Mehmood Ahmad vs ASJ, etc

ORDER

This petition is voiced against the order dated 11.11.2022 whereby the learned Addl. Sessions Judge/ex-Officio Justice of Peace, Narowal dismissed the application filed under Section 22-A & 22-B Cr.P.C, by the petitioner for registration of case against the proposed accused.

2. Precisely, the petitioner had moved an application under section 22-A & 22-B Cr.P.C. for registration of criminal case against respondents No.3 to 6 before the learned ex-Officio Justice of Peace, Narowal, contending therein that proposed accused in collusion with each other have prepared a bogus power of attorney on behalf of the petitioner and agreement to sell on stamp paper by putting the fake signature/thumb impression of the petitioner to usurp his property.

Incident was immediately reported to the concerned Police Station by moving written application for registration of the FIR, but no action was taken, however, no fruitful result could be achieved.

3. The petitioner then approached the Ex-Officio Justice of Peace/Additional Sessions Judge, Narowal by filing petition under sections 22-A and 22-B, Cr.P.C for issuance of direction to the concerned SHO to lodge FIR against the private respondents. The learned Ex-Officio Justice of Peace/Additional Sessions Judge, Narowal, after hearing learned counsel for the parties, declined the prayer of the petitioner with regard to lodging the FIR.

4. The learned counsel for the petitioner, inter alia contends that with regard to criminal offence, Station House Officer (SHO) of concerned police station is bound to record the statement of the petitioner. He has further contended that documentary evidence is available with Ex-Officio Peace of Justice but the learned Ex-Officio Justice of Peace erroneously declined prayer of the petitioner for lodgment of the FIR on the premise that the matter is of civil nature which is hardly a ground to refuse the relief sought by the petitioner, even otherwise; it was a good case for issuance of direction to the concerned SHO for recording the statement of the petitioner. He has further contended that the order of learned Ex-Officio Justice of Peace is illegal and without legal justification. He further argued that the learned ex-Officio Justice of Peace has failed to appreciate that the provisions of Section 195(1)(c) Cr.P.C. are not applicable to the subject case because the cause of action for proceeding against the forger arose immediately when the offence of forgery as defined under section 463 PPC was committed. He has lastly contended that the petitioner has prima facie made out a case of cognizable offence, as such; the SHO concerned cannot refuse to register FIR who is duty bound under section 154, Cr.P.C. to record the statement of the petitioner.

5. Learned AAG, on Court's call, accepts notice and has opposed the instant application and contended that petitioner has alternate remedy available under the law i.e. the Private Complaint to be filed before the competent court of law.

6. Heard and perused the record.

7. It has been gathered from the record that proposed accused/respondent No.3 had instituted a civil suit for specific performance of agreement to sell titled Aftab Ahmad Vs. Khushi Muhammad, etc. on the basis of agreement to sell which is subject matter of instant petition and the said suit was decreed vide judgment and decree dated 02.04.2022 and sultani bainama on the basis of said judgment and decree has been executed in favour of the decree holder/respondent No.3. Though the petitioner has challenged the aforesaid judgment and decree dated 02.04.2022 by way of filing application under section 12(2) CPC before the concerned civil Court but the said judgment and decree is still holds field, thus, genuineness or otherwise of the said document/agreement to sell would be validly determined by the learned civil Court, after adducing evidence of the parties.

Admittedly, it seems that the matter between the parties is of civil nature. In the case reported as Jamal Khan vs. Secretary Home Department (2021 SCMR 468), the Honourable Supreme Court, in a matter involving civil dispute, refused to interfere in the findings whereby registration of a criminal case was declined.

8. Needless to mention here that when the FIR is refused to be registered by the police then other remedies are available for the aggrieved party; firstly, by approaching the Sessions Judge/Ex- Officio Justice of Peace, for exercising of power U/s 22-A (6) Cr.PC; secondly, by approaching the Magistrate for exercising of power under section 156 (3) Cr.PC; and lastly, by filing a direct complaint U/S 200 Cr.PC. Allegedly, the petitioner in the first instance approached the concerned SHO for registration of the FIR but he was refused, thereafter the petitioner has availed the second remedy of filing application U/S 22-A & 22-B Cr.PC before Ex-Officio Justice of Peace/Sessions Judge, where his application was dismissed. Thereafter the petitioner has not availed two other remedies available for him for redressal of his grievance. In such circumstances, invoking of writ jurisdiction in the presence of adequate remedy being available is not desirement of law. Reliance can be placed on the Case of Ghulam Ali alias Sadoro and others v. S.H.O., Police Station Veehar, District Larkana and others (2003 YLR 2168).

9. It has been held in "Muhammad Shafi vs. Deputy Superintendent of Police etc" (PLD 1992 Lahore 178) that provisions of S. 195 (1)(c), Cr. P.C, as regards offences described in S.463, PPC or offences punishable under S. 475 PPC or S. 476 PPC, apply to a document which is produced or given in evidence in a suit or in any other proceedings in a court but not those documents which had been forged before the institution of the suit or proceedings. In the case in hand, alleged forged agreement to sell was used by the proposed accused in a civil suit for specific performance of agreement to sell, which was admittedly decreed vide judgment and decree dated 02.04.2022, against which application under section 12(2) CPC of the petitioner is pending but the operation of the judgment and decree has not been suspended. Moreover, criminal Court is barred to take cognizable of the matter relating to civil agreement which is already under challenge before the civil Court. It is well settled law that where the ultimate criminal liability depends on the fate of civil lis, the criminal proceedings or, by operation of law, required to be stopped; reliance is placed upon case reported as Akhlaq Hussain Kayani Vs. Zafar Iqbal Kayani and others (2010 SCMR 1835).

10. I am of the view that if the controversy between the parties is decided solely on the grounds mentioned above, it is likely to give rise to multiplicity of the litigation. So in this view of the matter, it would be appropriate to settle the dispute finally. The provision of section 476 Cr.P.C. is enacted with an object to ensure that the course of justice must not become polluted with impurities.

Through this provision, a procedure is provided to check certain offences, affecting the administration of justice. To be more precise, it provides a procedure of trial relating to certain classes of offences mentioned in section 195 (1) Clause (b) or (c) of Cr.P.C., if committed in relation to a proceeding in any Civil, Revenue or Criminal Court. However, before proceeding under section 476 Cr.P.C, the Courts are obliged to see that from the contents of the complaint, if presented, some offence mentioned in section 195(1)(b)(c) of Cr.P.C. is made out. Proceedings under section 476 Cr.P.C ought not to be used by the litigants as a tool to wreak private vengeance, to satisfy personal grudge or for settling the personal score. Similarly, a process is not to be issued under section 476 Cr.P.C. as a matter of routine on each and every application moved by a litigant. The court concerned is required to examine the material which is being placed before him and then to see that whether it gives rise to any of the offences, mentioned in the relevant clauses of section 195(1) of Cr.P.C. or not. While observing so, this Court is guided by the judgment of Hon'ble Supreme Court of Pakistan reported as Ch. Feroze Din v. Dr. K.M Munir and another (1970 SCMR 10).

11. In view of above, I found no legal infirmity, irregularity or jurisdictional error in the order dated 11.11.2022. Therefore, this petition, having no force, is dismissed in limine. However, the petitioner is at liberty to avail alternate remedy, available under the law, if so desires.