
10. Learned counsel for the petitioner also argued another legal aspect while referring Article 10-A of the Constitution of Islamic Republic of Pakistan, which provides fair trial, is the right of the accused.
11. I would like to discuss first the very legal point with regard to Article 10-A of the Constitution, which is an admitted fact need not be denied and ultimately, it is duty casting upon the Court concerned to provide every opportunity to the accused for conducting fair trial, which has neither been denied nor alleged.
12. So far the concern of legal position as alleged while referring section 195, Cr.P.C., it become crystal clear that the F.I.R. Itself showing an offence committed by the accused connivancely by forging the signatures of the complainant when he was abroad, for which, he produced passport showing his entry in Pakistan, therefore, apparently the very strong evidence he has produced, thereby the disputed document i.e, agreement for sale is appeared to be a forged document.
13. Here distinctive feature, which is taken into consideration, whereby the complainant has only informatively mentioned in the F.I.R. That such agreement has been submitted in the Civil Court with the suit during proceedings, otherwise, rest of the contents of the F.I:R. Alleging the character of the accused with regard to the commission of offence specified therein.
14. So far the concern of an offence committed by the accused while producing the forged agreement before the Court is a total distinct offence related to the Court proceedings, but same could be taken into task by the Court concerned, when it will be observed as a forged document.
15. Again it remains prerogative of the Court either to submit a complaint following the procedure laid down under section 195, Cr.P.C. Or may not. But the offence of forging document is quite different and using. The same as defined by section 471, P.P.C. Definitely indicated by the complainant by engaging the tenant extorting money from them in shape of rent by showing themselves as owner of the property. It is not to be considered as an offence for using the forged document as genuine in the court proceedings.
16. Therefore, in my humble view, these are two separate offences, i.e, one has been committed with the Court, for which, court has to form an opinion and thereupon to submit complaint before the Court of competent jurisdiction by following procedure laid down under section 195, Cr.P.C. The other one is forging the document, for which, after a lengthy probe through investigation was conducted and after completing the same report under section 173, Cr.P.C. Has also been submitted, 'which is pending adjudication before the competent Court having jurisdiction to try the offence.
17. Another legal aspect is yet remained in the field in case if the civil court before whom the suit is instituted if reached to the conclusion that the document produced before it is forged, then ultimately, it will be referred to the same court where Challan of instant case has been submitted, under such circumstances it will depend upon the learned trial Court either to amalgamate both the cases together with each other, or may try the same as separate offences.
18. In my humble view, the petitioner at such verge can move the quashment in case if he observes the violation of law, which create grounds of abuse of process of law.
19. At this stage, when only an application moved before the Civil Court for taking action under section 476, Cr.P.C., which correspond exercise of section 195, Cr.P.C. Has not yet been initiated.
Therefore, no question of double punishment or double jeopardy has yet been come in the field.
20. There is no bar provided by law about registration of cases, but double punishment of the same case in respect of the same offence is protected by Article 13 of the Constitution of Islamic Republic of Pakistan and section 403, Cr.P.C., which captioned "once tried acquitted or convicted not to be tried again".
21. In view of above discussion, I find no merits in the instant criminal miscellaneous, the same is therefore, dismissed in limine.