Instant petition is for quashment of F.I.R. No,713, dated 15-10-1997 of Police Station Mirpur Abbottabad, of which the investigation is still in process.
Grounds taken up in the petition and argued at the bar are to the effect that the registration of the case F.I.R. is illegal, because on the subject-matter, civil dispute between the parties is pending; that pending civil suit, no criminal proceeding can be initiated against the petitioner; that simultaneous proceeding tantamounts to double jeopardy; that no criminal liability of the petitioner can be spelt out from facts as given in the report; that, report has been made after long delay, through civil proceedings started back in the year 1995.
2. Learned counsel for the petitioner in support of his submission relied on 1991 PCr.LJ 2177, where F.I.R. was quashed because it was made after 3 months of the occurrence. Reference was also made to 1994 PCr.LJ. page 67 where on the basis of facts given in F.I.R. no case of criminal nature could be made and finally, reliance was placed on PLD 1976 Lahore page 148, to the effect that when question for determination as to commission of forgery, fraud deception are involved, then the proceedings before Criminal Courts are to be stayed, till they are decided by Civil Court.
The last submission was in fact an alternate plea that in case the F.I.R. is not quashed, then, order be passed that no further proceedings/step be taken pursuant to the report by the police.
3. To controvert the arguments of petitioner, learned counsel for respondent-complainant submitted that F.I.R. has been properly lodged, that mere delay in filing the report is not sine qua non for quashing the same, that, material so far placed on file and investigation conducted has unveiled the criminal acts of the petitioner and his co-accused. That there is no legal bar in continuing with pursuing two remedies, one fixing the civil liability and the other criminal, that notwithstanding the fact of civil suit pending between the parties, it was in fact disclosure/admission made by the petitioner in course of civil litigation that forgery and fraud was admitted, on which the complainant-respondent was constrained to resort to criminal proceedings. Learned counsel referred to 1975 PCr.U. 27 in support of his submission.
4. To understand the above legal counter-submissions I would here make reference to factual background of the case.
Petitioner Haji Ehsanullah purchased land/plot measuring one Kanal and 10 Marlas, through mutation dated 4-7-1994 on the basis of power of attorney attested on 1-3-1994. The original owner in the Revenue Record is Mst. Shahnaz Hussain Shah wife of Ejaz Hussain Shah. Power of attorney dated 1-3-1994 No,1041 is allegedly executed at Karachi by Mst. Shahnaz in favour of one Ali Askar Shah.
Second transaction took place when another plot of same size, i,e,, one Kanal, 10 Marlas was purchased by Qari Mahboobur Rehman from Hafiz Ehsanullah (petitioner) who got power of attorney No,2361, dated 7-6-1994, executed again at Karachi by Mr. Ejaz Hussain in his favour. It was the petitioner who then got attested six mutations bearing Nos.3380 to 3385, dated 26-1-1995 in favour of Qari Mehboob.
Both the above sales arc said to have been transacted through Paradise Property Dealers of which Chan Zeb Abdul Waheed, Muhammad Riaz and Muhammad Anwar are co-partners.
5. Petitioner Hafiz Ehsanullah and Qari Mehboobur Rehman filed civil suit on 15-11-1995 against Mst. Shahnaz and Mr. Ejaz Hussain for permanent injunction asking the Court to restrain the defendants. not to interfere with their property rights, based on mutations dated 4-7-1994 and dated 24-1-1995.
Mst. Shahnaz and Ejaz Hussain also filed suit on 7-4-1996 against Hafiz Ehsanullah, Qari Mehboobur Rehman and others who allegedly have purchased their property through fictitious, forged and bogus power of attorney. They accordingly challenged entries in the Revenue Record in favour of defendants in their suit.
6. Interesting aspect of the case is that Paradise Property Dealers are not party to either of the suits, but as admitted by learned counsel for the petitioner that co-partners of Paradise Property Dealers Chanzeb is still absconding) have struck a compromise with Hafiz Ehsanullah and Qari Mehboobur Rehman to give them other plots in lieu of plots in dispute and would also make cash payment of deficient amount.
Pursuant to said agreement Hafiz Ehsanullah filed his written statement in suit filed by complainant where he admitted that two power of attorneys which form basis of their proprietary rights are forged, he through another undertaking given in writing accepted to re-alienate the plot in favour of complainant and would hand over the possession.
7. Many more details were highlighted by either side by making reference to different documents presently on the file. I would avoid to make any comments as to any entry made, document executed, or agreements reached upon, as all such matters are sub judice before learned Civil Judge.
8. The question that is to be resolved at present is, if or not F.I.R. No,713, dated 15-10-1997, and all consequential proceedings should be quashed on the ground of pendency of civil suit? My answer is in negative, for the following reasons:-- (a)There is no legal bar in resorting to adopt either course against a wrong-doer, civil proceeding or criminal, or both at a time.
(b)In the report, which is sought to be quashed. co-partners of Paradise Property Dealers are also charged who are not party to either of the civil suit.
(c)Fraud is alleged by all accused named in the Report and are said to be involved by virtue of their joint venture in procuring/making forged power of attorneys.
(d) After the registration of the case, the investigation has just commenced when the instant quashment application was filed. The record has since been requisitioned by this Court, no further investigation as to the genuineness or otherwise of the power of attorneys could be ascertained.
The case being at initial stages of the investigation, the quashment of the F.I.R. at this stage would tantamount to stifle the working of the police in accordance with law.
(e) The alleged admission by the petitioner before the Civil Court as to the power of attorneys being forged also requires due consideration which can only be done after conducting thorough investigation and of course is subject to trial.
(t) The quashment of the F.I.R. at this stage, the contents of which are directly sub judice before the Civil Court would also amount to pre-empting the jurisdiction of the Civil Judge who is presently seized of the matter.
9. No doubt that section 561-A, Cr.P.C. is regarding the inherent power of the High Court where under no provisions of the Criminal Procedure Code can limit or affect the power of this Court to make any such order as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court, or otherwise to secure the ends of justice.
In the instant case, the petitioner has miserably failed to show the abuse of powers of any Court, as no criminal proceedings are pending against him presently, before any Court, As to "secure the ends of justice" this part of the section is not worded or inserted to help the accused but is equally applicable to the case of victim or complainant. Either of the party if feels like that the ends of justice would be more secured by invoking the provisions of section 561-A, Cr.P.C. can make an application to this Court. The apparent facts, rather suggest that ends of justice would be rather more secured if the investigation is allowed to be carried out on the basis of the F.I.R. registered against the petitioner and his co-accused and if they are found prima facie involved the case will be then put up before the learned trial Judge who is only the competent forum to decide the fate of the case on the basis of evidence led before it either oral or documentary.
10.These are detailed reasons for my short order passed on even date. Quashment petition is dismissed alongwith Criminal Miscellaneous.