2006 PLP 512 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

Through this petition petitioner seeks leave to appeal against the order of the High Court dated 7th November, 2005 whereby F.I.R. No.66 of 2004 dated 16th December, 2004 registered at Police Station A.C.E. District Gujranwala was quashed.

2. Facts of the case are that petitioner alleged that respondent No.1 Muhammad Sharif being his real brother had deprived her from her share out of legacy left by her father Farzand Ali and her real brother Muhammad Shall who had died issueless during the lifetime of her father. The background constituting cause of grievance for the petitioner is that her father Farzand Ali had two sons namely Muhammad Shall and Muhammad Sharif and a daughter i.e. Mst. Rafique Bibi (petitioner). He being the owner of property measuring 92 Kanals, 15 Marlas statedly transferred the same by means of a gift deed (registered in favour of his two sons Muhammad Shafi and Muhammad Sharif) in equal shares. Muhammad Shafi died during the lifetime of Farzand Ali and his wife Mst. Aasoo as issueless, therefore, his property again devolved upon Farzand Ali, Mst. Aasoo and Muhammad Sharif. A Mutation entry No.1319 was registered on 10th July, 1978 in favour of Farzand Ali and Mst. Aasoo father and mother of Muhammad Shafi as well as in favour of Muhammad Sharif. As far as petitioner Mst. Rafique Bibi is concerned, she was not shown in the pedigree table to be one of the legal heirs of Muhammad Shafi. It is stated that Farzand Ali died in 1986 and in the meanwhile Mst. Aasoo had also died. Subsequently, after a considerable period petitioner Mst. Rafique Bibi filed a complaint before the Anti-Corruption Establishment alleging fraud with her by respondent No.1 and officials of Revenue Department. Details are mentioned therein. On this complaint investigation had commenced and Muhammad Sharif respondent No.1 instead of waiting the outcome of the investigation instituted a constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan before the High Court with the prayer to quash the F.I.R. and succeeded in getting the relief as is evident from the contents of the impugned judgment. Relevant para. therefrom is reproduced hereinbelow:-- "After hearing learned counsel for the parties at some length and going through the record as well as comments filed by respondents, I have observed that complainant of this case is the real sister of the petitioner. She has lodged this F.I.R. after more than twenty-six years of the occurrence. It is not believable that she being the resident of the same village had not come to know about the pedigree list. The silence of the complainant for such a long period and getting this case registered after twenty-six years itself shows the mala fide of the complainant. Similarly the record of the case also reveals that legality of Mutation No.1319 was challenged by the complainant before the District Officer (Revenue), Gujranwala who vide order, dated 26-5-2005 while dismissing the application observed that real brother of the petitioner namely Muhammad Shafi at the time of his death was unmarried, therefore, petitioner and complainant/respondent had no right to inherit his property when the parents of the deceased were still alive'. Thus, the arguments of learned counsel for the complainant that the lady (sister of the petitioner) had been deprived of her right have no force. If the complainant/respondent still feels that she had been deprived of her share from the property of her deceased brother (Muhammad Shafi) she can avail the remedy before the appropriate forum. As far as registration of the said F.I.R. is concerned, as observed earlier, the same is based upon purely mala fide and there is no justification for the registration of the case after such a' long period. Even otherwise, the data available on the record reveals that it is a case of civil nature and by the registration of this case attempt has been made to bring it within the fold of criminal liability. Accordingly this petition is allowed and F.I.R. No.66 of 2004, dated 16-12-2004 for the offence under sections 420/467/468/471/109, P.P.C. read with section 5(2) of P.C.A., 1947 registered at Police Station A.C.E. Gujranwala, stands quashed."

3. Learned counsel for the petitioner contended that the learned High Court had no jurisdiction to quash the proceedings in view of the fact that there were disputed facts required to be established or proved before a Court of law in accordance with Qanun-e-Shahadat. It was also emphasized by him that the High Court perhaps was not correct in assuming that registration of a case after a period of 26 years tantamounts to institute the proceedings with mala fide. He contended that petitioner is an illiterate lady having limited resources to approach the Courts of law in time for the purpose of instituting a criminal or civil case against the respondents, therefore, for such reasons the Court had no justification to observe that action is based on mala fides and that a civil dispute has been converted into a criminal liability.

