2005 P Cr (PLP)

Applicant wants to place on record documents attached with the application. Allowed subject to all just exceptions. C.M. stands disposed of.

2. For the reasons stated in the application, the same is allowed. However, it will have no bearing on any other proceedings pending at any other forum. Disposed of.

3. Mst. Razia Sultana seeks quashment of F.I.R. No.396, dates 5‑6‑2002 under sections 420, 468, 471, P.P.C. Police Station Gulberg, Lahore at the instance of respondent No.2 (since dead) with the allegations that he being general attorney of Muhammad Aqil and Zameer Akhtar had sold land in dispute to one Muhammad Aslam through agreement to sell dated 14‑12‑1995 and thereafter present petitioner forged Hiba Nama in connivance with the co‑accused in her own name, therefore committed a fraud.

4. Learned counsel for the petitioner contends that civil litigation is pending between the parties with regard to the same property and it is to be determined by the Civil Court that whether Hiba Nama in favour of the petitioner is genuine or not that the case has been got registered under the orders of Sub‑Registrar but the said order was set aside by the District Officer (Revenue), Lahore on 13‑7‑2002; that one Shams‑ud‑Din had filed his power‑of‑attorney on behalf of Muhammad Aqil and his sister Zameer Akhtar while stand of the complainant was that Muhammad Aqil had died in the year 1996 and Zameer Akhtar was lunatic at the time when Hiba Nama was allegedly executed by Muhammad Aqil and Zameer Akhtar, therefore, filing of power‑of‑attorney on their behalf by the complainant himself amount to playing fraud with the Court and registration of criminal case is also without any basis. Reliance has been on Iftikhar Ahmad and another v. S.H.O. Police Station Kohsar, Islamabad and 2 others PLD 2001 Lah. 399.

5. The petition has been opposed by the learned counsel who had appeared for respondent No.2 but on the last date of hearing he stated that according to his information respondent No.2 has since died, therefore, he has moved C.M No.2642 of 2004 for impleading Rana Muhammad Arif as a party being husband and guardian of Zameer Akhtar and also paternal cousin of Muhammad Aqil (deceased) through Zameer Akhtar and had opposed the petition and has argued that Sub -Registrar while directing S.H.O. for registration of criminal case and investigation had held a detailed inquiry after associating the parties and the said order has been got set aside through District Officer (Revenue) without any cogent reasons. Further adds that after registration of case F. I. R. is not to be quashed but it should end by completing the evidence and submission of report under section 173, Cr.P.C. either way; that the complainant had filed a Writ Petition No.9877 of 2003 titled Syed Zain -ul‑Abideen Shah v. S.S.P. Investigation Lahore challenging the discharge report prepared by the police and the said petition was disposed of with the observation that "he can move the competent authority in the police hierarchy for re‑investigation of the case and secondly he can file a private complaint" and the petitioner has chosen the first option and moved for re‑investigation of the case and the case is still pending in re investigation; that the present writ petition is without impleading District Officer (Revenue), Deputy District Officer (Revenue) and the petitioner has also not impleaded the Police Officer as party who held her guilty in the investigation; that at this stage when the investigation is still in progress, F.I.R. is not to be quashed; that Shams‑ud‑Din mentioned by the leaned counsel for the petitioner in his arguments that he had filed his power‑of‑attorney on behalf of Muhammad Aqil and Zameer Akhtar was as a matter of fact, companion of the petitioner and was not known to the complainant, therefore, complainant was not responsible for any power of attorney filed by said Shams‑ud‑Din; that the petitioner has not produced original Hiba Nama subject‑matter of the fraud before the police. Sub Registrar or even before this Court.

6. I have heard the learned counsel for the parties and examined the record.

7. As per contents of the F.I.R. on application moved by the complainant to Sub‑Registrar, Model Town, Lahore, a report was prepared on 14‑5‑2002 and legal action was recommended against the accused on which Deputy District Officer (Revenue), Lahore Cantt. passed order on 14‑5‑2002 for registration of criminal case. The petitioner challenged the said order before the District Officer (Revenue), Lahore who after seeking comments of the Sub‑Registrar concluded that the case is that of further inquiry and proceedings initiated by the office were not proper in view of section 39 of the Specific Relief Act. Relevant para. 2 of the said order is‑reproduced as under:‑ "The matter has been looked into. Actually it is a case of further inquiry because the matter is purely of civil nature on the ground that the culprits who had managed to get a case registered against the petitioner have also defrauded the petitioner. The perusal of the file is showing that there was a land belonging to Rana Aqil and his sister Zamir Akhtar and they appointed a general attorney namely Syed Zainul Abidin under the law of Registration whereas the petitioner Mst. Razia Sultana had entered into an agreement directly in 1996 with one Rana Aqil and Zamir Akhtar. And accordingly she got a document registered in her favour in 1997 whereas Pir Syed Zainul Abidin by posing that one of the executant namely Rana Aqil had expired before the registration of the document and the second one Zamir Akhtar had gone mad, tried to mislead the office and the local police as well because it was in his knowledge that there is a civil suit pending adjudication in a Court and he had submitted Waqalat Nama from the above said executant in the year 2000. " The stand of the complainant himself in the F.I.R. was that he being general attorney has not mentioned that when he was constituted attorney by Muhammad Aqil and Zameer Akhtar and he has stated that on 14‑12‑1995 he sold the property in dispute to one Muhammad Aslam through agreement to sell and the petitioner Razia Sultana prepared a Hiba Nama dated 12‑7‑1999 when Muhammad Aqil had already died and Zameer Akhtar was lunatic since, 1996. So, if the complainant had already sold the land to Muhammad Aslam then he had no interest left in the property. It was for Muhammad Aslant vendee of the land to seek declaration/cancellation of the document from the Court of competent jurisdiction or to challenge the Hiba Nama allegedly forged by the petitioner under section 39 of the Specific Relief Act, which reads as under: ‑‑ When cancellation may be ordered.‑‑‑Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable and the Court may, in its discretion, so adjudge it to be delivered up and cancelled." The order of Sub‑Registrar was set aside by the District Officer (Revenue) and was no more in the field. The matter is pending before the Civil Court and it appears that complainant has converted the civil dispute into criminal litigation. It is correct that ordinarily criminal and civil proceedings can proceed independently but in the instant case title, between the parties over the property in dispute is to be determined by the Civil Court and the complainant himself knowingly well that he cannot get the criminal case registered move the Sub‑Registrar and obtained an order which has been set aside by the higher authorities Therefore, allowing the F.I.R. or proceedings on the basis of order of Sub‑Registrar is clear misuse of process of Court. Therefore, I allow this petition and F.I.R. No.396, dated 5‑6‑2002 under sections 420, 468, 471, P.P.C. Police Station Gulberg, Lahore and proceedings thereon are ordered to be quashed. H.B.T./R‑125/L F. I. R. Quashed.