2002 PLP 3701 (YLR)

Malik Waqar Saleem for Petitioner Date of hearing: 10th October, 2001 Through this Constitutional petition registration of criminal case is sought against respondents Nos.4 to 6 under sections 402/468/406/471, P.P.C.

2. The facts of the case are that petitioner entered into an agreement to sell of a shop for Rupees six lacs in favour of his maternal grand father and he paid earnest money of Rupees two lacs. The agreement to sell was executed by Muhammad Anwar respondent No.4 on 15‑6‑1998 and the remaining amount was to be paid on 15‑1‑1999. The possession of the shop was also delivered to the petitioner and it is further alleged that the petitioner was also constituted general attorney for completion of sale‑deed regarding the said shop but the said power of attorney was cancelled and subsequently Muhammad Anwar respondent No.4 sold the said shop to Muhammad Iqbal respondent No.5, his real brother‑in‑law by constituting his real brother Muhammad Aslam respondent No.6 as general attorney on 30‑12‑1998. Therefore, he committed a fraud with the petitioner and deprived him of huge amount. He moved an application to S.S.P, Gujranwala for registration of criminal case but his grievance has not been redressed. Admittedly the petitioner has also filed a suit for specific performance against respondents Nos.4 to 9 regarding the same shop.

3. Report and parawise comments were called for from S.S.P, Gujranwala who has stated in his report that inquiry was conducted into the contents of the application moved by the petitioner through Police Station Civil Line, Gujranwala by summoning both the parties and it was found that Muhammad Akram petitioner has filed a civil suit against Muhammad Anwar for return of his amount and to get possession of the shop, therefore, due to pendency of civil suit, case was not registered.

4. Learned counsel for the petitioner has argued that despite the pendency of a civil suit between the parties but criminal case can also be registered and it is statutory obligation of the S.H.O. to register a case if cognizable offence has been reported. He has placed reliance on Mst. Naseem Bibi v. Sub Registrar/MIC, Lahore (2000 YLR 47), Muhammad Imran v. The State (1998 YLR 50), Ashiq Hussain v. The State and 2 others (1998 PCr.LJ 1269), Mst. Malka Jan v. I.‑G. Police N.W.F.P and 2 others (2000 PCr.LJ 320), Sajjad Hussain v. The State (PLD 1997 Karachi 165), Mahabat Khan v. S.S.P and 5 others (1999 MLD 2243), Muhammad Aslam and others v. The State, and others. (2000 MLD 1687) and Saeed Ahmad and others v. Naseer Ahmad and others (PLD 2000 Lah. 208).

5. I have given due consideration to the contentions raised by the learned counsel and gone through the case‑law referred to above.

6. There is no cavil to the proposition that registration of criminal case is statutory duty of the police under section 154, Cr.P.C. whenever, commission of cognizable offence is reported but in the instant case the petitioner has filed a civil suit for specific performance and to claim his earnest money paid to respondents/owners of the shop. The agreement to sell between the parties has also taken care of the defence for non‑performance of the agreement in these words:-- He cancelled the power of attorney executed by him in the name of the present petitioner by playing fraud or for non‑fulfillment of the agreement on the part of the petitioner or the vendee is a matter to be determined by the Civil Court where litigation is already pending and registration of criminal case in these circumstances of the present case is dependent on the result of the civil litigation. The case‑law referred to by the learned counsel for the petitioner is not applicable to the facts and circumstances of the present case. Therefore, the petition is dismissed being devoid of any force. H.B.T./M‑1501/L Petition dismissed.