2011 MLD 613 (PLP)

MIFTAH-UD-DIN KHAN, J.

Petitioners Muhammad Waheed etc. have filed this petition under section 561-A, Cr.P.C. for quashment of F.I.R. No.1224 dated 4-11-2010 of Police Station City, Mansehra.

2. The brief background which resulted. in presentation of the present petition are that respondent Shoukat Ahmad made a written report to D.P.O. Mansehra to the following effect:-- "We sold two Kanals of land to Mr. Naseer Ahmad and brothers sons of Mr. Muhammad Miskeen, resident of Tehsil Debgran but the physical possession had not been given to him, only transfer in record had been made. The buyers taking advantage of our absence in Mansehra, erected/encroached upon the Major front portion measuring 63 feet on the land illegally on the grounds that it had been promised in the written down payment receipt. The buyers submitted the receipt in the Court Mansehra in a case filed by co-owner in the property, which is forged in the original by themselves. According to P.P.C., Articles (sic) 468 and 471 is a fraud/tampering (sic) punishable by two years. It is requested that formal inquiry into the tampered document may be ordered please. Yours Obediently, Shaoukat Ahmad 855 CPWDH Society, St. 40, Islamabad, Mobile No. 0331-8029466, dated 16-10-2010."

3. On the basis of the above mentioned report, case F.I.R. No.1224 dated 4-11-2010 was registered against the present petitioners. As the petitioners were apprehending their arrest in the present case, therefore, they applied for bail before arrest to the Court of Session and also filed this petition seeking quashment of F.I.R..

4. Mr. Iftikhar Alam Tanoli, Advocate, the learned counsel for the petitioners contended that from the contents of written report no offence under section 420 is made out and the written report is based on a photo receipt, therefore, an F.I.R. could not be registered in the absence of original receipt in respect of offences under sections 468 and 471, P.P.C., which are non-cognizable offences and has to be dealt with in accordance with provisions of section 155, Cr.P.C. He further submitted that the law against the petitioners has been put wrongly and illegally in motion in the given circumstances, hence, the F.I.R. against the petitioners amounts to abuse and misuse of process of law, hence, be quashed. He placed reliance in PLD 2005 Lahore 386, 2005 YLR 1879 and 2000 SCMR 122.

5. The respondent who is present in person contended that a receipt was written in connection with land transaction between the parties which has been tampered with and forged by the petitioners, therefore, petitioners have committed tampering and forgery, hence, the report was properly lodged against the petitioners.

6. Perusal of written report submitted by the respondent clearly shows that no offence at all under section 420, P.P.C. is prima facie established against the petitioners. At the most, the petitioners could be proceeded against under sections 468 and 471, P.P.C., provided the original receipt is available before police or the same has been used as genuine document dishonestly and fraudulently. As the offences under sections 468 and 471, P.P.C. are non-cognizable offences, therefore, for recording information of commission of a non-cognizable offence, entry should have been made in `Roznamcha' or `Station Diary". If the police would deem it fit to initiate investigation, then they had to proceed under section 155, Cr.P.C. and to obtain order from Magistrate and if any arrest was to be effected then it could only be made after obtaining arrest warrant under section 155(3), Cr.P.C. In case the alleged forged receipt is produced by the petitioners before a Court of law to be used as genuine document then the Court concerned would make a complaint against the petitioners under section 195(3), Cr.P.C. and not the respondent. In the present case, on the basis of report of respondent in the absence of original receipt F.I.R. under section 154, Cr.P.C. could not have been registered straightaway against the petitioners, thus the S.H.O. has abused and misused the process of law by violation of the clear cut provisions of Criminal Procedure Code. The S.H.O. has not followed the procedure laid down in section 155, Cr.P.C. and has straightaway registered the F.I.R. against the petitioners resulting in causing illegal harassment and great injustice to petitioners. In such like circumstances main consideration to be kept in mind would be whether the continuance of further proceedings against the petitioners would be futile exercise, wastage of time and abuse of process of Court or not. In the given circumstances, the original receipt was not available before police and the same has not been used as genuine before any Court of law, therefore, continuance of further proceedings against petitioners is baseless and unjustified. The dispute between the parties is entirely of civil nature which on account of ulterior motive on the part of respondent to compel the petitioners to abandon their claim over the plot had been converted into criminal proceedings, thus, further proceedings on the basis of impugned F.I.R. would be abuse of process of law, a sheer wastage of time and cause great injustice to petitioners against which preventive measures have to be taken by the Court in exercise of inherent powers in the interest of justice. Thus, in order to prevent the ends of justice from being defeated through the impugned proceedings, the present petition is allowed and the F.I.R. lodged against the petitioners is quashed in exercise of powers under section 561-A, Cr.P.C. in the light of case-law reported in 2000 SCMR

122. H.B.T./421/P?????????????????????????????????????????????????????????????????????????????????????? F.I.R. quashed.