Through this petition the petitioner has sought quashing of F.I.R. No,200 registered at Police Station Gulberg, Lahore on 12-4-2002 for offences under sections 420/468/452/354, P.P.C. And also quashing of F.I.R. No,602 registered at Police Station Lower Mall, Lahore on 17-8-2002 for offences under sections 419/420/468/471, P.P.C.
2. The controversy involved in both the above mentioned F.I.Rs, revolves around a Power of Attorney and a Will executed by respondent No,8 on 26-2-1999 and registered on 11-3-1999. Admittedly the above mentioned Power of Attorney was revoked by respondent No,8 on 16-4-2002 and the above mentioned Will was revoked by her on 14-7-2002 through registered documents. According to the said Power of Attorney and the Will respondent No,8 had authorized the present petitioner and her husband namely Malik Asrar Elahi to manage and supervise respondent No,8's specified property in Lahore but subsequently the said power of attorney as well as the Will were revoked by respondent No,8 on the ground that respondent No,8 had been kept in the dark by the petitioner and her husband regarding the contents of the said documents and, thus, by playing deception upon respondent No,18 the petitioner and her husband had got the said documents executed and registered.
3. F.I.R. No,200 of 2002 registered at Police Station Gulberg, Lahore pertains not only to the alleged forgery and cheating in respect of the above mentioned Power of Attorney and Will but also about an incident which had allegedly taken place on 11-4-2002 wherein the offences of trespass, outraging of modesty of respondent No,8 and issuance of threat to her in the presence of a police officer were allegedly committed by the petitioner and others. F.I.R. No,602 of 2002 registered at Police Stations Lower Mall, Lahore pertains to impersonation, cheating and forgery allegedly committed by the petitioner and others in respect of the above mentioned Power of Attorney and the Will
4. As regards the prayer regarding .Quashing of F.I.R. No,200 of 2002 registered at Police Station Gulberg, Lahore the learned counsel for the petitioner has addressed lukewarm arguments for seeking quashing thereof as he has appreciated that the allegations regarding trespass, outraging of modesty and issuance of threats to respondent No,8 by the petitioner and others necessarily require holding of a factual inquiry which exercise cannot be undertaken by this Court in the present summary proceedings under Article 199 of the Constitution. Apart from that the investigation of the said criminal case has already been finalized and Challan has already been prepared and, thus, there is hardly any occasion for this Court to interfere in the matter at such a stage of the said case. The learned counsel for the petitioner realizes that in case a challan is submitted in that case before the Court of competent jurisdiction then the petitioners shall have many remedies available to her before the learned trial Court against taking of cognizance and framing of the charge besides applying for the petitioner's premature acquittal under section 249- A, Cr.P.C. In these circumstances neither the learned counsel for the petitioners has asserted with vehemence nor this Court has been persuaded .To quash the said F.I.R. Through the present petition at such a stage.
5. As far as the prayer regarding quashing of F.I.R. No,602 of 2002 registered at Police Station, Lower Mall, Lahore is concerned the learned counsel for the petitioner has addressed detailed and elaborate arguments and has consumed about four hours in dilating upon various factual and legal issues involved in the matter. To put it briefly the learned counsel for the petitioner has argued that the allegations levelled by respondent No,7 in the said F.I.R. Did not disclose commission of any offence whatsoever and, therefore, the police had no jurisdiction to register that F.I.R. The matter pertaining to the self-same Power of Attorney and the Will is already pending before a Civil Court and, therefore, a criminal case could not be registered in respect of that matter; unless there is a wrongful loss caused to any party the allegation of forgery or dishonesty cannot be levelled the allegation regarding impersonation is unfounded as it is an admitted fact that respondent No,8 had herself appeared before the Sub-Registrar at the time of registration of the relevant documents; and the said F.I.R. Is based upon nothing but malice on the part of the complainant party and, therefore, the same warrants quashing by this Court. In support of his submissions the learned counsel for the petitioner has not only referred to but has also extensively quoted from the following precedent cases:
(1) PLD 1968 SC 281 at page 285 (Muhammad Akbar v. The Stateetc.), (2) 1999 PCr.LJ 1381 at page 1415 (Haq Nawaz v.The State), (3) 1982 SCMR 988 (Abdul Haleem v.The State and others), (4) PLD 1992 SC 353 at page 364 (A. Habib Ahmad v. M.K.G. Scott. Christian and 5 others),.(5) PLD 2001 Lahore 399 at pages 401 and 402 (Iftikhar Ahmad and another v. S.H.O., Police Station Kohsar, Islamabad and 2 others), (6) 2000 SCMR 122 at page 125 (Miraj Khan v. Gul Ahmad and 3 others),
(7) 2000 MLD 747 (Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Classs, Khanpur and 5 others), (8)
PLD 1989 Peshawar 145 at pages 147 and 148 (Byram D. Avari and 3 others v. The State and 4 others),
(9) 1998 MLD 686 at page 689 (Muhammad Siddiq v. Rashid Ahmad Ch. And another), (10) 1971 PCr.LJ 988 at page 989 (Mushtaq Ahmad v.The State), (11) PLD 1960 Dacca 897 (M.A. Motalib v.The State).
