Sayyed Mazahar Ali Akbar Naqvi, J.--The appellant while invoking Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the judgment of learned High Court dated 12.05.2004 passed in Constitutional Petition Bearing No. 5158 of 2004.
2. Brief facts of the matter are that the appellant was owner in possession of the land measuring 7-Kanals 3-Marlas bearing Khasra No. 1004, situated within the local limits of Mouza Gohawa, Tehsil Gantt., District Lahore. The land was duly purchased by the appellant through a registered sale deed dated 19.07.1982. Muhammad Ali Mohi-ud- Din, real brother of the appellant, was also shareholder to the extent of 17-Marlas in the same Khasra. Vide a separate sale deed dated 22.04.2003 on the basis of fard malkiat Bearing No. 942 dated 21.03.2003 was executed by the Respondent No. 2 along with Saleema Bibi in favour of Abdul Ghani to the extent of 1-Kanal 10-Marlas purported to be situated in the same Khas ra number . Various attempts were made to dispossess the appellant from the landed property resulting into initiation of civil litigation between the parties. An application was moved by the appellant to DCO Lahore wherein it was alleged that the said sale deed was based upon forged and fabricated document (fard malkiat). Hence the EDO (R) was appointed as an Inquiry Officer under the directions of DCO Lahore. During the course of inquiny proceedings, it was found that the document was actually forged and fabricated and it was concluded that the Halqa Patwari had issued the said forged fard malkiat under huge consideration, as a result a case bearing FIR No. 443/2003 dated 22.08.2003 was registered with Police Station South Cantt. under Sections 420, 468, 471, P.P.C. The accused, arrayed in the crime report were taken into custody and subsequently were arrested. The bail application of the accused nomi nated in the FIR was refused by the Judicial Magistrate. Even the bail application before the Sessions Judge also met the same fate. It is worth mentioning that the bail petition before the High Court was dismissed as withdrawn. Respondent No. 2 filed a constitutional petition before the High Court questioning the legality of the "registration of FIR". The said constitutional petition was accepted vide judgment dated 12.05.2004, as a consequence, FIR No. 443/2003 was ordered to be quashed. The appellant filed ICA, however , the same was dismissed as withdrawn on the question of maintainability . Hence the instant appeal.
3. Leave to appeal was granted by this Court vide order dated 20.07.2009 while formulating the following questions for consideration:- "A. Whether the learned High Court not erred in law, while quashing the FIR in oblivion of the facts of case and law on the subject? B. Whether the learned High Court in exercise of its constitutional jurisdiction did not embark upon the factual controversies involved in the case and decided certain questions of facts? C. Whether the impugned judgment is not violative of law laid down by this Court in the judgments reported as "Shah Sadiq v. Muhammad Ashiq (2006 SCMR 276), Muhammad Mansha v. The State (PLJ 2006 SC 1373 ), Imtiaz Ahmed v. Government of Pakistan (1994 SCMR 2142 ), Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh and Baloehistan (PLD 1971. SC 677), Ghulam Mustafa v. The State (2008 SCMR 76), Seema Fareed v . The State ( 2008 SCMR 839 ) and Shaukat Ali Dogar v . Ghulam Qasim (PLD 1994 SCMR 281 )".
D. Whether the impugned judgment is not sustainable under the facts and circumstances of the case?"
4. During the course of proceedings before this Court, the learned counsel for the appellant while opening his address mainly argued that the High Court while passing the judgment has not assigned any legal reasoning which could be made basis for quashing of FIR; that the High Court has altogether ignore d that the very registration of the case was based upon a proper inquiry which was duly conducted by the senior officer of the Revenue Department and it was categorically found to be forge d and obtained through fraudulent means; that the High Court has acted in haste and has solely relied upon the outcome of police investigation which cannot be a legal ground to discard the prosecution case in any manner; that the law favours adjudication on merits and deprecates the disposal summarily; that the superior Courts have always deprecated the adjudication of the matter without following the due process of law; and that in the given circumstances the judgment of the High Court suffers from gross illegality , hence the same is not sustainable in the eyes of law .
5. On the other hand, the learned Law Officer has supported the arguments adva nced by the learned counsel for the appellant and stated that he cannot defend the judgment of the single Bench of the High Court.
6. Learned counsel appearing on behalf of the Respondent No. 2 has argued that the matter with regard to the subject property is sub-judice before the Civil Court; that the subject property is indivisible, therefore the appellant cannot claim ownership solely; that the order passed by the High Court is well-reasoned and the same is passed while taking into consideration all facts and circumstances and the same is unexceptionable; and that as sufficient time has lapsed, therefore, at this stage, no interference is called for by this Court.
7. We have heard the learned counsel for the parties and perused the record.
8. There is no denial to this fact that the respondent has lost the civil litigation up to the High Court and finally Crl.
R. No. 8990/2019 adjudicated and decided vide judgment dated 17.01.2020wher ein the revision petition filed by Respondent No. 2 was dismissed having not pressed. As far as the controversy arisen out of the instant appeal is concerned the super structure raised by Respondent No. 2 claiming share in the land arising out of Khasra No. 1004 situated in Mouza Gohawa Tehsil Cantt. District Lahore is concerned, the Fard Malkiat which is made basis for said share was found to be forged and fabricated initially during the course of an inquiry conducted by EDO(R) on the application of the appellant. Apart from this aspect of the case, as the matter was of criminal nature, the same cannot be closed down with a strok e of pen on the ground that civil litigation is pending adjudication between the parties coupled with the finding in a police investigation. It is now settled that criminal as well as civil proceedings can go side by side if the same is spelled out on the basis of cogent foundation. It is admitted fact that the aforesaid crime report was lodged on the application of the appellant when the document in question was found forged and the same was based upon legal foundation. It would have been much better if the learned Single Bench directed the learned trial Court to conclude the proceedings and decide the lis on the basis of evidence brought on the record, so that it might not prejudic e the case of either of the party . However , the learned single Bench preferred to decide the matter summarily while bypassing the process of law which resulted into disadvantage to the appellant depriving him to supplemen t his case for the redressal of his grievances. The Superior Court of the Country while dealing with such like matter had already given finding that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be defeated by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition the High Court erred in law, otherwise the single Bench has not assigned any justifiable reason while accepting the said petition.
9. We have examined the case from all angles and found that the judgment passed by the single Bench is not sustainable, hence it is set aside. Consequently the trial Court is directed to proceed with the matter and decide the same within a period of three months. The appeal is accordingly allowed.