' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan has been filed for quashment of the F.I.R. No, 662/1994, dated 5-12-1994 under section 420/467/471/34, P.P.C.
Registered at Police Station Samundari.
2. The brief facts giving rise to this petition are that there is a dispute between the complainant Barkat Bibi respondent No,4 and Mst. Salma Bibi respondent No,2 relating to plot of land measuring 2 Kanals 9 Marlas situated in Samundari District Faisalabad. As alleged, Barkat Bibi got agreement to sell, dated 10-6-1990 and received the money amounting to Rs,1,50,000 from petitioner No,2 Mst.
Salma Bibi wife of petitioner No,1. The respondent No,4 failed to perform the contract and usurp the said money; hence petitioner No,2 filed a civil suit for specific performance of contract in the Court of Senior Civil Judge, Samundari on 13-3-1991. Mirza Saber Baig, Advocate respondent No,4 entered appearance in the Court on 27-3-1991 but failed to file written statement on behalf of respondent No,4 in the said Court. The learned Civil Judge after recording the evidence of respondent No,2 decreed the suit ex parte in favour of petitioner No,2 Mst. Salma Bibi and against respondent No,4 Mst. Barkat Bibi on 30-4-1991.
3. The respondent No,4, has alleged in the F.I.R., that the petitioners prepared fictitious and forged documents on 10-6-1990 pertaining to agreement to sell the disputed plot, she filed writ petition before the High Court and was directed by the learned Judge of the High Court to lodge the report hence the case F.I.R. Aforementioned was registered on the direction of the High Court. It is an admitted fact that during the preliminary investigation, the Investigating Officer discharged the case on 7-12-1994 and found the petitioners innocent. The respondent No,4, as stated by the learned counsel for the petitioners moved an application under section 12(2), C.P.C. Which is pending for adjudication in the Court of Civil Judge at Samundari.
4. I have heard the arguments advanced by the learned counsel for the parties and have perused the record.
5. Learned counsel for respondent No,4 at the very out set vehemently contended that the Court is not competent to entertain the writ petition and is not empowered to interfere the investigation being held by the police and relied upon the ease Ghulam Akbar v. Muhammad Ilyas and another PLD 1975 Kar. 231 and Khawaja Fazal Karim v. State and another 1976 SCMR 461.
6. It has been held in case Ghulam Akbar v. Muhammad Ilyas Supra that the Court should be reluctant to interfere in a case where a competent Court has, after examining the evidence addressed before it come to the view that a prima facie case is disclosed and has framed charges or summon the accused to appear unless it can be said that the charges in its face and the evidence, even if believed does not discharge any offence while in case Khawaja Fazal Karim's case Supra it was observed that:-- "It is well-settled that the inherent jurisdiction of the High Court under section 561, Cr.P.C. Is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice."
7. The contention of the learned counsel indeed carries weight as ordinarily the High Court does not interfere in the investigation of a criminal case to obstruct or divert the ordinary course of criminal procedure if it comes to the view that a prima facie case is disclosed but where the Court comes to a clear conclusion without any manner of doubt that the accused persons are innocent and for that in any view of the matter their conviction is quite impossible it is duty bound to quash the criminal proceedings in accordance with law.
8. In case in hand, a competent Civil Court has already given its verdict and decree has been passed on 30-4-1991 in favour of the petitioner No,2 and against respondent No,4 on the basis of agreement to sell dated 10-8-1990 while the F.I.R. Has been lodged relating to the plot after a period of nearly four years without mentioning the finality of decree passed by the competent Court against the complainant respondent No,4. The respondent No,4 as contended by the learned counsel for the petitioner has also filed application under section 12(2), Cr.P.C. If so, the proper forum to settle the issue whether any fraud has been committed or not by the petitioners is the Court which passed the decree on the basis of agreement to sell and the criminal proceedings cannot be initiated after the decree has been passed by a competent Court. It was held in case Mrs. K.B. Boga and others v. Ijaz Ahmad Khan, Deputy Settlement Commissioner, Lahore 1991 M LD 835 that:- "There can be no cavil with the proposition that fraud vitiates all solemn proceedings but then the question which arise is as to whether a matter which had attained finality up to the level of the Supreme Court can be reopened on this ground by any other Court or authority. The answer to this question has to be in the negative. To allow a subordinate Court or any authority to interfere in such a matter would not only result any erosion of finality of the judgment but would also be barred by the general principles of res judicata. The remedy of the affected persons in such cases lies in approaching the same Court or the Appellate Court, if any and not by separate proceedings in a lower forum.
' In case in hand, the respondents Nos.1 to 3 are not competent to overrule and supersede the order passed by a competent Civil Court, any interference in the decree passed by a competent Court tantamounts to contempt of Court and the act of the respondents Nos.1 to 3 is nothing but transgression of the restriction and Misuse of power which is unwarranted and deserves action.
9. As already observed, the proper forum to decide an issue is the Court which passed the decree or wherefrom it attained finality. If the Court before which application under section 12(2), C.P.C. Is pending comes to the conclusion, as alleged, that the document pertaining to agreement to sell, dated 10-6-1990 is forged one and even the power of attorney filed by Mirza Saber Baig, Advocate is fictitious or he was not authorised by the 'complainant respondent No,4 can suo motu initiate proceedings under sections 195 and 476, Cr.P.C. Which are meant for such purpose as the police is not competent to take the cognizance of an offence which has been committed during judicial proceedings before a competent Court.
10. The outcome of the above discussion is that this petition is accepted and the impugned F.I.R. Is quashed with no order as to costs. /p>