6. As against that the learned counsel for respondents Nos.7 and 8 has maintained that the petitioner had earlier on filed Writ Petition No,16070 of 2002 before this Court seeking quashing of the same F.I.R., i,e, F.I.R. No,602 of 2002 registered at Police Station Lower Mall, Lahore but the relief regarding quashing of the said F.I.R. Was not pressed by the learned counsel for the petitioner before this Court on 5-9-2002 and the said writ petition had, therefore, been disposed of by this Court after issuing an appropriate direction regarding entrustment of investigation of the said criminal case to some other police officer. Thus, according to the learned counsel for the respondents, the present petition seeking quashing of the same F.I.R. Is hit by the principles of res judicata as well as estoppel and the same is, therefore, not maintainable. It has further been argued that F.I.R. No,602 of 2002 registered at Police Station Lower Mall, Lahore pertains to the above mentioned Power of Attorney only and not to the above mentioned Will whereas the civil suit filed by the petitioner is only in respect of the Will and its revocation and, therefore, the criminal case in question pertains to a different subject-matter than that of the civil suit. He has also argued that the F.I.R. In question is still at its investigation stage and this Court should not scuttle or stifle the investigation at such a premature stage. He has read out the provisions of sections 463 and 464, P.P.C. To maintain that the allegations levelled in the F.I.R. Clearly attract the definitions of forgery and false document and thus, the same need to be investigated. He has further maintained that if the allegations levelled in the said F.I.R. Are not found to be established during the investigation then the petitioner can be discharged under section 169, Cr.P.C. Or the case against her can be got cancelled under rule 24.7 of the Police Rules, 1934. It has also been argued that the original Power of Attorney is yet to be recovered from the petitioner and her co-accused. It has lastly been argued by him that if such matters are to be subject-matter of a civil suit alone then the provisions of sections 463 and 464, P.P.C. Would not have been included by the Legislature in the Pakistan Penal Code. With these arguments the learned counsel for the respondents Nos.7 and 8 has prayed for dismissal of this writ petition. The learned counsel for the State has also maintained that the present petition is not maintainable as the relief qua F.I.R. No,200 of 2002 registered at Police Station Gulberg, Lahore requires holding of a factual inquiry and the relief qua F.I.R. No,602 of 2002 registered at Police Station Lower Mall, Lahore is hit by the principles of res judicata and estoppel.
7. After hearing the learned counsel for the parties at great length` and after attending to all the factual and legal aspects of the matter canvassed before this Court in proceedings lasting about five hours I have felt no hesitation in concluding that the allegations levelled in F.I.R. No,200 of 2002 registered at Police Station Gulberg, Lahore pertaining to commission of trespass, outraging of modesty and issuance of threats, etc. Necessarily require holding of a factual inquiry which exercise cannot be undertaken by this Court in the present summary proceedings under Article 199 of the Constitution. It is not disputed that the complainant as well as the witnesses mentioned in the said F.I.R. Have so far stood by their statements made before the police in respect of the said allegations and after completion of investigation a challan has already been prepared in that case for onward submission before the Court of competent jurisdiction. It shall, therefore,, be premature for this Court to comment upon the veracity or otherwise of the allegations contained in the said F.I.R. The purpose of quashing of an F.I.R. Through exercise of writ jurisdiction is primarily to save a person from the Rigors of an unjustified investigation and if investigation of a criminal case has already been finalized .Then this Court is generally slow in interfering in the matter at such a stage as in case of submission of a Challan before the Court of competent jurisdiction many remedies would become available to the affected person. A reference in this regard may be made to the cases of Haji Muhammad Sadiq v. Ilaqa Magistrate, Police Station Factory Area, Faisalabad and others 2001 PCr.LJ 1571, Farrukh Salim v. The State PLD 1997 Lahore 385 (DB) and Qaiser Mahmood v.
