P L D 2007 Lahore 534 (PLP)

SYED SHABBAR RAZA RIZVI, J.

The learned counsel submits that investigation in FIR No.123/2007 was stopped by the DIG, Faisalabad Range on the legal advice of DSP (Legal) dated 26-3-2007. The order of the DIG was called in question before the learned ASJ, Faisalabad, who agreed with the opinion of the DSP (Legal) and dismissed the application of the petitioner vide his order dated 23-4-2007. The same order has been challenged before this Court through the instant writ petition. Opinion of the DSP (Legal) is based on the fact that regarding the same property civil suit is pending before a Civil Court, therefore, criminal proceedings cannot take place in the presence of the pendency of a civil suit. In this regard, DSP as well as the learned ASJ has referred to PLD 2006 SC 771 and 1982 SCMR 988.

2. Learned counsel submits that opinion of the police officers as well as order of the learned ASJ are contrary to the law. Learned counsel referred to Muhammad Dildar Hussain v. Civil Judge/Judicial Magistrate, 2000 PCr.LJ 43, wherein it has been held that under section 156, Cr.P.C. police has a statutory right to investigate the circumstances of an alleged cognizable crime without requiring any permission from the Judicial Authorities. Briefly in the said case, the remand was refused by the learned Judicial Magistrate and the accused was discharged from the case registered under section 302/34, P.P.C. The said act was declared by the Court as beyond learned Magistrate's jurisdiction and also interference in the investigation which is a statutory right of the police under section 156, Cr.P.C. Similar view is expressed in PLD 2003 Karachi

309. Likewise learned counsel for the petitioner has also relied upon a view expressed by a learned Division Bench of the Karachi High Court, published in PLD 2005 Karachi

125. In the said judgment validity of investigation was challenged on the ground that the Investigating Officer was not competent to investigate the case under the relevant law. The contention was brushed aside by the learned Division Bench on the ground that incompetence of the Investigating Officer by itself would not invalidate the entire proceedings of investigation including that of recovery of narcotics. The learned Division Bench relied upon provisions of section 156(2), Cr.P.C., wherein it is provided that no proceedings of a police officer in any case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under section 156 Cr.P.C. to investigate.

3. In 1982 SCMR 988, proceedings in a complaint case before the competent Court were stopped in view of the pendency of the same matter before a Civil Court. Similarly in PLD 2006 SC 771, proceedings before the Court were stopped in view of pendency of the same matter before a Civil Court.

4. The case law cited by the learned counsel for the petitioner is not relevant. As noted above, 2000 PCr.LJ 43 relates to controversy where during the course of investigation an accused person was discharged. In PLD 2005 Karachi 125, the controversy related to the illegal or irregular investigation and its legal effect. The subject matter in the instant case is refusal of the investigation-whether to allow or not to allow investigation during the pendency of civil litigation between the parties on the same subject matter? In the same way, case law relied upon by the learned A.S.J. is also distinguishable. The expression "proceedings" used in PLD 2006 SC 771 and 1982 SCMR 988 relates to judicial "proceedings" or proceedings before a criminal Court not proceeding of investigation before an Investigating Officer.

5. Investigation of a case is not synonymous' or interchangeable with the "proceedings" before a competent Criminal Court. In Nawaz-ul-Haq Chohan v. The State, 2003 SCMR 1597 at page 1610, the Court categorically held that word "proceeding" mentioned in the proviso of section 3(1) of Law Reforms Ordinance, 1972 does not include F.I.R. Similarly, in Ch. Zahoor Elahi v. The State PLD 1977 SC 273, the Hon'ble Supreme Court held that "proceedings" includes all matters connected with and ancillary to the trial of a person charged before a Special Tribunal 'including the matter relating to grant of bail. In Mst. Karim Bibi v. Hussain Bakhsh PLD 1984 SC 344 it was held as under:-- "The term `proceedings' is a very comprehensive term, and, generally speaking, means a prescribed course of action for enforcing the legal right, and hence it necessarily embrace the requisite steps by which judicial action is invoked. A `proceeding' would include every step taken towards the further progress of a cause in Court or before a Tribunal, where it may be pending."

6. The above interpretation of term "proceedings" would show that PLD 2006 SC 771 and 1982 SCMR 988 as well as judgments referred to by the learned counsel for the petitioner are not applicable to the facts and circumstances of the instant petition. As noted above PLD 2006 SC 771 relates to criminal proceeding pending before a criminal Court and so is the case in 1982 SCMR

988. The cases mentioned by learned counsel for the petitioner relate to power of a Judicial Magistrate to discharge the accused during the course of investigation and legal effect when a case is investigated by an incompetent police officer. In the present case "proceedings" are not pending before a Court. The matter is still at investigation stage. The DSP opined that since the subject matter i.e. issue of forgery of the sale-deed is pending before the civil court and the same is also subject-matter of the F.I.R. No.123/07 dated 7-3-2007, therefore, investigation be stopped till decision of the civil Court. He has treated investigation before the Investigating Officer as "proceeding" before the court of law. Therefore, recommended stay of the same. He concluded his report dated 26-3-2007 as under:-- "The undersigned is of the considered opinion that keeping in view the observations of the Superior Court i.e. Hon'ble Supreme Court of Pakistan, the criminal proceedings should remain stayed during the pendency of civil litigation between parties on the same subject matter." The above view was accepted by the DIG as well as the learned A.S.J. hence passed the impugned order which is erroneous in law. 6-A. Pursuant to the above discussion, the order of the learned A.S.J./Ex-officio Justice of Peace dated 23-4-2007, is set aside. This writ petition is allowed. The concerned DIG and the Investigating Officer are directed to complete the investigation in accordance with law and submit the final report before the competent Court within stipulated period. Whether proceedings before the competent Court would be legal or desirable before the completion of the proceedings before the learned Civil Court, would be decided by the competent Court at that stage only. N.H.Q./A-129/L Petition allowed.