2007 PLP 1036 (MLD)

HASNAT AHMED KHAN, J.

Brief facts of the case are that petitioner married respondent No.4 namely Abdul Sattar who transferred a piece of land measuring 15 kanals and 10 marlas which is situated in Mauza Kund Ahmad Asar Tehsil Kehror Pacca, District Lodhran in favour of the petitioner as dower. Mutation No.322 was duly sanctioned in favour of the- petitioner on 13-3-2002. Unfortunately the relations between both of them could not go smoothly which resulted filing of the suits by them before the Judge Family Court Kehror Pacca. It is a case of the petitioner that in order to deprive the petitioner from her valuable property which had been mutated in her favour as a consideration of dower, respondent No.4 hatched a conspiracy preparing along with respondent No.3 a forged document of agreement to sell in favour of respondent No.3 who according to the petitioner is a close friend of respondent No.4. On account of said allegation she sought registration of case but after having failed to get the case registered with the police she approached the learned Additional Sessions Judge, Kehror Pacca for seeking directions for registration of the case. The said application was dismissed by the learned Additional Sessions Judge simply on the ground that as a civil suit by respondent No.3 against the petitioner regarding the same property is already pending remedy of registration of case is barred under sections 195 and 476, Cr.P.C. Said order was assailed before this Court through the above titled writ petition which was admitted to regular hearing while relying upon a Full Bench judgment of Lahore High Court reported as Muhammad Shafi v. Deputy Superintendent of Police (Malik Gul Nawaz), Narowal and 5 others (PLD 1992 Lahore 178).

5. In support of this petition the learned counsel for the petitioner has contended that a fraud of serious nature was committed by respondents Nos. 3 and 4 by forging an agreement to sell purportedly having been executed by the petitioner. Respondent No.1 had committed illegality. He adds that filing of the civil suit again cannot bar registration of criminal case as well as the criminal proceeding itself.

6. Learned counsel for respondents Nos.3 and 4 has ardently opposed this writ petition. He has submitted that respondent No.3 had got no concern with respondent No.4 and the petitioner who was facing litigation against respondent No.4 intentionally tried to dispose of the property in question and due to said reason she agreed to sell the said property in favour of respondent No.3. He has further submitted that original documents in dispute has not yet been produced in the Civil Court, rather photo copy of the same had been submitted along with the suit filed by respondent No.3 and the only intention of the petitioner is to get hold of said document through police so that it can be destroyed. While supporting the impugned order he has placed reliance upon a judgment reported as 1999 MLD 2097.

7. After hearing the arguments of both the sides and going through the record I have gathered that agreement to sell allegedly executed in favour of the petitioner shows that the sale amount of the land in question is fixed as Rs.5,00,000 but at the time of execution of said document payment of Rs.4,80,000 was allegedly made in favour of the petitioner and the rest of the amount of i.e. Rs.20,000 was to be paid till 15th of November, 2006. This kind of agreement on the face of it always creates a doubt specially when the payment of huge amount is made without execution of any independent receipt. Learned counsel for respondent Nos. 3 and 4 was specifically asked as to whether independent receipt of payment of amount of Rs.4,80,000 was executed or not, answer was in negative. Similarly on the instructions of his client learned counsel for the petitioner submitted that the possession of the land in question is still will respondent No.4. This fact also creates a doubt as to how without obtaining the possession of the land in question almost the whole consideration was paid to the petitioner by respondent No.3. A certified copy of the suit filed by respondent No.4 has also been placed on the record which shows that Mutation No.322, dated 13-3-2002 executed in favour of the petitioner had been challenged through said suit. Said fact also prima facie shows that respondent No.4 was not willing to depart from the ownership of said land which he had transferred to the petitioner as dower consideration. Said fact prima facie shows that on facts the petitioners had succeeded to show that cognizable offence has been committed by respondents Nos.3 and 4 and the petitioner was within her right to seek the registration of case. As the mere reading of the application has prima facie shown that commission of cognizable offence had shown to have been committed by the respondents, the respondent No.2 was under statutory duty under section 154, Cr.P.C. to register the case. As far as the plea of the respondents that in the presence of the suit 'filed by Rab Nawaz respondent against the petitioner on the same subject-matter is concerned F.I.R. could not be registered in view of the bar contained in sections 195 and 476, Cr.P.C. Suffice it to say that said controversy has been settled by the Full Bench of this Court in above titled case reported in PLD 1992 Lahore

178. The document which has been allegedly forged was prepared before the filing of the suit by respondent No.3 and same did not come into existence after filing of any civil suit as such sections 195(1)(c) and 476, Cr.P.C. do not create any bar against the registration of case. Sub-para 27 of the above mentioned judgment is quoted as under: "As the two interpretations of clause (c) of subsection (1) of section 195 of the Cr.P.C. are so evenly balanced, the one that does not deprive the ordinary Criminal Courts of their ordinary jurisdiction and persons of the right of redress must be adopted. On that view of the matter also, the view that clause (c) of subsection (1) of section 195 of the Cr.P.C. does not apply to cases in which the forgery was committed before the institution of a suit or other proceedings in which the forged document is produced or given in evidence should, in my opinion, be preferred." Similarly para. 29 of the said judgment is reproduced as under:-- "It was said that this view of clause (c) of section 195, subsection (1), will be harsh to innocent persons, and will provide dishonest private complainants with a weapon of oppression to harass them. The simple answer is that the offences mentioned in this clause are non-cognizable offences and the police has, before it can embark upon their investigation, to obtain the permission of a Magistrate. This, in my opinion, is sufficient protection against illegal harassment." It appears that while passing the impugned order the learned trial Court was not aware of the said judgment of the Full Bench of this Court. Consequently said order is hereby declared to have been passed illegally and unlawfully and with material irregularity, therefore, the same is hereby quashed and respondent No.2 is directed to entertain the application filed by the petitioner and if the contents of the same show the commission of cognizable offence he would proceed in accordance with law as enshrined in accordance with the provisions of section 154, Cr.P.C. With above said observation this petition is accepted without any order as to costs. M.H./N-34/L Petition allowed.