2003 P Cr (PLP)

Muhammad Akbar v. State and another PLD 1968 SC 281; N Manak Ji v. Fakhar Iqbal and another 1969 SCMR 198; Miraj Khan v. Gul Ahmad and 3 others 2000 SCMR 122 and Mst. Irshad v. Rashid Ahmad PLD 1907 Lah. 554 ref. Ch. Muhammad Yaqoob Sidhu for Petitioners. Muhammad Arshad Khan for Respondents Nos.3 and

4. Muhammad Akbar Tarar, A.A.‑G. for Respondents Nos. 1, 2 and

5. Date of hearing: 17th October, 2002. Through the instant petition quashment of criminal proceedings pending before Magistrate 1st Class, Kharian arising out of Case F.I.R. No.62 of 2001 dated 18‑3‑2001 registered with Police Station Kakrali under sections 420, 468, 471, P.P.C. have been sought. The brief facts of the case for disposal of the instant petition are that Roshan Din father of Muhammad Siddiq, petitioner No.2 had agricultural land in Chak No.45/5‑L, District Sahiwal as well as in Mauza Nandwal, Tehsil Kharian, District Gujrat, which on his death, was also inherited by his son Muhammad Siddiq, petitioner No.2 and two daughters Mst. Ghulam Fatima and Mst. Razia Begum, respondents Nos.3 and 4 (in the amended writ petition) who are permanently residing in Mauza Nandwal, District Gujrat. The case of the petitioner No.2 is that his sisters (respondents Nos.3 and 4) agreed to give land situated in Chak No.45/5L, District Sahiwal to petitioner No.2 in exchange of his share of land in Nandwal so the Mutation No.581 was got attested for exchange of the land in Chak No.45/5L on 27‑3‑1999 on behalf of respondents Nos.3 and 4 in favour of petitioner No.2 Muhammad Siddiq and in lieu of that on 19‑8‑1999 Mutation No. 2851 was got registered in favour of respondents Nos.3 and 4 by petitioner No.2 in Tehsil Kharian, District Gujrat as exchange of his share of land. The difference arose between the parties and an application was moved by respondents Nos.3 and 4 to the authorities in Kharian for taking action against the petitioners alleging fraud having been played with them and depriving them of the valuable land. On 9‑3‑2001 petitioner No.2 filed a suit in the Civil Court at Sahiwal defending the Mutation No.581 of exchange in his favour which is still pending. In the meantime F.I.R. No.62 of 2001 was registered at Police Station Kakrali on 18‑3‑2001 on the basis of inquiry on the application of respondents Nos.3 and 4 and after completion of the investigation challan has been submitted before respondent No.2. The proceedings pending in the criminal case have been sought to be quashed. Learned counsel for the petitioners contends that petitioner No. 1 is wife of petitioner No.2 and she is neither party to the exchange of the land nor she has played or attributed any role in the criminal case and has been falsely implicated in the case; that no offence has been committed within the jurisdiction of Police Station Kakrali, District Gujrat as petitioner No.2 obtained land in District Sahiwal and if any offence has been committed that is in District Sahiwal and the registration of a criminal case in District Gujrat is illegal and mala fide; that the civil suit was filed by petitioner No.2 prior to the registration of criminal case as a counterblast and continuation of criminal proceedings during the pendency of the civil suit is clear abuse of process of Court; that the case was registered with unexplained delay of two years which shows malice on the part of the complainant; that the dispute between the parties is of civil nature and has been wrongly turned into criminal to pressurize the petitioners to give up claim over the land. In support of his contentions, the learned counsel for the petitioner has placed reliance on PLD 1968 SC 281 titled Muhammad Akbar v. State and Maulvi Muhammad Yasin Khan 1969 SCMR 198 titled N. Manak Ji v. Fakhar Iqbal and another and 2000 SCMR 122 titled Miraj Khan v. Gul Ahmad and 3 others. The petition has been vehemently opposed by learned counsel appearing on behalf of respondents Nos.3 and 4, who has placed reliance on PLD 1997 Lah. 554 titled Mst. Irshad v. Rashid Ahmad, to argue that the petitioners should avail alternate remedy by moving an application under section 249‑A, Cr.P.C. before the trial Court at the first instance. After giving due consideration to the contentions raised at the bar I have perused the record and the case‑laws referred to above. It is correct that Mutation No.581 on behalf of respondents Nos.3 and 4 in favour of petitioner No.2 was attested in District Sahiwal but at the same time admittedly Mutation No.2851 was attested on 19‑8‑1999 in District Gujrat which was an exchange mutation in lieu of Mutation No.581. The respondents Nos.3 and 4 have disowned by moving application to the effect that they ever accepted this exchange or appeared before the Revenue Officer. During the inquiry Muhammad Latif son of Roshan Din brother of the contesting parties and Khalil Ahmad Malik Advocate who allegedly identified the ladies before the Revenue Officer when Mutation No.2851 was attested, have also supported the version of the respondents. Khalil Ahmad Malik, Advocate stated that he had never appeared before the Revenue Officer to identify the ladies while Muhammad Latif stated that ladies produced by Muhammad Siddiq, petitioner No.2, were wearing Burqa (veil) and he was not sure whether those were his sisters Ghulam Fatima and Razia Begum. Both the mutations were interlinked and the fraud has been specifically alleged regarding attestation of Mutation No.2851 in District Gujrat and the case was registered after holding inquiry, by the Revenue Authorities, therefore, I do not find any jurisdictional defect in registration of criminal case. It is, also observed that objection regarding the jurisdiction is to be raised before the trial Court at the first instance. The arguments of the learned counsel for the petitioners that Mst. Sughran Bibi (petitioner No. 1) has not been attributed any role require factual inquiry and is to be seen by the trial Court at the appropriate stage as she can seek remedy by moving petition under section 249‑A, Cr.P.C. at any stage. The prayer of the learned counsel for stay of the proceedings before criminal Court during the pendency of civil suit cannot be acceded to in the instant case as in the civil suit pending at Sahiwal the Mutation No.581 is being defended which is not relevant in the instant criminal proceedings. The powers under section 561‑A, Cr.P.C. are not meant to stifle the prosecution case but instead prosecution is to be allowed opportunity to prove it as held by the Honourable Supreme Court in case PLD 2001 SC 536 titled The State v. Asif Ali and another. The case referred to by learned counsel for the petitioners is not applicable to the facts and circumstances of the instant case. In view of the above, the petition is dismissed. S.M.A.H./S‑533/L Petition dismissed.