MUHAMMAD TUFAIL vs THE STATE AND ANOTHER

ORDER

1. NASIM HASAN SHAH, J.-This petition for special leave to appeal is directed against the order dated 13-9-1978 of the Lahore High Court dismissing in limine Cr. Misc. No. 656-Q of 1978, filed by the petitioner herein for quashment of the proceedings initiated against him at the instance of respondent No. 2.

2. Briefly stated, the facts leading to this petition are that one Dr. Sharif Hussain owned land measuring 4 kanals at Okara. Out of this land, it is alleged, one Bahawal purchased 2 kanals and an agreement to this effect was executed between Sharif Hussain and Bahawal Khan on 11-5-1973.

3. Sharif Hussain died on 6-7-1973 and Bahawal Khan called upon legal heirs to complete the execution of the registered sale deed on the basis of the said agreement, but they refused. Hence the said Bahawal Khan filed a suit in the Court of Civil Judge, Okara, on 27-2-1978 impleading respondent No. 2 as one of the defendants, being the legal heir of Sharif Hussain. In retaliation, Malik Fakhar Hussain (respondent No. 2 herein) got regis--tered a case on 4-4-1978 under sections 468, 471 and 109, P. P. C. To the effect that the agreement dated 11-5-1973 is a forged one with a view to depriving the legal heirs of Sharif Hussain of the property. The allegation against the petitioner is that he was instrumental in the preparation of the agreement, which is a fabricated documents.

4. The petitioner moved the Lahore High Court for quashment of the proceedings initiated against him in the Court of Mr. Mohammad Akram, Magistrate, Okara, pursuant to the report lodged by Malik Fakhar Hussain. This application came up for hearing before a learned Single Judge of the said Court who dismissed the same vide order dated 13-9-1978, observing that as no proceedings had been taken against the petitioner except that he was merely summoned by the Magistrate, it was not a fit stage for quashment of the proceedings.

5. The main argument in support of this petition raised on behalf of the petitioner's counsel is that since the genuineness of the agreement dated 11-5-1973 is being adjudicated upon in the civil Court, the criminal proceedings with respect to the same document on the allegation that it was forged by the petitioner and others should be quashed as the civil Court is already seized of the question pertaining to its validity.

6. We may observe that the submission would have been relevant if the question was whether the proceedings before the Criminal Court should be stayed while the proceedings before the civil Court were still pending. In the instant case the petitioner has prayed for quashment of the proceed--ings before the criminal Court and there is no bar in law to civil and criminal actions continuing at the same. However, if in the course of the evidence recorded during the proceedings it transpires that the matter raises a question of civil liability only and that the proceedings before the Criminal Court are an abuse of the process of the Court, he can apply again for the quashment of the proceedings. At the moment, we -agree with the High Court that it is not a fit stage for quashment of the proceedings since no proceedings have yet been taken and the petitioner has only been summoned by the Magistrate.

7. The petition is dismissed with the above observations.