2007 PLP 769 (YLR)

SYED SAJJAD HUSSAIN SHAH J.

Abdul Rehman, petitioner, seeks quashment of. case F.I.R. No.21 dated 23-1-2004 registered under sections 420/ 468/471, P.P.C. at Police Station, City Sargodha by respondent No.3 against seven persons including petitioner stating therein that he is owner of Naimat Kada Hotel and assigned the duties of Manager to his nephew, the petitioner who forged the decree of the civil Court regarding the change of ownership of one Marla 36 square feet situated in Block No.4 Kachehry Bazar, Sargodha known as Naimat Kada Hotel in his own name and got it recorded in the revenue record in league with other co-accused.

2. It is contended by the learned counsel for the petitioner that respondent No.3 (complainant) has remedy to challenge the decree under section 12(2) of the Civil Procedure Code, 1908 as decree has validly been passed by the civil Court. Added that offences are non-cognizable and without obtaining permission from the Magistrate, the investigation cannot be carried out and that the civil litigation has been converted into criminal litigation just to pressurize the petitioner and take the revenge of second marriage contracted by the petitioner besides the marriage with the petitioner's daughter.

3. On the other hand learned Additional Advocate General, Punjab, as well as learned counsel for the complainant, respondent No.3, opposed the quashment by submitting that as the challan has already been submitted in the Court, the proceedings cannot be quashed at this belated' stage. According to the Investigating Officer, no such suit was filed in the Court and the decree is fake, fictitious and fabricated which fact was also verified by the learned Civil Judge whose signature is said to be on the order/decree. Further stated that when a cognizable offence is made out with non-cognizable offence, the police can investigate the case without the permission of Magistrate and the contention raised by the learned counsel for the petitioner requires thorough probe by the investigating agency. The disputed facts cannot be resolved in the constitutional jurisdiction, therefore, this Court has no jurisdiction.

4. I have heard the learned counsel for the parties as well as learned Additional Advocate-General and have gone through the available record which shows that the instant petition was filed on 21-7-2004 and the restraining order for arrest of the petitioner was passed on 22-7-2004 and since then the petitioner did not opt to appear before this Court despite of direction by this Court. This conduct of the petitioner alone disentitles him from any discretionary relief. Allegedly the petitioner prepared fake, forged and fabricated decree of the Court which does not exist on the record of the civil Court and this fact according to the prosecution, is also verified by Mr. Asrar Zada, Civil Judge, Fort Abbas vide his report dated 10-3-2004 \ in which he categorically stated that the decree produced by the petitioner is forged, fake and does not bear the signatures of the Civil Judge. The signatures of the Civil Judge too were forged. This fact was verified by the Civil Judge whose statement was recorded with the permission of the learned District Judge by the Investigating Officer which is on record. The contention that only remedy available to the complainant was to challenge the decree under section 12(2), C.P.C. has no force as it completes as under:-- "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."

5. The provisions of the referred section could only be invoked if a decree was obtained through a fraud or misrepresentation but in the present case, according to the prosecution, no such decree exists and even no suit was filed in the Court. The Investigating Officer formed this opinion after examining the entire record of the Court and recording the statement of the learned counsel shown to be appeared in the case, officials of the Court i.e. Reader and Ahlmad and the learned Civil Judge concerned. The contention of the learned counsel for the petitioner that non-cognizable offence cannot be investigated without the permission of the Magistrate has also no force. It is now well settled that where a case was registered relating to facts entailing commission of both cognizable and non-cognizable offences, section 155(2), Cr.P.C. is not attracted and police can investigate such a case without permission of the Magistrate. In me present case the F.I.R. was registered under sections 420/468/471, P.P.C. in which sections 468/471, P.P.C. are non-cognizable but section 420, P.P.C. is clearly a cognizable offence. Nevertheless there are two versions, one as given in the F.I.R. and the other has asserted, by the petitioner. In considering the question of quashing of criminal proceedings at the preliminary stage when evidence is yet to come, this Court has to take the allegation against the accused at their face value and accept the same in their entirety and then see if they do not constitute any offence for which a prosecution be warranted, the High Court in its limited jurisdiction under section 561-A, Cr.P.C. as well as under the constitutional jurisdiction will not embark upon inquiry to ascertain innocence or otherwise of the accused. If, therefore, the allegation discloses an offence, the case cannot be quashed merely because the accused denied the allegation and asserts that he has good defence which defence is yet to come. The matter before this Court cannot be said that the allegation made do not disclose an offence under the Penal Code. It is now well settled principle that where an alternate remedy is available, resort to inherent jurisdiction ought not to be had.

6. In view of the above discussions, this petition has no force and is hereby dismissed. H.B.T./A-250/L Petition dismissed.