2012 P Cr (PLP)

SYED MUHAMMAD KAZIM RAZA SHAMSI, J.

This constitutional petition is directed against an order dated 3-4-2012 passed by the learned Additional Sessions Judge, Okara/Ex-Officio Justice of Peace whereby the request of the petitioner to issue direction to the SHO, Police Station concerned to record her version and for taking the legal proceedings thereon was declined.

2. Mst. Karima Bibi being real sister of respondent No.5, Ghulam Farid filed an application under sections 22-A and 22-B, Cr.P.C. before the learned Ex-Officio Justice of Peace, Depalpur, District Okara stating that after death of her father her brother Muhammad Ishaq with the connivance of the Stamp Vendor fraudulently prepared a memorandum of gift on behalf of late Haji Muhammad Yousaf and in this manner has deprived her from shari share in legacy of her father. She prayed for registration of case against the respondents mentioned in her application for forgoing and fabricating a memorandum of gift.

3. Learned Ex-Officio Justice of Peace had secured the report from the local police which disclosed that after death of Haji Muhammad Yousaf the parties have a dispute of partition of the property of their late father and in this connection civil suit titled Muhammad Ismail v. Mst. Karima Bibi is pending in the Civil Court where the alleged gift deed has been produced and the matter is under consideration of the Court. After perusing the report and other material on the record the learned Ex-Officio Justice of Peace declined to allow the application of the petitioner vide the order impugned in the instant constitutional petition.

4. Learned counsel for the petitioner argued that from the bare perusal of the application the commission of cognizable offence is made out against the respondents, thus the learned Ex-Officio Justice of Peace was not justified in declining issuance of the direction to the SHO of the Police Station concerned. He has also commented upon the application of the section 195 as well as section 476, Cr.P.C. and submitted that if any illegal act is performed in the presence of the Court then the afore-noted sections shall come into play while in other cases the matter is to be reported to the police. Learned counsel has also referred to the cases of Ch. Abdul Hameed v. D.P.O Distirct Vehari and 7 others (2006 PCr.LJ 832), Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178), Ghazala Ikram v. Muhammad Akram Ali and another (2007 YLR 1820) and Hidayatullah and others v. The State through Advocate-General N.-W.F.P. Peshawar High Court, Peshawar (2006 SCMR 1920).

5. I have considered the submission made by the learned counsel for the petitioner and examined the case-law cited at the bar. There are no two opinions about the proposition led by the learned counsel for the petitioner that the jurisdiction of the Court under sections 195 and 476, Cr.P.C. in relation to the proceedings being conducted before the Court can only be invoked if illegal act is performed during proceedings pending in the Court while for all other illegal acts performed by the persons the matter is to be proceeded by making a statement under section 154, Cr.P.C. before the local police but the question in the instant case is that the alleged fabricated agreement memorandum of gift is under consideration of Civil Court where its execution and other allied matters would be determined by the Court of competent jurisdiction after recording the evidence of the parties, thus in my opinion at this stage it would not be appropriate to set into motion the criminal machinery as well. No doubt civil and criminal cases can proceed side by side but ultimately preference is to be given to the civil matters to avoid conflict of judgments. In Akhlaq Hussain Kiyani's case (2010 SCMR 1835), the Hon'ble Supreme Court of Pakistan had stayed the proceedings in the criminal case till the decision of the said civil matter, thus it is adviseable, in the such like cases, to wait for the verdict of the Civil Court which its enjoys jurisdiction to direct the registration of case if it finds that a document under its consideration was a fake and frivolous document.

6. In view of the above, the order passed by the learned Ex-Officio Justice of Peace does not call for interference of this Court, thus the petition in hand having no merits is dismissed in limine. MWA/K-11/L Petition dismissed.