Muhammad Shafi and another PLD 1998 Lahore 72. As already observed above even the learned counsel for the petitioner has been lukewarm in inviting this Court's interference vis-a-vis the said criminal case at such a stage. In these circumstances no occasion has been found by this Court for quashing the said F.I.R. At such a stage.
8. As regards F.I.R. No,602 of 2002 registered at Police Station Lower Mall, Lahore it is significant to notice that the present petitioner had earlier on filed Writ Petition No,16070 of 2002 before this Court seeking quashing of the same F.I.R. But on 5-9-2002 the petitioner's learned counsel (Malik Asrar Elahi, Advocate who happens to be the husband of the petitioner as well as an accused person in the said criminal case) had not pressed the relief qua quashing of that F.I.R. And the said writ petition had been disposed of by this Court on that day in the following terms: "Learned counsel for the petitioner after arguing the case at some length is satisfied if a direction is issued to respondent No,1 to entrust the investigation of case to any other police officer because the petitioner is not satisfied with the conduct of the Investigating Officer. If the petitioner approaches by submitting an application to the S.S.P., Investigation for transfer of the investigation, he shall entrust the investigation to any other police official and shall ensure that the investigation is conducted in an independent and impartial manner without influenced by any of the parties. Mr. Muhammad Shan Gul, Advocate for A.-G. Shall ensure the compliance of this order and shall direct the S.S.P., Investigation in this regard. Disposed of with this direction.
(Ijaz Ahmad Chauhdry), Judge."
The above mentioned order passed by this Court clearly shows that the relief qua quashing of that F.I.R. Had been abandoned and not, pressed by the petitioner at that stage after arguing the case at some length and the petitioner had felt satisfied with issuance of a direction by this Court regarding transfer of investigation of that criminal case. The essence of the principle of res judicata contained in section 11, C.P.C. Is that a relief which is or which can be claimed and prayed for by a litigant through one recourse to the law cannot be claimed or prayed for again by the same litigant before the same forum. The principle of res judicata, thus, saves the Court from being vexed repeatedly by a litigant for the same relief or for a relief which could have been claimed or prayed for by him earlier on. The learned counsel for the petitioner has laid great emphasis on the fact that the earlier writ petition filed by the petitioner had not been heard and decided on the merits of the case and, according to him, in the absence of a formal adjudication on the relief qua quashing of that F.I.R. The principle of res judicata cannot be attracted to the present writ petition. I have, however, entertained serious doubts about acceptability of this submission of the learned counsel for the petitioner for the simple reason that the relief regarding quashing of that F.I.R. Had not only been pressed by the learned counsel for the petitioner before this Court through the above mentioned writ petition but the matter had been argued by the learned counsel at some length and it was only after failing to convince the Court regarding that relief that the learned counsel for the petitioner had felt satisfied, with disposing of that writ petition with a direction regarding transfer of investigation of the criminal case in question. In these circumstances for all practical and legal purposes it is to be deemed that the said relief being insisted upon by the petitioner in that writ petition had actually and consciously been denied and refused to the petitioner by this Court. Thus, the petitioner cannot be allowed to approach this Court again so as to press or pray for the same relief all over again. The principle of estoppel may also be pressed into service in this connection. The learned counsel for the respondents has referred to the cases of Muhammad Sadiq through General-Attorney v. Khawaja Khalid Saeed, Chairman, Capital Development Authority, Islamabad and another 2001 CLC 569, Saleem Ahmad v. Khushi Muhammad 1974 SCMR 224 and Capital Development Authority, Islamabad through its Chairman v. Khuda Bakhsh and 5 others 1994 SCMR 771 in support of what has been held by this Court above.
