AMEER Versus STATION HOUSE OFFICER, POLICE STATION, JHANG

Oral sale of agricultural land measuring 80 Kanals and 7 Marlas situate in village Bagri, Tehsil and District Jhang, for a consideration of Rs.16,000 is evidenced by a report, dated 27‑8‑1980 in Roznamcha Waqiati by Mst. Bakhan daughter of Saban, Nusrat, Mst. Bakhan widow of Lal, Jewana, Mst. Sammoo and Mst. Moondan in favour of the petitioners. Mutation No. 917 in respect of this sale was also attested by A.C. II on 23‑11‑1974. Similarly, another oral sale of land measuring 26 Kanals and 14 Marlas for a consideration of Rs.6,000 situate in the same village by Shahmand, Noor and Sher Muhammad in favour of the petitioners is incorporated in Roznamcha Waqiati, dated 4‑10‑1970. The sale was attested through Mutation No. 918, dated 23‑11‑1974. These mutations purport to have been incorporated in Jamabandi for the year 1984, pursuant to an order passed by the Additional Deputy Commissioner, Jhang. It, however, appears that in early 1987, the vendors and the heirs of the deceased vendors contested the genuineness of the aforementioned sales and, therefore, on 28‑1‑1987, the petitioners filed two declaratory suits before a learned Civil Judge, Jhang. The defendants filed their written statements on 13‑5‑1987.

2. Subsequently, however, one of the vendors, namely, Jeewana submitted an application before the D.S.P. Jhang. After some enquiry a case has been registered by respondent No.1 viz. The S.H.O. Police Station Kotwali District Jhang, at the said police station against the petitioners and others under section 420/468/471, P.P.C. and section 5 of the Prevention of Corruption Act (II of 1947). The petitioners, have, therefore, filed the present constitutional petition assailing the action of respondents Nos. 1 and 2 namely. S.H.O. Police Station Kotwali, District Jhang and the D.S.P. District Jhang, whereby they have registered the criminal case against the petitioners and others.

3. It has been contended that the criminal case has been registered on the allegations that the aforementioned mutations was forged and fake ones, whereas the petitioners have already filed declaratory suits before the Court of general jurisdiction to seek a declaration that the said mutations were genuine and were of binding nature. In the circumstances, the alleged criminal liability of the petitioners is dependent upon the result of civil litigation and there is a danger of grave injustice being done in the case if there is a conflict of decision between the civil Court and the criminal Court. It has, therefore, been urged that criminal action should be stayed until the civil litigation is closed up. It has further been contended that the alleged forged and fabricated documents i.e. Mutations Nos. 917 and 918 are already before the civil Court and, therefore, by virtue of the provisions of section 195(1)(c), Cr.P.C. no Court could legally take cognizance of an offence which is alleged to have been committed by a party to the proceedings before the civil Court in respect of the aforementioned documents except on the complaint in writing of the learned civil Court.

4. Through an unreported judgment, dated 10‑11‑1986, passed by this Court in Criminal Miscellaneous No. 132/Q of 1986; in re: Haji Dilmir Khan etc. v. The State, it was held that where the dispute between the parties was purely of civil nature, criminal case was malicious prosecution and such proceedings could not be permitted to continue. Consequently the F.I.R. was quashed. Similar view was expressed by this Court in another unreported judgment, dated 8‑6‑1987, in Criminal Miscellaneous No. 327/Q of 1986, in re: Faqir Muhammad v. The State.

In Dr. Abdul Aziz v. Anwar Khan and 2 others 1984 PCr.LJ 1340 in case of a complaint under section 419/420/467/468/471, P.P.C. it was alleged that the offences were committed during the proceedings before a civil Court. It was held that cognizance of such offences could only be taken by a complaint in writing of the Court concerned. In Nusrat Hussain and others v. The State 1986 P Cr. L J 1218, the accused was alleged to have prepared a forged agreement relating to sale of shop of complainant. The accused had already filed a civil suit before filing the complaint wherein he had placed reliance on the sale agreement which was thus the subject‑matter of dispute in both the cases and the same was already produced in the civil Court. It was held that section 195(1)(c), Cr.P.C. was attracted to the case, and the entertainment of complaint was barred except at the instance of the Court in which the civil suit was pending. In Hirshikesh Dutta v. The State 1969 P Cr. L J 241 it was ruled that if the offence was alleged to have been committed by a party to the proceedings before the civil Court in respect of a document produced in such proceedings, then provisions of section 195(1)(c), Cr.P.C. were attracted. In Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind and Baluchistan and another P L D 1971 SC 677, it was ruled by the Supreme Court of Pakistan that investigation if mala fide or beyond the jurisdiction of investigation agency, recourse could be had to Article 98 of the Constitution of Islamic Republic of Pakistan 1962. Needless to add that the provisions of Article 98 of 1962 Constitution were analogous to those of Article 199 of the Constitution of Islamic Republic of Pakistan 1973. In Muhammad Akbar v. The State and another P L D 1968 SC 281, it was observed:‑

"Normally criminal proceedings should not be postponed pending the disposal of civil litigation connected with the same subject‑matter. But where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustice being done in the case if there be a conflict of decision between the civil Court and the criminal Court then in such event it is equally clear that the criminal Court has not only the right to but should also stay its hands until the civil litigation is disposed of, for, it is not desirable that when the title to the property itself is in dispute, the criminal Courts should give a finding in respect of the same question. This was not a case in which the criminal litigation was being stayed by an order of the civil Court, but this was a case where the High Court, exercising the inherent criminal jurisdiction under section 561‑A of the Code of Criminal Procedure, has in the interests of justice ordered the stay of the criminal proceedings. It could not be said that it had no jurisdiction to do so."

5. Reliance on behalf of the respondents has been placed on Syed Muhammad Ahmad v. The State 1972 S C M R 85, wherein it was held that there was no invariable rule that criminal proceedings be postponed pending disposal of civil litigation. It is, however, noteworthy that in this case, the civil suit was filed long after the start of criminal prosecution. In Nazir Ahmad and others v. Muhammad Shafi and another P L D 1980 SC 5, it was ruled that provisions of section 561‑A, Cr.P.C. could not be invoked for quashment or stoppage of police investigation. It is noteworthy that the under consideration petition is, in fact, a constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 and is not an application under section 561‑A, Cr.P.C. In Akhtar Hussain Zaidi v. The State P L D 1985 Lah. 662, it was held that quashment of proceedings under section 561‑A, Cr.P.C. at an early stage gives an unfortunate impression of stifling of criminal prosecution, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. As already observed, the present petition is not under section 561‑A, Cr.P.C. Therefore, the authority relied upon by the learned counsel for the respondents has little relevancy to the facts of the present case.

6. As already noticed in the circumstances of the present case, the genuineness or otherwise of the two sale mutations is already sub judice before the civil Court.

Subsequently on the application of respondent No.3, respondents Nos. 1 and 2 have registered the criminal case on the accusation that the sale mutations in question were forged and fabricated ones. Cognizance of such a criminal case is not only barred under section 195(1)(c), Cr.P.C., but the very registration of criminal case is mala fide and unwarranted. Such a mala fide action cannot be allowed to perpetuate and continue.

7. For the foregoing reasons, this writ petition is allowed and the impugned registration of the criminal case against the petitioners is declared to be without lawful authority and of no legal effect. There shall be no order as to costs.

S.A./A‑384/L ?????????????????????????????????????????????????????????????????????????? Writ Issued/F.I.R. quashed.