1994 P Cr (PLP)

Rana Muhammad Arif, AA.-G. for Respondents. Date of hearing: 10th November, 1993. In this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, a direction is sought from this Court to Senior Superintendent of Police; Jhang, Deputy Superintendent of Police Chiniot and Station House Officer Police Station Sadar Chiniot to register a criminal case against Haji Safdar Hussain for the "forgery of the receipt of Rs.5,00,000 committing fraud/cheating and using a forged document as genuine document knowing it to be forged and to proceed against him according to law." Said Haji Safdar Hussain was ordered to be impleaded as respondent No.5 vide order dated 23-12-1992 in C.M. No.2176 of 1992.

2. The brief facts leading to the institution of the present petition are that the petitioner claims to be purchaser of land measuring 654 Kanals and 2 Marlas in Mauza Kakka Tibba, Rajoa, Tehsil Chiniot, District Jhang, alongwith his son, Zulfiqar Ahmed, through a registered sale-deed from Haj~ Safdar Hussain, respondent No.5 herein. The possession of the said land was delivered to him and some time thereafter respondent No.5 is alleged to have taken illegal possession of 20 acres of the land in dispute, with intervals. All efforts on the part of the petitioner to impress upon the said vendor to deliver back the possession of the afore referred parcel of land to him met with failure. Instead of complying with the lawful and justified demand of the petitioner, the said respondent proceeded with destruction of the standing crops of petitioner, on rest of the land. The petitioner was coerced into re-sale of the land to him and an agreement dated 15-4-1990 was executed between them, on the said date. According to the terms of the agreement earnest money of Rs.14,00,000 was to be paid by Haji Safdar Hussain. He paid only Rs.6,50,000 on various dates prior to 15-5-1990 and it was on the later date that he made the payment of a sum of Rs.2,50,000 to the petitioner. The rest of the amount totalling Rs.5,00,00 was to be paid by 1-1-1991. On failure on the part of respondent No.5 to make the payment of Rs.5,00,000 by 1-1-1991 in terms of the agreement, he was served with a notice by the petitioner through his Advocate on 5-1-1991. Thereafter, he (Haji Safdar Hussain) forged a receipt for the said amount of Rs.5,00,000 and filed a suit for specific performance of the purported agreement dated 15-4-1990, in the Civil Court at Chiniot. The case of the petitioner is that on coming to know about the forgery committed by Haji Safdar Hussain he moved an application to D.I.-G., Faisalabad seeking registration of the case against him: The application was marked on 5-11-1992 to respondent No.2/S.S.P.; Jhang with a direction for an inquiry into the cause to be conducted by D.S.P. Chiniot/respondent No.3. On the failure on the, part respondents Nos.2 to 4 to comply with the direction of D.I.-G. Police, 6salabad, dated 5-11-1992, he filed the present petition on 2-12-1992. The allegations that the respondent-police officials had concluded that a cognisable offence had been committed but still preceded with obtaining legal opinion from the concerned quarters and after receipt of the opinion from D.S.P. (Legal) Jhang to the effect that as civil litigation is pending between the parties regarding the very document which is alleged, by the petitioner, to have been forged, there is no need for registration of the case as embargo under section 195, Cr.P.C. is attracted here, were put to the official respondents who had reiterated the very contents of the opinion expressed by the Deputy Superintendent bf Police (Legal), Jhang dated 27-1-1993, which reads as under:-- The enclosed papers have been gone into and considered on legal footing. In these papers request has been made for legal guidance in the light of a detailed report submitted by S.H.O. Sadar Chiniot. It is alleged that the person complained (against) made false document for the purpose of cheating and used the same as genuine knowing to be forged one. There is a dispute of land pending in civil Courts in which the same document alleged to have been forged forms the subject-matter of civil litigation. Although on the face value and without, going into the merits of charges it can be safely remarked that commission of offences punishable under sections 463/465/471, P.P.C. is made out, yet legal action may not be initiated in view of the embargo laid down, in section 195, Cr.P.C. However, the trial Court may send complaint .by taking due cognizance .of the same on which criminal action can be initiated by police, if warranted at all. D.S.P./Chiniot may himself look into the matter and report in compliance with the orders dated 5-11-1992 passed by D.I.-G./F:R. Faisalabad on the application. The matter may be expedited to avoid further delay. The papers are disposed of with the above deservations.

3. Sh. Zia Ullah; learned counsel for the petitioner has reiterated the contention raised on behalf of the petitioner at the time of admission of this petition to regular hearing that clause (c) of subsection (1) of section 195, Cr.P.C. was not attracted as the forgery had been committed before the institution of the suit and argued that the question involved here was also subject-matter of Full Bench decision of this Court in Muhammad Shat v. .Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others P L D 1992 Lah.

178. Thereafter, the opinion of Deputy Superintendent of Police (Legal) Jhang is deficient in law in that even according to the ratio in the said precedent the document which was forged prior to the institution/commencement of civil litigation cannot be considered to have been forged by respondent No.5 to attract the embargo and, therefore, the failure on the part of the respondent-police officials to comply with the mandate in section 154, Cr.P.C. is justiciable in this Court. He has further submitted that case of Sanmukhsing and another v. The King P L D 1949 PC 207 is squarely attracted to this case as even here only copy of the forged document has been appended by respondent No.5 with his plaint in suit for specific performance. The respondent-authorities have rendered themselves liable to be mandated for the registration of case.

4. The arguments addressed by the learned counsel for the petitioner have not been controverted by the learned Law Officer who was also of the view that both the precedents, i.e., the cases of Muhammad Shaft and Sanmukhsing and another (supra) are attracted to the instant case.

5. I have considered the plea raised in this case by the learned counsel for the petitioner. I am inclined to the view that in the facts and circumstances of the instant case the respondent-S.H.O. was not within his statutory right to refuse the registration of a criminal case when its commission was alleged by the petitioner to lay such information in writing through application before the Senior Police Officers soon after coming to know about the commission of forgery by respondent No.5 in the matter of the receipt of Rs.5,00,000 from him. Neither the. Deputy Superintendent of Police (Legal) Jhang was possessed of any authority/jurisdiction to opine on the method/manner of registration of a criminal case by the S.H.O. concerned nor even his opinion is supported by any precedent. The case of Sanmukhsing (supra) is on all fours with the facts of the instant case. The observation made by this Court in Muhammad Shaft's case (supra) also advances the case of the petitioner. The failure on the part of the respondent S.H.O. to register the case cannot but be held to be beyond his statutory duty. The same is declared, as such. Resultantly, he is directed to proceed with the registration of the case and to conduct the investigation of the same under Police Rules, 1934. As respondent No.5 has not entered appearance today and as the State has not contested the case of the petitioner, there shall be no order as to costs. N.H.Q./S-390/L Petition allowed.