9. Adverting now to the submissions of the learned counsel for the petitioner made in respect of F.I.R. No,602 of 2002 registered at Police Station Lower Mall, Lahore it may straightaway be observed that by virtue of the provisions of sections 463 and 464, P.P.C. Making of a false document to support a claim with intent to commit a fraud is an offence and playing deception or acting with dishonest or fraudulent intention in the making of a document is included in the offence of forgery contemplated by c the said provisions. The F.I.R. In question expressly and specifically alleged such deception having been played upon respondent No,.8. In these circumstances it cannot be urged with airy degree of seriousness that the allegations levelled in the said F.I.R. Did not disclose any offence at all. The detailed arguments addressed by the learned counsel for the petitioner to the effect that iii view of pendency of a civil suit regarding the same subject-matter resort could not be had to criminal prosecution of the petitioner overlook the fact that F.I.R. No,602 of 2002 registered at Police Station Lower Mall, Lahore pertains only to the Power of Attorney executed on 26-2-1999 and registered on 11-3-1999 whereas the civil suit filed by the petitioner is only in respect of a Will and revocation thereof and not in respect of the above mentioned Power of Attorney. In this view of the matter the very premise of the arguments of the learned counsel for the petitioner in this respect appears to be misconceived and misplaced. Even otherwise the case-law referred to by the learned counsel for the petitioner does not lay down a principle of universal application as in an appropriate case civil litigation as well as criminal prosecution can proceed simultaneously or one after the other. A reference in this regard may be made to the cases of Syed Muhammad Ahmad v.
The State 1972 SCMR 85, Muhammad Akbar v.The State etc.PLD 1968 SC 281 and Akhtar Hussain Zaidi v.The State PLD 1985 Lah.
662. It may not be out of place to mention here that the dispute in this case is not about any title to any property but the real issue is whether deception had actually been played by the petitioner and her co-accused or not regarding the contents of the Power of Attorney which was executed and registered. Apart from that a civil wrong may become a criminal wrong where an element of dishonest intention or knowledge creeps into the matter. In this connection the provisions of sections 35 and 24, P.P.C. May be referred to with advantage. It is in these circumstances that a civil breach of trust becomes a criminal breach of trust or a civil trespass is transformed into a criminal trespass. In the same vein it can conveniently be visualized that a transaction which is otherwise civil in nature may involve a criminal offence if a false document within the meanings of sections 463 and 464, P.P.C. Is prepared after playing deception as alleged in F.I.R. No,602, of 2002. It may be added here that existence or otherwise of a document, interpretation of its contents or the rights or liabilities created by such a document may be a subject fit for a civil suit but forgery by preparation of a false document, I have no manner of doubt, is out and out a crime attracting the domain of criminal law and incidentally this is exactly what has been alleged in F.I.R. No,602 of 2002.
10. It may not be out of place to mention here that a number of documents have been produced before this Court during the hearing of this petition which prima facie tend to show that the conduct of the petitioner and her co-accused in the matter might not have been above board and, thus, an allegation of dishonest intention or knowledge could seriously be alleged in the whole transaction necessitating holding of a proper investigation of the offences in question. All such documents have been made a part of the record of this petition but I have, however, consciously refrained from referring to those documents in the present judgment and also from commenting upon various parts thereof lest such observations may prejudice either the criminal investigation of the F.I.R. In question or the civil suit which is already pending before a Civil Court.
11. It may be true that when the same matter is pending before a civil Court as well as a Criminal Court there sometimes in an appropriate case proceedings before the Criminal Court are stayed while awaiting decision of the Civil Court in that matter. That stage has surely not arrived in this case as the criminal matter in the present case is still at this investigation stage and it has yet to reach a Criminal Court. There is no law which requires stoppage of investigation of a criminal case on such a ground. As a matter of fact the intention of the law appears to be that investigation of a criminal offence should not ordinarily be stopped and the same should be concluded and finalized at the earliest possible. Such an approach is based upon public policy because due to stoppage of investigation the necessary inquiry may be delayed, the witnesses may die or become unavailable, memories may fade, documents may disappear or lost or the relevant evidence may be tampered with or suborned. It is probably in this contest that the provisions of section 56(e) of the Specific Relief Act, 1877 mandate that no injunction can be granted against criminal investigation.
12. Apart from what has been observed above the petitioner appears to have sought through this petition partial quashing of the F.I.R. In question to her extent as no other accused person has come forward to join her in the relief prayed for herein. Advisability of such a partial quashing of an F.I.R. Is by itself quit suspect.
13. For what has been discussed above no occasion has been found by this Court for quashing F.I.R.
No,602 of 2002 registered at Police Station Lower Mall, Lahore at such a stage.
14. Pursuant to the discussion made above this petition is hereby dismissed with no order as to costs.