2009 PLP 1646 (YLR)

S. ALI HASSAN RIZVI, J.

Naveed Ahmad petitioner had filed an application under sections 22-A and 22-B, Cr.P.C. before the Court of Session, Gujranwala on 19-7-2008 praying that C.P.O., Gujranwala (not party to the writ petition) and S.H.O. Police Station Sadar, Kamonki, District Gujranwala, be directed to register a criminal case under sections 420/468/471/109 P.P.C. against Muhammad Ismail, Muhammad Bashir and Amanat Ali, respondents Nos. 2 to 4 herein.

2. Mr. Muhammad Amjad Ali Khan, learned Additional Sessions Judge in his capacity of Justice of Peace after taking comments from S.H.O. concerned, dismissed the relevant application on 5-11-2009 observing that a criminal case F.I.R. No.343/08 dated 24-7-2008 under sections 447/337-H(ii)/427/148/149 P.P.C. had already been registered against the said respondents and the allegations of fraud were already in the notice of the petitioner but that the same were not added.

3. Learned counsel for the petitioner contended that the complaint submitted by him before the learned Justice of Peace disclosed Commission of a cognizable offence and that his application was unduly dismissed. Learned counsel explained that F.I.R. No.343/08 was got registered by Muhammad Irshad brother-in-law (Sala) of the petitioner and there was no warrant for holding that he should have alleged the offence of fraud and forgery in the aforesaid F.I.R.

4. The case of the petitioner before the learned Justice of Peace was that he had sold his share in a house measuring 13 Marlas situate in Tibba Muhammad Nagar Kamonki, District Gujranwala in favour of one Muhammad Irshad son of Talib Hussain vide Mutation No. 40125 dated 21-5-2008. It was this Muhammad Irshad who was complainant of F.I.R. No.343/08. He lives with the present petitioner in one of the same village. The said case was got registered by him against the same respondents Nos. 2 to 4.

5. The allegations as levelled by the petitioner is that Muhammad Ismail (respondent No.2) had with the collusion of Muhammad Bashir and Amanat Ali respondents Nos.3 and 4 herein prepared a bogus agreement to sell by showing receipt of earnest money for which a criminal case was to be registered. The petitioner has not submitted a copy of the alleged bogus agreement to sell. Before the learned Justice of Peace, CPO, Gujranwala was arrayed as respondent No.1. However, in the present writ petition, he was left out. In the written comments submitted by S.H.O. Police Station Sadar Kamonki (respondent No.1 herein), it was specifically mentioned that Muhammad Ismail had filed a civil suit against the present petitioner Naveed Ahmad, claiming specific performance of the aforesaid agreement. This fact was not denied by on behalf of the petitioner. Rather in para. 3 of the application moved by the petitioner under sections 22-A/22-B, Cr.P.C. it was noted that the agreement of sale showed a total consideration of Rs.10,75,000 and Rs.5,75,000 were shown to have been paid as earnest money. It was also stated in the same para that Rs.3,00,000 were shown to have been paid as per writing on the back side of the agreement of sale. Shocking disparity of the consideration amount was obvious because the same house was shown to have been sold in favour of Muhammad Irshad Sala of the petitioner, only for Rs.1,00,

000. The comparative rights of Muhammad Irshad vis-a-vis Muhammad Ismail would come for serious consideration before the civil Court in terms of section 27(b)(c) of the Specific Relief Act, 1877. That being so, it should better be left to learned civil Court seized of the suit for specific performance to determine the validity or otherwise, of the said agreement. The petitioner should defend the suit and if findings are returned by the competent civil Court that the agreement claimed by Muhammad Ismail (respondent No.2) was the result of fraud and forgery, he could a fortiori bring criminal action. Presently, he should not be restive and better wait.

6. On the present showings, I am not satisfied that issuance of a direction at this stage for registration of case would be in quest of justice. I, therefore, dismiss the writ petition. H.B.T./N-35/L Petition dismissed.