2007 PLP 2169 (YLR)

M. BILAL KHAN, J.

Miss Kanwal Akram daughter of Muhammad Akram, the petitioner, by filing this constitutional petition, has sought a direction of this Court to S.H.O., Police Station City Kharian (respondent No.2) for registration of a criminal case against respondents Nos.3 to 11, named herein.

2. The case 'of the petitioner is that she is resident of Norway where she has been residing with her father Muhammad Akram for the last twenty years; that in February 2005 her father came to Pakistan to meet with his relatives; thereafter he died in mysterious circumstances at Kharian; that Ghulam Ali (respondent No.3) who is closely related to the petitioner (brother-in-law of her father) and his children had been providing contradictory information to the petitioner about the death of her father; she reached Pakistan with her mother and brothers and after analyzing the situation was of the firm belief that her father had been murdered by Ghulam Ali, (respondent No.3) in connivance with other members of his family; she had further found out that the said Ghulam Ali, who was general attorney of her. father, by misusing the same had got a gift deed executed in favour of his wife and children (respondents Nos.4 to 11) and registered with Sub-Registrar Kharian on 24-6-2006; that the alleged gift deed had been prepared in connivance with the staff of the Sub-Registrar Kharian and the same had been reduced on a plain paper; the deficiency in payment of stamp duty had been supplied on 27-6-2006, which is the date of her father's death; she made an application to DPO Gujrat for registration of a criminal case and exhumation of her father's dead-body; S.H.O. concerned instead of registering a criminal case entered the petitioner's application in Daily Diary Register as Ruppat No.7 dated 26-7-2006 and referred the matter to DSP (Legal); the latter asked the S.H.O. concerned to move the learned Sessions Judge for exhumation of dead-body so as to ascertain the cause of death; that exhumation and disinterment was carried out collusively by flouting the relevant rules and instructions with a view to extending undue favour to respondents Nos.3 to 11 and thereafter no case was registered; later on she moved an application before the learned Addl. Sessions Judge Kharian in his capacity as ex officio justice of the peace under sections 22-A, 22-B, Cr.P.C. who proceeded to dismiss the said application vide order dated 9-12-2006.

3. It is in this background that the instant writ petition has been filed wherein it is prayed that respondent No.2 be directed to register a criminal case against respondents Nos.3 to 11.

4. In response to the pre-admission notice Sh. Naveed Shahryar, Advocate, the learned counsel for respondents Nos.3 to 11 has appeared. He argued that Muhammad Akram deceased had divorced his wife (the mother of the petitioner) which fact has been suppressed by the petitioner; that Muhammad Akram deceased had appointed Ghulam Ali, (respondent No.3) as his general attorney in the year 1999; that Mst. Bashir Begum (respondent No.11) is a real sister of Muhammad Akram deceased and is the wife of Ghulam All (respondent No.3); that Muhammad Akram had gifted his property, the subject-matter of registered gift-deed through his general attorney namely Ghulam Ali in favour of Nadeem Akhtar and others and the donees are the real sister of the donor and her children. He argued that Muhammad Akram was a heart patient and had died as a consequence of a heart attack which he had suffered; that the proceedings of exhumation and disinterment of the dead-body of Muhammad Akram (deceased) had been carried out in the presence of the petitioner; that the cause of death according to the doctor who had conducted the post-mortem examination was cardio-pulmonary arrest and the report of Chemical Examiner who had examined the visceras was also negative; that the allegation of the-petitioner that the deceased had either been strangulated or had been poisoned is negated by the post-mortem report as also by the chemical Examiner's report. He went on to argue that the petitioner is insisting for registration of a criminal case as a pressure tactic against the respondents so that they give up the property, which was the subject-matter of registered gift-deed.

5. I have heard the learned counsel for the parties at considerable length and have perused the documents appended with the petition as also brought on record by the respondents. I have also heard the learned Additional Prosecutor-General Punjab 'for the "State and perused the impugned order dated 9-12-2006.

6. It is on record that dead-body of Muhammad Akram deceased had been disinterred and exhumed on the basis of application made by the petitioner wherein she had alleged that her father had either been strangulated or he had been administered poison. It is also on record that the doctor who carried out post-mortem examination had opined that after his careful exhumation he could not ascertain the cause of death, however on receipt of Chemical Examiner's report he made an endorsement on the post-mortem examination report to the effect that vide Report No.1361/Pv. dated 30-10-2006 from the Chemical Examiner Punjab, Lahore no poison was detected in the visceral sent to Chemical Examiner, hence the cause of death was cardio-pulmonary arrest. In this background the learned counsel for the petitioner has not been able to persuade this Court to issue the requisite writ inasmuch, as no useful purpose would, be served at this stage to order registration of a criminal case especially in the presence of negative autopsy and Chemical Examiner's report. I would not like to comment on the circumstances, which according to the petitioner preceded the death of Muhammad Akram. Likewise it would not be appropriate to comment on the vires of the gift-deed whether it could be executed by the general attorney? whether in the presence of the principal himself, the agent could use the power of attorney? whether the agent could transfer the property of his principal to his own kith and kin and that too, by way of a gift? All these questions have to be thrashed out by the learned civil Court where a suit for cancellation of the gift deed has already been filed by the petitioner. The learned counsel for the petitioner has not been able to point out any jurisdictional error in the impugned order dated 9-12-2006 passed by the learned Addl. Sessions Judge, Kharian. However, it may be stated that mere pendency of a civil suit does no debar criminal action. Although in paragraph No.5 of his impugned order the learned Additional Sessions Judge had not stated so in so many words yet if he wanted to convey such an impression, it was not correct. The petitioner is obviously not without a remedy and she may, if so advised, file a private complaint and if she resorts to such a course of action, her complaint shall be' entertained by the learned trial Court and decided on its own merits uninfluenced by any observation made herein or in the impugned order of the learned Additional Sessions Judge, Kharian dated 9-12-2006. This constitutional petition is disposed of with the observations as recorded hereinabove. N.H.Q./K-11/L Petition dismissed.