2016 PLP 198 (YLRN)

Ss. 22-A, 22-B & 154

Constitution of Pakistan, Art. 199

Constitutional petition

Registration of case

Criteria

Direction of Justice of Peace to S.H.O. to record version of respondent under S.154, Cr.P.C.

Pendency of civil suit

Effect

Pendency of civil suit did not bar registration of criminal case if cognizable offence was made out

Specific allegation of preparing forged and fictitious agreement to sell by affixing forged signatures had been levelled against the petitioner which constituted cognizable offence

Ex-officio Justice of Peace did not travel beyond his jurisdiction by directing the S.H.O. to record respondent's version under S.154, Cr.P.C. [Paras. 7 and 8 of the judgment] Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 ref. Haji Sardar Khalid Saleem v. Muhamamd Ashraf and others 2006 SCMR 1192 rel.

Art. 199

Constitutional petition

Factual inquiry

Scope

High Court could not conduct factual inquiry under Art.199 of the Constitution. [Para. 8 of the judgment] Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276 rel. Ashfaq Ahmad Kharal, A.A.G. with Arshad Ali, A.S.I. ORDER AALIA NEELUM, J.

Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside the order dated 21.02.2014 whereby the learned Additional Sessions Judge Lahore, in his capacity as Ex-Officio Justice of Peace directed the SHO to record version of respondent No.3 and to proceed further strictly in accordance with law.

2. The brief facts of the case are that respondent No.3 is owner in possession of house No.374 Block-A, situated at Overseas Pakistan Foundation Housing Society, Lahore comprising of 01-kanal. The proposed accused, namely, Mst. Kausar Parveen, Muhammad Sadiq and Muhammad Ali prepared a forged agreement to sell and used the same. The accused persons have also admitted their guilt in presence of the witnesses. Said accused persons also threatened respondent No.3 of dire consequences.

3. The learned counsel for the petitioner contends that the application under sections 22-A, 22-B, Cr.P.C. in which the impugned order has been passed was not maintainable. Adds that from bare reading of the said application, no cognizable offence is made out against the petitioner; that respondent No.1 did not apply his judicious mind and the impugned order is result of misreading and non-reading of the record; that the impugned order is based upon conjecture and surmises; that no reason was given by the learned Ex. Officio Justice of Peace/ASJ while accepting application of respondent No.3/complainant filed under sections 22-A, 22-B, Cr.P.C. and by passing the impugned order, the Ex-Officio Justice of Peace has committed a material illegality and as such, the same is liable to set aside.

5. The learned Assistant Advocate General has opposed the petition on the grounds that order of the learned Ex. Officio Justice of Peace/ASJ is well reasoned and speaking one so the instant petition be dismissed.

6. I have heard the arguments of the learned counsel for the parties and have also gone through the record.

7. From the perusal of the application seeking registration of criminal case, respondent No.3 levelled specific allegation against the petitioner and two others of committing fraud and forgery by using the fake and fictitious agreement to sell qua property in question by affixing respondent No.3's forged signatures. The perusal of the said agreement to sell reveals that on the asking of respondent No.3, the petitioner statedly paid an amount of Rs.1,00,00,000/- in cash. On Court's query, what is mode of payment of cash amount allegedly paid by the petitioner, the learned counsel for the petitioner states that as the petitioner and respondent No.3 were contractor and Rs.1,00,00,000/- was adjusted against payments of different bills, whereas in the agreement to sell it is mentioned that the petitioner paid Rs.1,00,00,000/- in cash. By admitting that lumpsum amount of Rs.1,00,00,000/- was not paid rather it was adjusted against different amounts of bills which doubted authenticity of the alleged agreement to sell. The order sheets pertaining to proceedings initiated on the application for legal action of respondent No.3's daughter, namely, Mst. Sadaf Iqbal against Farooq Ahmad, Civil Judge, Lahore revealed that the petitioner (Mst. Kausar Parveen) has nexus with Farooq Ahmad, Civil Judge, against whom respondent's No.3 daughter moved application before the learned District and Sessions Judge, Lahore. The certified copy of the order dated 03.01.2014 was placed on the record by respondent No.3, wherein the learned District and Sessions Judge, Lahore stated that "No word is left to express the conduct of Farooq Ahmad, Civil Judge but painful.....". Respondent No.3 submitted application for registration of criminal case to SHO on 12.01.2014 whereas the petitioner filed a suit for specific performance of agreement to sell on 13.01.2014. During the pendency of application seeking registration of criminal case, the petitioner filed a suit on the basis of the alleged agreement to sell, which according to respondent No.3 is a forged document. Mere pendency of civil suit does not bar qua registration of a criminal case, if a cognizable offence is made out. It is held in the case law reported in "Haji Sardar Khalid Saleem v. Muhammad Ashraf etc." (2006 SCMR 1192) that: "Civil and Criminal proceedings.... Criminal proceedings were not barred in presence of civil proceedings and civil and criminal proceedings could be proceeded simultaneously It is also settled law the criminal proceedings are not barred in presence of civil proceedings and that civil and criminal proceedings can be proceeded simultaneously......"

8. The plea of the learned counsel for the petitioner that the petitioner has not committed any offence, has no force as copy of application addressed to the CCPO annexed with this petition reveals that specific allegation of preparing forged and fictitious agreement to sell by affixing forged signatures of respondent No.3 has been levelled against the petitioner and others, which apparently constitutes commission of a cognizable offence. Respondent No.3 has the right that his statement should be recorded under section 154, Cr.P.C. and the same be investigated instead of asking him to wait for the decision of civil court. Even otherwise, the question whether the petitioner and two others prepared a forged and fake agreement to sell call for holding of a factual inquiry and the said exercise cannot be conducted by this Court in present writ petition through summary proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The Apex Court of this Country in the case reported in "Col. Shah Sadiq v. Muhammad Ashiq and others" (2006 SCMR 276) after elaborate consideration of the provisions of the Criminal Procedure Code and Police Rules of 1934 held that High Court has no jurisdiction to resolve the disputed question of fact in Constitutional jurisdiction. So in this view of the matter, learned Ex-Officio justice of Peace has not travelled beyond his jurisdiction, while observing that version of respondent No.3 be recorded and the matter be dealt with in accordance with law. In my view the impugned order is eminently reasonable and proceeds on cogent grounds. Learned counsel for the petitioner has miserably failed to point out any infirmity legal or factual in the impugned order, which could justify interference by this Court.

9. Consequently, the instant writ petition having been found meritless is hereby dismissed. ARK/K-22/L Petition dismissed.