BASHIR AHMED and anothers vs FAZLE GHAFFAR and 2 others

Haji Fazal Ghaffar and his four brothers of Charbagh, District Swat brought a suit for declaration based on title, permanent injunction and possession, against Muhammad Farid Khan and others before the learned Civil Judge, Swat. During pendency of the suit, an application for impleadment was filed by or on behalf of Mst. Saihoon and Mst. Jaihoon daughters of Abdul Karim who, finally were impleaded as defendants through an amended plaint filed by Haji Fazal Ghaffar etc.

2. The suit was pending when it struck the plaintiffs that Bashir Ahmed son of Ghani Rehman claiming to be the special attorney of the ladies aforesaid, was not a validly appointed attorney and that the power of attorney on behalf of the ladies was a fictitious and forged document. They did not agitate this matter before a Civil Court but instead filed a complaint under section 200, Cr.P.C. Charging Bashir Ahmed and another Bakht Karam under section 419/420/468/471/34, P.P.C.

3. The learned Magistrate vide his order, dated 19-3-1998 categorically observed that the complaint was not maintainable but still continued the proceedings astonishingly under the advice of the P.D.S.P. Which the Court sought unnecessarily. During such criminal proceedings the two ladies were examined, first through Local Commissioner and for the second time in Court. Bashir Ahmed has come up for the quashment of such criminal proceedings under section 561-A, Cr.P.C.

4. It is a matter of common knowledge that if some forgery is committed during the pendency of a suit, the party aggrieved does have a two-fold remedy; one in the civil Court and the other in the criminal Court. But it is also a settled principle of law that any such thing arising in a civil Court should first be settled in that Court and if such civil Court eventually affirms the commission of forgery, it may be agitated before a criminal Court as well. In case this procedure is not followed, the criminal Court would be called upon to adjudicate upon a document which is or which ought to have been the subject-matter of a civil suit. Moreover, it is likely to cause harassment to the opposite party which might not be able to pursue its civil litigation, under the influence of a criminal course followed side by side.

5. In view of such state of affairs, the possibility of forgery can also be not excluded at this stage which is premature and hence the quashment would not serve the ends of justice because the proceedings as such are not void either. The better course for the plaintiffs in the civil suit would be to file a replication to the written statement wherein they may challenge the power of attorney given by Mst. Saihoon and Mst. Jaihoon in favour of Bashir Ahmed, the petitioner. The Court would then frame an issue to that effect and would give its decision alongwith other issues in the suit.

6. Consequently, the petition is partially accepted with direction to the plaintiffs of the civil suit to file replication whereupon the trial Court shall frame an issue/additional issue and thereafter proceed in accordance with law. The criminal proceedings initiated through complaint under section 200, Cr.P.C. Shall remain pending till the civil suit is finally decided. Parties are directed to appear before the trial Court on 30-3-2000.