2010 PLP 722 (MLD)

SAGHEER AHMAD QADRI, J.

Muhammad Shahid Maqsood Bhatti, petitioner has filed this writ petition under Article, 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A, Cr.P.C. for quashment of case F.I.R. No.232 registered at Police Station Civil Lines, Rawalpindi on 18-3-2009 under section 420/468/471, P.P.C.

2. In order to dispose of this petition the contents of the F.I.R. above mentioned are reproduced here which was lodged by Sajid Hussain son of Muzaffar Hussain mentioning therein that his brother Shahid Hussain resident of House No.P-803, Street No.7, Mohallah Gilani Jaranwala, District Faisalabad at present resident of Rawalpindi was an officer of Grade-III in Muslim Commercial Bank, Kariana Bazar Branch, Faisalabad; that his brother was performing his duties on 19-8-2008 at the said Branch of MCB. Accused Shahid Maqbool son of Maqbool Ahmed resident of House No.508, F-Block, Gulistan Colony, Faisalabad got a fake and forged stamp papers from Rawalpindi Katchery in the name of the complainant's brother and subsequently he recorded an undertaking on it showing that an amount of Rs.21,72,000 was outstanding against the complainant/petitioner's brother Shahid Hussain and now he was demanding the said amount and was also harassing them. On this report the instant case was registered under sections 420/468/471, P.P.C.

3. Learned counsel for the petitioner contends the allegations against the petitioner are false. He never forged any document; that actually the complainant/respondent No.1, brother of Shahid Hussain obtained Rs.21,72,000 from the petitioner with the undertaking that he would send him England and subsequently he lodged report vide F.I.R. No.656, dated 7-10-2008 under section 365, P.P.C. against the petitioner at Police Station Peoples Colony, Faisalabad. However, said F.I.R. subsequently was cancelled vide order, dated 27-5-2009 passed by the learned Magistrate 1st Class, Faisalabad; that subsequently respondent No.1's brother issued cheques in order to fulfil his liability which were dishonoured and the petitioner lodged case F.I.R. No. 119, dated 13-2-2009 under section 489-F, P.P.C. at Police Station Civil Lines, Faisalabad; that respondent No.1 complainant being real brother of the accused in the said cases in order to counterblast the said F.I.Rs. lodged this false case against the petitioner at Rawalpindi; that there is no evidence available on record to connect the petitioner with the commission of any offence; that the original document i.e. the forged stamp paper was never secured by the Investigating Officer during investigation; that no report whatsoever has been procured about any forgery whatsoever; that according to the investigation so far conducted by the Investigating Officer no tangible evidence could be brought on record connecting the petitioner with any of the offences alleged against him; that the registration of the F.I.R. tentamounts abuse of process of law. Prayed that it be quashed accordingly.

4. On the other hand, learned A.A.-G. has opposed this petition on the grounds that the Investigating Officer has after investigation prepared the report under section 173, Cr.P.C. and is about to submit the same in the learned trial Court; that the Investigating Officer has recorded the statement of Stamp Vendor who clearly stated that he never issued any such stamp paper to the petitioner-accused.

5. I have heard the learned counsel for the parties and perused the record.

6. Allegedly the petitioner after procuring a stamp paper has shown a fake Iqrarnama allegedly executed by the complainant-respondent No.1's brother Shahid Hussain. The judicial record was summoned from the learned trial Court as report under section 173, Cr.P.C. has already been submitted in Court. If the report under section 173, Cr.P.C. is seen a copy of a stamp paper is annexed over which Iqrarnama is shown allegedly executed by Shahid Hussain son of Muzafar Hussain, brother of respondent No.1 complainant of this case. On the backside of this Photostat copy Endorsement No.1420 has been recorded by the stamp vendor according to which on 19-3-2008 Shahid Hussain son of Muzaffar Hussain allegedly purchased this stamp paper. No original document whatsoever was ever procured by the Investigating Officer nor it was recovered from the possession of the petitioner-accused. There is no mention on the record how and in which circumstances copy of Iqrarnama was secured by the Investigating Officer as no recovery memo is annexed with the file. This document was never sent to any of the Handwriting Expert nor any information was sought whether the petitioner-accused had ever signed that document. Allegedly the thumb-marked the stamp paper but his thump-impression is not visible and is not comparable nor the Investigating Officer ever tried to get compared the thumb-impressions of the petitioner-accused present on alleged documents. In these circumstances this F.I.R. and the subsequent investigation is just a nullity and abuse of process of law.

7. It is observed that the learned Judicial Magistrate on the basis of report under section 173, Cr.P.C. has charged the accused-petitioner on 6-1-2010 under section 468/471/506, P.P.C. In these circumstances, when the allegations levelled in the F.I.R. are itself vague and during subsequent investigation no document was secured by the Investigating Officer from the possession of the petitioner-accused and the document allegedly present on record is a Photostat copy which too is not in such a state that it can be relied upon.???

8. As far as the statement of the Stamp Vendor is concerned although he has stated in his statement under section 161, Cr.P.C. that he did not issue this document to Shahid Hussain, complainant-respondent No, l's brother but said Shahid Hussain has never been shown as witness by the Investigating Officer in this case. It seems that the Investigating Officer under some extraneous considerations without going through the record and the law on the subject has prepared the report under section 173, Cr.P.C. and submitted in Court. The learned Magistrate also did not apply his judicial mind while framing charge against the petitioner-accused.

9. In these circumstances, the registration of the case under reference and subsequent investigation as well as submission of report under section 173, Cr.P.C. and the charge framed by the learned Judicial Magistrate are clearly the abuse of process of law, therefore, while exercising powers under section 561-A, Cr.P.C. read with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the F.I.R. subject matter of this petition and the subsequent proceedings are quashed, being unlawful.

10. A copy of this order be transmitted to the learned Sessions Judge, Rawalpindi to circulate it amongst the Judicial Magistrates with a direction that before framing the charge against the accused they should first go through the police file and after going through the report under section 173, Cr.P.C. coupled with the documents annexed as well as the statements of the witnesses recorded under section 161, Cr.P.C. if a prima facie case is made out. H.B.T./M-124/L????????????????????????????????????????????????????????????????????????????????? Proceedings quashed.