4. On the other hand, learned counsel for the respondents contended that petitioner is not entitled to claim any share from the property left by Muhammad Shafi her brother according to Muhammaden Law. He was also of the opinion that no case was filed by the petitioner during the lifetime of her father Farzand Ali who had died in 1986, therefore, to drag the respondent unnecessarily into the Courts, she instituted the F.I.R. Learned counsel for the State however, supported to the claim of the petitioner under the circumstances of the case.

5. We have heard the parties counsel and have also gone through the impugned judgment carefully. From perusal of the relevant para. which has been reproduced hereinabove, it is evident that the learned Single Judge in Chambers of the High Court proceeded to quash the F.I.R. mainly for the reasons: firstly that F.I.R. has been registered after a period of about 26 years; secondly questions involved therein are of civil nature and thirdly there is mala fide on the part of the petitioner to involve the respondent after a long period in criminal litigation.

6. It is to be observed that the effect of lodging the F.I.R. with delay is always left to be considered by the trial Court seized with the matter because in every case delay in lodging the F.I.R. had not been considered fatal by the superior Courts and if lodging of F.I.R. with delay is explained convincingly then the Court would not terminate the proceedings on this score. As far as question of satisfying the delay is concerned, it entirely relates to the factual aspect of the matter. So far as the second ground prevailing upon the High Court with regard to converting a civil dispute into a criminal liability is concerned, in this behalf it is to be noted that there is no bar to initiate both the proceedings i.e. civil and criminal simultaneously. Readily reference may be made to M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691. So far as the question of mala fides as it has been attributed to the petitioner is concerned, it is a question of fact requires proof by producing evidence as it has been held in the case of Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14.

7. This Court has always emphasized for the protection of the rights of the women particularly relating to the landed property. In this context celebrated judgment in the case of Ghulam- Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 can be cited to strengthen the arguments. Relevant paras therefrom are reproduced hereinbelow : -- "The main points of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately, to the heirs. Thus, it is obvious that a Mulsim's estates legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus, there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction. It is so notwithstanding whether they (the heirs) like it, want it, abhor it or shun it. It is the public policy of Islamic law. It is only when the property has thus, vested in the heir after the succession opens, that he or she can alienate it in a lawful manner. There is enough comment and case-law on this point which stands accepted. Reverting to the vesting of the property in a Muslim heir, as a corollary to what has already been said, it is further to be held that if the State, the Court, the clergy, the executor, the administrator does not intervene, no other body intervenes on any other principle, authority, or relationship--even of kinship. Thus, the brother, the father, husband, son or vice versa, does not or cannot intervene as an intermediary. Here we are dealing with the brothers trying though illegally, as if a guardian-in-inheritance-so-called, of a sui juris sister, on allegedly "moral" basis to oust her. It is clearly prohibited by Islam. The females cannot be treated so in our system. And we cannot in the present constitutional and legal system import or apply any foreign system or so-called common law, or law of nature in preference to our own. (See Haji Nizam's case PLD 1976 Lah. 930), as approved in Muhammad Bashir's case PLD 1982 SC 139."

8. In this context, another judgment relevant in this behalf in the case of Mst. Fazal Jan v. Roshan Din and 2 others PLD 1992 SC 811 can be cited. In this case to protect the- rights of the appellant in the property, this Court appointed State Counsel to provide legal aid and to safeguard her rights for the purpose of promoting the administration of justice. Thus, from the tenor of both the judgments referred to hereinbefore it can safely be held that the womenfolk in Pakistan is equally protected and they have got every right to approach the Courts for the purpose of their lawful rights and if such matter has been brought, it should be dealt with in accordance with law and merely for technical reasons as in this case had happened, relief cannot be denied to them.

9. Thus for the foregoing reasons, this petition is converted into appeal and allowed. The impugned judgment is set aside and F.I.R. in question is revived. Mr. Shahid Nawaz Warraich, Circle Officer, Anti-Corruption, Gujranwala/Investigating Officer present in Court is directed to investigate the case independently without being influenced in any Manner from the observations made in the instant case and on completion of the investigation to proceed in accordance with law. The Court seized with the matter, if challan is submitted, shall dispose of the case expeditiously as far as possible within a period of six months and copy of the judgment shall be sent to the Registrar of this Court for our perusal in chambers. Disposed of. M.H./R-2/SC?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.