1998 PLP 686 (MLD)

2. The brief facts of the case are that land measuring 5 Kanals and 11 Marlas situated in revenue estate of village Halloki, Tehsil Cantt., District Lahore which was allotted to one Riaz Ahmed under the Displaced Persons (Land Settlement) Act, 1958, was purchased by Ghulam Muhammad in the year 1964 by means of a registered sale-deed. One Kathu also claimed purchase of the said land from Ghulam Muhammad through Abdul Majid his general attorney but the case of Ghulam Muhammad was that he never sold the land to Kathu and he continued to be its owner. Upon this, Kathu filed a suit in the Civil Court at Lahore seeking a declaration that he was the owner of the disputed property and aforesaid Ghulam Muhammad be restrained from interfering with his proprietary rights. In the course of this litigation Kathu got stay order from the Civil Court on 12-9-1980 and during the subsistence of the stay order, allegedly, respondent No. 2 purchased the land from Kathu on 23-3-1989. However, the suit of Kathu against Ghulam Muhammad was dismissed for non-prosecution on 1-2-1990.

3. According to the petitioner, as the land in dispute remained in the ownership of Ghulam Muhammad, he appointed the present petitioner as his general attorney who further sold this land to respondent No. l for a consideration of Rs. 85,000 by means of a registered sale-deed dated 16-8-1990 and in the sale-deed, inflated price was shown to avoid the pre-emotion suit. As per averments made in the writ petition, one Ahmed Din also filed a suit against Ghulam Muhammad, respondent No. 1 seeking a declaration to the effect that he is owner of the disputed land and Ghulam Muhammad was not entitled to sell the land to the present petitioner. Both Ghulam Muhammad and the present writ petitioner jointly filed the written statement.

4. During the pendency of the civil suit, the petitioner was served with a notice dated 25-2-1992 to the effect that the sale of land made by him being general attorney of Ghulam Muhammad was illegal and claimed refund of Rs. 2,00,

000. The petitioner replied to the notice and showed his willingness to refund the actual price of Rs. 85,

000. As the civil suit between the parties remained pending, respondent No. 1 moved an application before the Sub -Registrar, Lahore Cantt. with the prayer that a case may be got registered against the present petitioner as he knowingly deceived him and extorted Rs. 2,00,000 by selling the land which already stood sold to Ahmed Din son of Chiragh Din vide sale deed dated 23-3-1989. Apprehending registration of the case, the petitioner filed the present Constitutional petition.

5. Learned counsel for the petitioner contended that it is an undisputed fact that Ghulam Muhammad was owner of the land and the petitioner being the general attorney, sold the same to respondent No.

1. As the ownership of Ghulam Muhammad is not disputed and there are no finding of any competent Court that Ghulam Muhammad is a non-existent person or the power of attorney which he gave to the petitioner was procured fraudulently- and defrauded respondent No. 1 and further during the pendency of the civil suit, respondent No. 1 had no authority to move the Sub-Registrar for the registration of a criminal case. The matter being purely of civil nature, the request of respondent No. 1 should be accepted only after the decision of the civil suit. A legal objection was also taken by learned counsel for the petitioner that as the dispute between the parties regarding cancellation of the sale-deed in favour of respondent No. 1 allegedly executed by the petitioner as a general attorney of Ghulam Muhammad is sub judice before the Civil Court, in view of the provisions of section 476, Cr.P.C. it is only the learned Civil Court which would be competent to proceed against the petitioner and during the pendency of the civil suit, the Police is debarred from registering a criminal case. Learned counsel for the petitioner relied or PLD 1978 Lahore 1410.

6. Learned counsel for respondent No. 1 submitted that as the petitioner had already sold the disputed land to one Ahmed Din son of Chiragh Din vide sale-deed dated 23-3-1989, the sale made in favour of respondent No. 1 being general attorney of Ghulam Muhammad constitutes offences under sections 463/471 and 420, P.P.C., and the police was competent to register a criminal case and proceed with the matter. Further submitted, that as whole of the transaction was fraudulent and dishonest as the property was not in the name of Ghulam Muhammad at the time of sale, respondent No. 1 was competent to move the Sub-Registrar before whom the forged power of attorney and the illegal registered sale-deed was effected. The Police is duty bound to register a case when commission of a cognizable offence is disclosed. Placed reliance on NLR 1983 (Cr) 55 and PLD 1992 Lahore 178.

7. Respondent No. 2 S.H.O., Police Station North Cantt has also re iterated the story, put by respondent No. 1.

8. I have heard learned counsel for the parties and have examined their respective submissions.

9. From the documents placed on record the sale of land measuring 5 Kanals and 11 Marlas by the present petitioner being the general attorney of Ghulam Muhammad son of Dad vide sale-deed dated 13-8-1990 registered on 16-8-1990 is proved. It is also proved from the Revenue Record (annexure R/5-1) that the disputed land was in the name of Ghulam Muhammad son of Dad which was sold by the petitioner as his general attorney. The matter regarding title of the disputed property is pending in the Civil Court and presently there is no evidence on record whether the petitioner committed any fraud as the title of Ghulam Muhammad is not denied. In the civil suit, filed by Ahmed Din, the alleged transferee of the land from Kathu, the petitioner filed the written statement taking a preliminary objection that the suit of Kathu against Ghulam Muhammad was dismissed under Order IX, rule 8, C.P.C. and Ahmed Din being his predecessor could not file the suit on the same cause of action. The petitioner in the course of hearing has placed on record a photo copy of the cancellation deed (IBTAAL NAAMA) dated 30-11-1993 executed by Ghulam Muhammad son of Dad cancelling his general power of attorney which he gave to the petitioner on 22-8-1990. Mazhar Ali son of Faqir Muhammad (NIC No. 449-30-103408) and Master Muhammad Ismail son of Jamal Muhammad (NIC No. 450-49-075179) are the witnesses of the Ibtalnama while the thumb-impression and the signature of Ghulam Muhammad was attested by Mr. Shahid Hussain, Advocate and Ghulam Muhammad was identified by Maroof Hussain Shah son of Syed Hamid Ali Shah having NIC No. 278-48 404681 before the Sub-Registrar Lahore Cantt. which proves that Ghulam Muhammad was in existence on 1-12-1993. In reply to the notice issued by the respondent No. 1 the petitioner offered to pay Rs. 85,000.

10. As long as this fact is not established that the transaction entered into by the petitioner as general attorney of Ghulam Muhammad was fake or fabricated one, no case can be registered with the Police till the pendency of the civil suit. It would, therefore, be for the Civil Court if it comes to the conclusion that the petitioner fabricated the document or sold the land in question to respondent No. 1 in the presence of the first sale-deed, to exercise the powers under section 476, Cr.P.C. or to direct the Police to register the case.

11. The case-law (PLD 1992 Lahore 178) relied by learned counsel for respondent No. 1 is distinguishable from the facts of the present case and is not applicable.

12. The upshot of the above discussion is that at present, no case for fictitious sale is made out and Sub-Registrar, Lahore Cantt. was not competent to order for registration of a criminal case against the petitioner. The writ petition is accepted and a direction is given to S.H.O., Police Station North Cantt. Lahore not to register a case against the petitioner till the final decision of the Civil suit pending between the parties. In view of the complicated questions of facts and law involved in this matter, the parties are left to bear their own cost. C.M.S./M-365./L Petition accepted.