2004 P Cr (PLP)

Muhammad Azam for the State. Rashid Rehman for the Complainant. This is an appeal against the order; dated 13‑6‑2003 passed by the learned Additional Sessions Judge, Vehari whereby he has acquitted the accused respondents Nos.1 to 9 under section 249‑A, Cr.P.C. in case F.I.R. No.2 of 1996 under section 420/468/471/109, P.P.C. registered at Police Station Thingi, District Vehari.

2. Briefly the facts giving rise to this petition are that the appellant/complainant got the above‑referred case registered against respondents Nos. 1 to 9 and another stating therein that accused/respondent No.3 Mst. Manzooran Mai was married with Muhammad Nawaz the uncle of the complainant Iqbal Khan. Said Muhammad Nawaz divorced to Mst. Manzooran Mai on 7‑10‑1992 and died issueless on 8‑4‑1993. The accused/respondent No. 1 Hakeem Mushtaq had a child from his wife Mst. Nusrat but the same declared to be the child of Mst. Manzooran Mai from Muhammad Nawaz deceased and the land of Muhammad Nawaz was got mutated in the name of said child namely Sheroze in connivance of other co‑accused thereby had committed the offence under section 420/468/471 read with section 109, P.P.C.

2. After completion of investigation challan was submitted against accused/respondents Nos. 1 to 9 before the Court of Civil Judge Magistrate 1st Class, Vehari.

3. An application was filed by the accused under section 249‑A, Cr.P.C. before the learned trial Court for their acquittal on the ground that they had been facing the trial for the last 6 years but no progress had been made and that a criminal case of similar allegation had been lodged in the Police Station of Mitro District Vehari which had been cancelled on 29‑2‑2001. The said application was dismissed by the learned trial Court on 24‑11‑2001 then the said accused filed revision petition before the Additional Sessions Judge, Vehari against the said order which was accepted. Vide the impugned order, whereby order, dated 24‑11‑2001 was set aside and the accused were acquitted under section 249‑A, Cr.P.C. of the charges levelled against them in aforementioned case, hence this appeal before this Court by the complainant Muhammad Iqbal of the said case. 3‑A. Learned counsel for the appellant contends that the challan in the instant case was submitted in the year 1997 and the accused/respondents were not intentionally appearing before the Court due to mala fide and ulterior motive, therefore, the case lingered on due to the conduct of the accused and not of any fault of the complainant party. Further submits that there was sufficient material available on the file to connect the accused with the commission of the offence in the form of statements of the P.Ws. under section 161 as well as 164, Cr.P.C. that although the challan was submitted in the year 1997 but the charge was framed on 29‑10‑2001 whereas attendance of the accused was completed on 29‑10‑2001; that copies were distributed to them on 27‑11‑2001 and case was fixed for framing of charge, therefore, delay is not attributable to the complainant.

4. Conversely, learned counsel for the acquitted accused has strongly opposed this appeal.

5. I have heard the learned counsel for the parties and also perused the record, carefully. It has been noticed that father of the complainant/appellant namely Ahmad Nawaz Khan got a criminal case registered vide F.I.R. No.353 of 1995 under sections 420/461/477 read with section 109, P.P.C. at Police Station Mitro against the acquitted accused of the instant case. After due investigation the said case was found to be false and baseless and the accused were discharged from the case. After the discharge of the accused in case F.I.R. 353 of 1995 the present complainant Muhammad Iqbal got the instant case registered on the same set of facts and against the same set of accused persons. It has also been noticed that both father and son i.e. complainant in two different cases with regards to the same allegation against the same persons are living together at one place. Sheroz was born on 11‑11‑1993 whereas Muhammad Nawaz died on 8‑4‑1993. After about 7 months of death of Muhammad Nawaz Sheroz was born and according to Islamic Law it would be presumed that he is legitimate child of the deceased Muhammad Nawaz. After the death of Muhammad Nawaz the mutation of inheritance was sanctioned in favour of the legal heirs of Muhammad Nawaz against which appeals were filed before the Revenue Courts but all were decided in favour of the legal heirs. After 3 years of the death of Muhammad Nawaz, Muhammad Iqbal and his father Ahmad Nawaz Khan had lodged the F.I.Rs. against the accused persons. The record further reveals that civil cases titled Ahmad Nawaz v. Mst. Manzooran Mai are pending before the Civil Courts wherein the paternity of Sheroz has been disputed which can be‑ decided by the Courts of competent jurisdiction after recording the evidence and same cannot be decided by the criminal Courts. Learned Additional Sessions Judge has rightly referred to a case decided by the august Supreme Court reported as Baha‑ud‑Din v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang reported in 1993 P. Criminal Cases 676 wherein it was held by the Supreme Court that wherein both the remedies of criminal as well as civil sides are available, the Civil Court might be given preference and allowed to decide such disputed facts. In the circumstances, of this case I am of the view that the accused persons have suffered the agony of protracted trial since 1995 when the first case was registered against them and even now there is no hope that the instant case would be concluded in the near future. Keeping in view that the case was already registered against the respondents on the same set of facts and also that the controversy between the parties is being agitated before the Courts of plenary jurisdiction where it would finally be decided that whether Sheroz was born out of the wedlock between Mst. Manzooran Mai and Muhammad Nawaz or out of wedlock of Hakeem Mushtaq and Mst. Nusrat Mai accused person in this case. It is too early to proceed against A the accused person on the basis of allegations, which are subjudice before the Civil Court. The outcome of the civil proceedings would be the basis of criminal proceedings. In case Civil Court comes to the conclusion the document with regard to birth of Sheroz was forged and on the basis of the said documents mutation of inheritance had been manoeuvred by the interested parties, then even Civil Court can order the registration of case against, the person responsible for commission of any offence with regard to the documents or using the same before the Court of law. Learned counsel for the appellant has failed to point out any illegality or infirmity in the impugned order. There is no perversity of reasoning in the impugned order, therefore, I am not inclined to interfere in the impugned order. Accordingly this appeal is dismissed being without any merits. H.B.T./M‑180/L Appeal dismissed.