1997 P Cr (PLP)

Ch. Muhammad Sarwar for Petitioner. Date of hearing: 13th June, 1996. The petitioner has invoked the inherent power of this Court under section 561-A of the Code of Criminal Procedure for the quashment of proceedings in a case pending in the Court of learned Magistrate, 1st Class, Model Town, Sub-Division, Lahore.

2. The brief facts are that a case under sections 471/406 and 468/420, P.P.C. was registered against the petitioner and others for cheating the complainant i.e. respondent No.2 and his wife Mst. Salma Sultana to deprive them of a Quarter situated in Township. In this respect it is contended that one Muhammad Yasin i.e. the allottee of the Quarter entered into an agreement for sale of aforesaid Quarter with Mst. Salma Sultana and further executed a power of attorney in favour of her husband i.e. complainant on 16-9-1975. The allottee had handed over the receipts for the payment of instalments by him from 1969 to 1975 and it was agreed that the rest of the instalments were to be deposited by Mst. Salina Sultana i.e. the proposed vendee. In pursuance of the aforesaid agreement the rest of the instalments were paid by Mst. Salma Sultana and after payment of the last instalment, the vendee applied to the Deputy Director, H.&.M., Township, Lahore for the transfer of quarter in her name. A notice was issued in the newspaper inviting objections against this transfer whereupon Mst. Rifiat Sultana widow of Riaz Ahmad filed an objection that the documents in favour of Mst. Salma Sultana and the complainant were cancelled vide another document dated 12-4-1984 in favour of Rafia Sultana and her husband Riaz Ahmad. The documents were alleged to be forged with the help of the petitioner, who was shown to be the marginal witness in the aforesaid documents.

3. The learned counsel for the petitioner has submitted that the latter was signatory to the documents as a witness and as such he was neither a beneficiary of the alleged fraudulent transaction nor he had any mens rea to commit the offences of cheating and forgery. In this regard, it was further contended that the effected parties have already gone into civil litigation and some of the cases are pending in respect of the disputed documents, whereas one of the case has already been decided. It was, therefore, urged that the matter was primarily of civil nature and as such the prosecution of the petitioner in the Courts below would tantamount to misuse of the process of Court of law. Reliance was placed on 1987 SCMR 795.

4. In the above context, it was contended that a petition under section 249-A, Cr.P.C. was moved in the Court of learned Magistrate, but the same was dismissed as premature vide order, dated 5-3-1994. A revision petition against, the aforesaid order, dated 5-3-1994 came up before Rao Hamid Mukhtar Khan, the learned Additional Sessions Judge, Lahore, who also dismissed the same on 16-5-1996. In this respect it was contended that the order passed by both the Courts below was erroneous, and therefore, the petitioner has invoked the inherent jurisdiction of this Court to undo justice being done to him.

5. I have considered the foregoing submission at the Bar. The order of the learned Additional Sessions Judge referred to above shows that a Writ Petition No. 8407 of 1990 was earlier filed in this Court for the quashment of F.I.R. No. 108 of 1990 i.e. out of which the present case had arisen. That writ petition was dismissed by my learned brother Falak Sher, J. vide his Lordships order, dated 20-3-1991. However, this fact was not disclosed in the present writ petition. The learned counsel for the petitioner, however, submitted that the dismissal of the previous writ petition was not mentioned because it related to his co-accused and that the petitioner was not a party to it. This is hardly a good ground to suppress the facts which related to the F.1.R. in dispute out of which the present proceedings are continuing. Likewise the mere fact that certain civil suits are pending qua the documents about which forgery and cheating is allegedly committed would not by itself create a ground for the quashment of criminal proceedings until and unless it is shown through some evidence that the charge against the petitioner was groundless or that procedure in the Court below would result into miscarriage of justice. In this context, it may be observed that the writ petition dismissed by my learned brother Falak Sher, J. related to the quashment of the present F.I.R. and. the investigation conducted in that case led to the prosecution of the present petitioner alongwith his co-accused for which the Investigating Agency had collected evidence which is yet to be examined at the trial it cannot be readily said that the matter was purely of civil nature and that there was not mens rea on the part of the petitioner to commit the offences for which he stands charged in the trial Court. The dismissal of the application under section 249-A, Cr.P.C. would lead to a strong impression that the prosecution has a good case worth of judicial test. In such a situation, deeper appreciation about the merits of the civil litigation cannot be gone into until and unless the relevant material is placed on record in the Court below during trial. As such it will be misconceived to say that the petitioner will be victimized due to the abuse of the process of Court or that it will lead to miscarriage of justice if the trial is allowed to be proceeded under the normal procedure of criminal law in the Courts below.

6. The petition being merit less is dismissed in limine Criminal Miscellaneous Nos. l and 2 of 1996 Since the main petition has been dismissed in limine, these applications ire also disposed of, N.H.Q./A-129/L Petition dismissed in limine.