2011 P Cr.

L J 408

[Lahore]

Before Muhammad Anwaarul Haq, J

AKBAR ALI---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 10279-B of 2010, decided on 15th October, 2010.

(a) Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S. 420/468/471---Cheating and dishonestly inducing

delivery of property, forgery for purpose of cheating, using as genuine a forged document---Pre-
arrest bail, refusal of---Accused was nominated in the F.I.R. with specific allegation of
committing fraud with the complainant and preparing a forged power of attorney regarding a
huge property in his favour---Investigation of the case had revealed that the alleged executants of
the said power of attorney had not executed the same and that two of them resided abroad and
they had not even visited Pakistan for the last ten years---Agreements showing money
transaction between the parties could not be considered at this stage, as that would amount to
deeper appreciation of the controversy between the parties---No mala fide or ulterior motive on
the part of complainant or the police could be pointed out by the accused for his false
involvement in the case---Sufficient incriminating material existed on record showing, prima
facie, culpability of accused in the crime---Pre-arrest bail was denied to accused in
circumstances.
Syed Lakhat-e-Hussnain v. State 2010 SCMR 855 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 497/498---Bail---Assessment of evidence---Principle---Authenticity of documents placed

on record has to be determined at the first instance by Trial Court after recording evidence---
Court seized with the matter of bail has only to see whether accused was connected with the
commission of crime or not and for that purpose, only tentative assessment of evidence has to be
made and deeper appreciation of evidence and circumstances appearing in the case at bail stage,
is neither desirable nor permissible.

Syed Lakhat-e-Hussnain v. State 2010 SCMR 855 ref.

Muhammad Aqeel Wahid Chaudhary with the Petitioner in person.

Muhammad Ishaq, Deputy Prosecutor-General with Muhammad Arham, S.I./S.H.O. with

Muhammad Ashraf S.I. (Inv.) for the State.

Ch. Iftikhar Ahmad for the Complainant.

ORDER

MUHAMMAD ANWAARUL HAQ, J.---Through this petition Akbar Ali, petitioner seeks pre-
arrest bail in case F.I.R. No. 554, dated 1-5-2010, registered at Police Station North Cantt.
Lahore in respect of offences under sections 420, 468 and 471, P.P.C.
2. The learned counsel for the petitioner contends that the petitioner is innocent, he has not
committed any crime and has falsely been involved in this case due to mala fide intention of the
complainant; that Power of Attorney mentioned in the F.I.R. is a registered document and
presumption of truth is attached with the same; that the petitioner is a bona fide purchaser of
property from the legal heirs of Himmat Khan and huge amqunts have been paid to them by the
petitioner, therefore, sections 420, 468 and 471, P.P.C. do not attract in this case; that the
offences against the petitioner do not fall within the prohibitory clause of section 497, Cr. P. C.
and in fact the complainant party has committed fraud with the petitioner.

3. On the other hand, learned Deputy Prosecutor-General assisted by the learned counsel for the
complainant vehemently contesting this bail application maintains that pre-arrest bail is an
extraordinary relief and deeper appreciation of the merits of the case at this stage is not proper;
that offence against the petitioner is proved on the record as some of the executants shown in the
Power of Attorney, subject-matter of the F.I.R., were not even present in Pakistan when this
forged and fake Power of Attorney has been executed; and that the petitioner has committed a
heinous offence, hence, he is not entitled for extraordinary relief of pre-arrest bail.

4. Heard. Record perused.

5. Petitioner is nominated in the F.I.R. with specific allegation of committing fraud with the
complainant and that of preparing a forged Power of Attorney regarding a huge property in his
favour. Statement of Muhammad Zul-Kufal son of Himmat Khan recorded by Investigating
Officer shows that Power of Attorney mentioned in the F.I.R. was never executed by him or even
by his mother and sisters. During the investigation, it has also been transpired that Mst. Durr-e-
Shehwar and Mst. Naila, two alleged executants of Power of Attorney reside abroad and they
have not even visited Pakistan for the last about ten years. Many agreements referred by the
learned counsel for the petitioner showing money transactions between the parties cannot be
considered at this stage, as that amounts to the deeper appreciation of the controversy between
the parties. Here, I respectfully refer an observation of Hon'ble Supreme Court of Pakistan in the
case of Syed Lakhat-e-Hussnain v. State (2010 SCMR 855):-

"We are not likely to make any comments on the authenticity of the documents placed on
record, as at the first instance it is for the trial Court after recording of evidence to
determine the authenticity of the same, Court had only to see whether accused was
connected with the commission of crime or not and for that purpose, only tentative
assessment of evidence was to be made and deeper appreciation of • evidence and
 circumstances appearing in the case were neither desirable nor permissible at bail stage."

The petitioner is unable to point out any mala fide or ulterior motive on the part of the
complainant or the police for his false involvement in this case. There is sufficient incriminating
material available on the record showing prima facie culpability of the petitioner in the alleged
crime; hence, petitioner is not entitled to the extra ordinary relief of pre-arrest bail.

6. This petition is, therefore, dismissed and ad interim pre-arrest bail already allowed to the
petitioner by this Court vide order dated 20-9-2010 is hereby recalled.

7. It is, however, clarified that observations made herein above are just tentative in nature and
strictly confined to the disposal of this bail petition.

