2012 P Cr (PLP)

CH. MUHAMMAD YOUNIS, J.

Briefly stated the facts relevant for the disposal of the instant writ petition are that Muhammad Siddique father of respondent No.3 owned land measuring 19 kanals, 13 marlas in Chak No.366/W.B. Dunyapur District Lodhran which was used to be cultivated by Ghulam Muhammad uncle of the respondent No.3. The father of the petitioner and father of respondent No.3 were real brothers. Muhammad Siddique died about two years ago. After his death the respondent No.3 tried to cultivate the land owned by his father at which the petitioner and the co-accused injured him and later on he came to know that the petitioner Muhammad Tariq, Mukhtar Ahmad and Yasin had prepared a forged agreement to sell showing the land of Muhammad Siddique to have been agreed to be sold to the petitioner etc. Having come to know of the agreement to sell, dated 31-5-2008 the respondent No.3 lodged F.I.R. No.235 dated 11-7-2011 under sections 420/468/471, P.P.C. for preparing a forged agreement to sell and committing fraud with the legal heirs of the deceased Muhammad Siddique. After registration of the case the petitioner was arrested and was produced before the learned Judicial Magistrate for grant of physical remand for 14 days in order to recover the forged agreement to sell from him but the learned Judicial Magistrate declined to grant physical remand and sent the petitioner to judicial lock up merely on the ground that the accused had filed a suit for specific performance of the agreement to sell and its genuineness was yet to be determined by the Civil Court. The complainant/respondent No.3, filed a criminal revision against the order passed by the learned Judicial Magistrate which was accepted by the learned Additional Sessions Judge vide judgment dated 23-7-2011 with the observation that criminal and civil proceedings could be initiated simultaneously so he set aside the order of the learned Judicial Magistrate.

2. The learned counsel contends that the petitioner had filed a suit for specific performance on the basis of the said agreement to sell and its genuineness was yet to be determined by the Civil Court. He maintained that the criminal proceedings are liable to be stayed till the decision of the Civil Court and if the agreement is proved to be forged only then the criminal proceedings could be initiated. The learned Judicial Magistrate was justified in refusing the grant of physical remand. The learned counsel prayed for setting aside the impugned order passed by the learned Additional Sessions Judge and prayed to restore the order dated 15-7-2011 passed by the learned Judicial Magistrate.

3. I have considered the arguments advanced by the learned counsel for the petitioner and have gone through the impugned order. The legal question involved in this Writ Petition is as to whether the criminal proceedings can be initiated where civil proceedings are pending in respect of the same document which is subject-matter of the civil suit.

4. As per dictums of the superior Courts there is no hard and fast rule to suggest that the criminal proceedings cannot be initiated during the pendency of a civil suit. I rely on 2008 SCMR 839 (Seema Farid and another v. The State and another in which it was observed that criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction had been instituted, it had never been considered to be a legal bar to the maintainability of criminal proceedings which could proceed concurrently because conviction for a criminal offence was altogether a different matter from the civil liability. Similarly, I would like to refer to 2006 SCMR 512 (Rafique Bibi v. Muhammad Sharif and others) on the subject in which the apex Court observed that no bar existed to initiate both the proceedings i.e. civil and criminal simultaneously. Since the agreement to sell (on the basis of which the suit for specific performance was filed by the petitioner) is alleged to be a forged document having never been executed by the father of the complainant so there was nothing to prevent the complainant to initiate the criminal proceedings against the petitioner and the co-accused who allegedly prepared the forged document 3-years before the filing of the suit. It would not be incongruous to mention here that father of the complainant who happened to be uncle of the petitioner died more than 2 years ago but during his life time no such suit was filed. The petitioner if found guilty of preparing a forged document to deprive the complainant and his brothers and sister of their valuable property cannot be given benefit of his own wrong just on the ground that the accused filed a suit for specific performance on the basis of a forged agreement to sell. The civil suits normally take a long time stretching over several years to conclude and if some one has committed a cognizable offence he cannot be spared and allowed to enjoy the fruit of his own wrong for a long time and deprive the aggrieved person of his valuable rights. The crux of the above discussion is that the learned Judicial Magistrate could not refuse grant of physical remand of the accused merely on the ground of pendency of a civil suit. So the learned Additional Sessions Judge has rightly passed the impugned order which suffers from no legal infirmity; illegality or perversity. Both the proceedings can be carried out simultaneously. The pendancy of civil suit creates, no legal bar at all to initiate criminal proceedings. In these circumstances the impugned order warrants no interference by this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 so the writ petition, is hereby dismissed. N.H.Q./M-368/L Petition dismissed.