MUHAMMAD YAQUB vs S.H.O., And Other

Briefly facts of the writ petition are that the petitioner agreed to purchase land owned by the respondent No.2 and his brother measuring 21 Kanals, 8 Marlas situated in the area of Village Kot Pindi Das, Tehsil Ferozewala, District Sheikhupura vide agreement to sell dated 17-5-1992 and payment of Rs.1,50,000 was made to respondent No.2 and his brother; only Rs.10,000 balance was to be paid from the total consideration at the time of execution of the sale-deed. The details of land could not be written at the time of the execution of the sale-deed as alleged in the petition; due to non-availability of copy of Jamabandi. The agreement to sell was thumb-marked by the respondent No.2 and his brother in the presence of marginal witnesses. Further General Power of Attorney was also executed in favour of the petitioner by them.

2. The land in dispute stands acquired by the Lahore-Islamabad Motorway concerned authorities and the value of the disputed land as alleged has been increased; due to which the respondent No.2 and his brother did not get registered the sale-deed in favour of the petitioner in spite of repeated requests.

3. The petitioner, resultantly, filed a civil suit for specific performance of the agreement to sell, dated 17-5-1992 on 9-9-1993 against the respondent No.2 and his brother which is pending before the competent Court at Lahore and stay order by the learned Civil Judge has been granted in favour of the petitioner on 12-9-1993.

4. As alleged in counterblast the respondent No.2 and his brother Bashir Ahmad filed a suit for permanent injunction against the petitioner and 3 others; which was dismissed on 23-6-1994. The respondent No.2 and his brother have filed another suit for declaration to the effect that the agreement to sell dated 17-5-1992 is result of fraud and misrepresentation on 7-9-1993; which is pending for adjudication in the Court of learned Civil Judge.

5. The respondent No.2 on 27-12-1994 got registered a case F.I.R. No.666 of 1994 under the offence of section 420/468/471, P.P.C. Against the petitioner with Police Station Factory Area, District Sheikhupura; hence the writ petition for quashment of the said F.I.R. And criminal proceedings against the petitioner.

6. I have heard the arguments of the learned counsel for the petitioner and the learned counsel for the State as well as have examined the record with their able assistance.

7. Admittedly the civil litigation in regard of the agreement to sell dated 17-5-1992 i.e., the specific performance of the contract and the cancellation of the agreement is pending between the petitioner and the respondent No.2 and his brother. Admittedly the allegation against the petitioner in F.I.R. Are same as are alleged in the civil suit by the respondent No.2 and his brother.

8. The contention of the learned counsel for the petitioner that the agreement to sell has been produced in the civil litigation before the learned Civil Judge; the registration of the case in the circumstances is in violation of section 195(1)(c) of Cr.P.C. Carries weight.

9. The section 195(1)(c), Cr.P.C. Is reproduced as under:--- "Section 195(1). No Court shall take congnizance---

(c) of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceedings in any Court in respect of a document produced or given in evidence in such proceedings, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate."

10. It is apparent from the section that section 195(1)(c) read with sections 475 and 476, Cr.P.C. No Court shall take cognizance of an offence committed in relation to document which was produced before a Court in the course of judicial proceedings; it was held in case Rahim Bakhsh v. The State PLD 1983 Lah. 397 that the offence covered by section 195, Cr.P.C. Could not be tried by a Magistrate except on a complaint in writing made by the Court concerned. In the background of the case in hand; while the agreement to sell has been produced before the competent Court and case for declaration to the effect that the agreement to sell dated 17-5-1992 is result of fraud and misrepresentation by the petitioner is pending for adjudication; there is no jurisdiction with therespondent No.1 S.H.O. To register the case or any Magistrate to take cognizance of the offence unless the provisions of sections 195 and 476, Cr.P.C. Are complied with as the said provisions are mandatory in nature. The registration of F.I.R.; itself, investigation of the case and submission of challan if any; would be hit by the prohibition contained in the sections 195 and 476, Cr.P.C. And such proceedings amounts to an abuse of the process of law; even otherwise a person cannot be vexed twice on two separate proceedings on the same cause of action or subject-matter, otherwise the mandatory provisions of the sections 195 and 476, Cr. P. C. Would become redundant.

11. The learned counsel for the respondents vehemently argued that it has often been stressed by superior Courts that the police investigation in the crime would not be interfered or sifted by superior Courts in extraordinary jurisdiction either under section 561-A, Cr.P.C. Or under writ jurisdiction and relied upon well-known cases Shahnaz Begum v. The Hon'ble Judges of the High Courts of Sindh and Baluchistan and another PLD 1971 SC 677; Muhammad A.I and 12 others v.

District Magistrate, Faisalabad and 3 others PLD 1978 Lah. 1325.

12. The law laid down in the above cases by their Lordships is not applicable to the facts of the case in hand. With the passage of time; now it is well-settled principle of law that the High Court is not denuded of its powers to quash the proceedings if it is satisfied from the material produced before it that the prosecution has been launched for improper motive, merely to harass the accused, or that its continuance would be an abuse of the process of the Court or for other reasons which impel the Court to conclude that it would not be in the ends of justice to allow the prosecution to continue. As already noticed in the circumstances of the present case; the genuineness or otherwise of the agreement to sell is already sub judice before the Civil Court. Subsequently, registration of case on the complaint of respondent No.2 on the accusation that the agreement to sell dated 17-5-1992 in question before the competent Civil Court is forged and fabricated one; cognizance of such a criminal case is not only barred under section 195(1)(c), Cr.P.C. But the very registration of F.I.R. Against the petitioner is mala fide and unwarranted and such a mala fide action cannot be allowed to perpetuate and continue as held in case Ameer and others v Station House Officer, Police Station, Jhang and others 1988 PCr.LJ 2032.

13. I am, therefore, of the view that the registration of F.I.R. No.666 of 1994, dated 27-12-1994 by the police in respect of the same matter which is being examined by the learned Civil Judge, before whom the civil litigation of both the parties is pending; would amount to abuse of the process of the Court. Resultantly the petition is allowed and the proceedings initiated vide the aforementioned F.I.R. Are quashed.