1998 PLP 1617 (MLD)

F.I.R. No.110 of 1996 has been registered on 5-3-1996 at Police Station Factory Area, Faisalabad under sections 420, 468, 471 and 466, P.P.C. on the complaint of Muhammad Sadiq son of Nabi Bakhsh against the present petitioners. The dispute which also is the subject matter of the F.I.R. relates to Plot No. 206 and Plot No. 207 situated in Block-A, Nazimabad, Faisalabad City. These plots were originally purchased in open auction from the then Lyallpur Improvement Trust by Ikramul Haq on 27-2-1961. On 28-9-1961 he executed power of attorney in favour of his brother Naeemul Haq. The latter in turn executed power of attorney in favour of his father, Abdul Haq on 18-6-1962. Pursuant to this power of attorney, Abdul Haq on 7-9-1967 executed agreement of sale of these two plots in favour of Muhammad Sadiq and Sardar Ali sons of Nabi Bakhsh. According to the learned counsel for the complainant the entire consideration was paid to Abdul Haq who also delivered the possession to Muhammad Sadiq and Sardar Ali. Admittedly, the formal sale- deed was not executed by Abdul Haq in favour of Muhammad Sadiq and Sardar Ali.

2. Muhammad Sadiq and Sardar Ali had also joint business. The dispute arose between the brothers which according to the learned counsel for the complainant was referred to the arbitration of Ch. Bashir Ahmad son of Haji Din Muhammad and Muhammad Umar son of Ghulank of Muhammad who on 28-1-1990 announced the award whereunder both these plots were given to Muhammad Sadiq. This award was made rule of the Court on 17-5-1990. However, again in pursuance of the decree dated 17-5-1990, the formal sale deed was not executed in favour of Muhammad Sadiq.

3. Muhammad Sadiq, complainant/respondent No.6 is represented by Mr. Muhammad Ramzan Chaudhry and Kh. Muhammad Fazil Butt, Advocates, on whose behalf written statement has also been filed. According to the learned counsel for the complainant Abdur Rashid, the present petitioner, applied to F.D. A. for the implementation of the decree of the Court dated 17-5-1990. This application was supported by his affidavit and the affidavit of Abdul Hameed. Subsequently, Ikramul Haq son of Abdul Haq executed power of attorney in favour of Abdur Rasheed, the present petitioner, on 5-1-1995 whereunder the present petitioner Abdur Rasheed was authorised to deal with both the aforesaid plots and also to sell the same.

4. The case of the petitioners is that-in pursuance of the power of attorney dated 5-1-1995, Abdur Rasheed, the petitioner, executed agreement dated 31-1-1995 in favour of his brother Abdul Hameed agreeing to sell both these plots to him for consideration. It was because of this agreement to sell that the complainant felt aggrieved, and filed Writ Petition No.2807 of 1996 for registration of criminal case against the present petitioners etc. This writ petition was disposed of on 26-2-1996 with the following observation:-- "The Inspector undertakes to proceed strictly in accordance with law on the application of the petitioner, if submitted. " It appears that application was made to the S.H.O. concerned who registered the F.I.R. in question.

5. After making some investigation the S.H.O., Police Station Factory Areas, Faisalabad on 17-12-1996 reported that:--

6. It is the case of the petitioners that after this discharge-report the matter was put up before the Illaqa Magistrate and the order of cancellation and discharge was passed by him. However, the record shows that this report was, no doubt, submitted to the Illaqa Magistrate but before he had passed any formal order of discharge of the accused or cancellation of F.I.R., the D.I.-G., Range Crime, Faisalabad on the report of S.P., Manzoor Ahmad Khan directed re-investigation into the matter. Accordingly, fresh investigation was taken in hand which was entrusted to Muhammad Yaseen, Inspector, Range Crime, Faisalabad. Manzoor Ahmad Khan, the then S.P., Faisalabad, appears to have passed the order of re-investigation on 12-2-1997, without going through the contents of the report, which was prepared by some of his subordinate officials and the same was approved by the D.I.-G., Range Crime. Both these Officers have not applied their independent mind to the facts of the case.

7. Learned counsel for the petitioners submits that even from the perusal of the F.I.R., no criminal charge of forging 'or preparing false documents is made out against the petitioners inasmuch as the power of attorney and the agreement of sale were executed in the month of January, 1995 by Ikramul Haq and Abdul Rashid respectively who admit the execution of the same. He also submits that in any case the matter is purely of civil nature as the parties were litigating for these plots and other matters through arbitration and in civil Courts. He submits that the complainant filed a suit for declaration on 28-9-1991 in respect of these two plots but the same was dismissed on 13-10-1992. The complainant again filed suit for specific performance of the agreement which was originally made in his favour by Abdul Haq but that suit was also dismissed on 5-10-1995.

8. According to the learned counsel for the petitioner an application for transfer of these plots was also made to F.D.A. but the same was dismissed on 4-2-1996. However, learned counsel for the complainant has shown me the transfer order dated 6-6-1997 made by F.D.A. in favour of respondent No.6, Haji Muhammad Sadiq. Learned counsel for the petitioner states that this transfer order has been challenged by the petitioners in Writ Petition No. 17517 of 1997 which is still pending.

9. The power of attorney dated 5-1-1995 is admittedly executed by Ikramul Haq in favour of Abdur Rasheed, the present petitioner, in pursuance whereof Abdur Rasheed admittedly executed agreement of sale in favour of his brother Abdul Hameed, petitioner No.2. Both these documents are not fake nor the result of forgery. Therefore, in respect of these two documents no forgery has been committed by the petitioners. Besides, the contents of the F.I.R. reveal that the dispute between the complainant and the petitioners is essentially of civil nature and in the past has been subject-matter of civil litigation. This dispute can best be resolved through the Civil Court or the arbitral forum.

10. For the enforcement of his rights in this particular case, the complainant cannot be allowed to set the machinery of criminal justice in motion. The continuation of the prosecution would be an abuse of the process of law and would not serve any purpose for the ends of justice. Therefore, relying on the decision of this Court in Mst. Shabana Chaudhry v. S.H.O., Akbari Gate Lahore (PLD 1993 Lahore 416), this petition is accepted and F.I.R. No. 110 of 1996 registered on 5-3-1996 at Police Station Factory Area, Faisalabad is quashed. No order as to cost. H.B.T./A-251/L Petition accepted.