N.H.Q./A-244/L Pre-arrest bail refused.

2010 P Cr. L J 1871

[Lahore]

B e f o r e Manzoor Ahmed Malik, J

Sh. UMAR FAROOQ---Appellant

Versus

MEHFOOZ ELAHI---Respondent
Criminal Appeal No. 123 of 2010, decided on 14th July, 2010.

(a) Penal Code (XLV of 1860)---

----S. 420/467/468/471--- Criminal Procedure Code (V of 1898), S.417---Cheating, forgery of

valuable properly etc., forgery for cheating and using as genuine a forged document---Appeal
against acquittal---Accused had allegedly prepared a forged power of attorney and deprived the
complainant party of their valuable property---Trial Court had given valid and convincing
reasons for acquittal of accused---Judgment of acquittal could only be interfered if the reasons
given for acquitting the accused by the court were arbitrary, capricious, fanciful or non-existent--
-Nothing in the case could be deemed to be arbitrary, capricious, fanciful or against the record to
warrant interference in the judgment of acquittal---No grave miscarriage of justice had been
caused due to acquittal of accused---No misreading or non-reading of prosecution evidence had
been made by the Trial Court---Appeal against acquittal was dismissed in limine in
circumstances.

Iftikhar Hussain and others v. The State 2004 SCMR 1185; Haji Amanullah v. Munir
Ahmad and others 2010 SCMR 222; Jahangir v. Amimullah and others 2010 SCMR 491
and Bashir Ahmad v. Fida Hussain and 3 others 2010 SCMR 495 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 417---Appeal against acquittal---Scope and extent---Acquittal of accused by a competent

court of the charge after a regular trial confers upon him double presumption of innocence---
Such acquittal cannot be interfered with until ,and unless found to be arbitrary, fanciful,
perverse or against the record and leading to grave miscarriage of justice.

Iftikhar Hussain and other v. The State 2004 SCMR 1185; Haji Amanullah v. Munir
Ahmad and other 2010 SCMR 222; Jahangir v. Amimullah and others 2010 SCMR 491 and
Bashir Ahmad v. Fida Hussain and 3 others 2010 SCMR 495 ref.

Arif Mehmood for Appellant.

ORDER

MANZOOR AHMED MALIK, J.---Sheikh Umar Farooq, appellant filed this appeal
against the judgment dated 22-1-2010, passed by the learned Judicial Magistrate Section
30, Taxila District Rawalpindi whereby, the learned Magistrate acquitted respondents
Nos.1 and 2 from the charge in case F.I.R. No.268 dated 25-6-2005 registered under
sections 420/467/468/471, P.P.C. at Police Station Taxila, District Rawalpindi.

2. Brief facts of the case are that the appellant moved an application (Exh-PA) for
registration of case against respondents Nos. 1 and 2 namely Mehfooz Elahi and Talat
Masood respectively with the allegation that he along with his close relatives is owner in
possession of land measuring eighteen Marlas situated in Khasra No.1436/1437, Khatoni
No.537/540, Khewet No.293 at Mauza Ghaila Khurd, Tehsil Taxila and after the purchase
of said land, they constructed houses and shops on the same. Out of said land, nine Marlas
were purchased by Sheikh Muhammad Yousaf (father of the complainant/appellant) and
Sheikh Noor Elahi (real paternal uncle Taya of the complainant) through registered Sale -
deed No.1417 dated 1-1-1958 from original owners Mst. Ajaib and Mir Haider whereas,
remaining nine Marlas were purchased by Sh. Muhammad Saeed (real brother of the
complainant) from Mehfooz Elahi and Talat Masood through registered Sale-deed No.2694
and 2695 dated 13,-8-1996. After the purchase of said land, the complainant and his
relatives made constructions and obtained connections of electricity and sui gas etc.
However, respondents Nos.1 and 2, seeing the increase in the price of the land, with mala
fide intention to usurp the land, filed, various false applications against the complainant
and his relatives but could not succeed. Thereafter, they instituted a false civil suit against
the complainant and his brother which was later on withdrawn. Complainant side also
instituted a civil suit against respondent No.1 wherein, an injunction order was passed by
the learned Civil Judge, Rawalpindi respondent No.1 also filed application in the Anti-
Corruption Establishment against the complainant party which were dismissed after
inquiry. Thereafter, Mehfooz Elahi respondent No.1 through a bogus general power of
attorney, in presence of injunction order, got transferred the said land in his favour through
registered Sale-deed No.9768 dated 4-9-2004, hence, this case.

3. The police, after investigation, submitted the report under section 173, Cr.P.C. Accused
persons/respondents Nos.1 and 2 were summoned, formal charge was framed against them
to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined four witnesses i.e. P.W.1 (Sh. Umar
Farooq, complainant), P.W.2 (Sagheer Ahmad. Girdawar). P.W. 3 (Muhammad Fayyaz S.-
I.) and P.W.4 (Faqir Hussain S.-I.). In their statements recorded under section 342, Cr.P.C,
respondents' Nos. 1 and 2 denied the charge.

5. Learned counsel for the appellant, in support of this appeal, contends that t he impugned
judgment is result of misreading and non-reading of the evidence available on the file; that
there is sufficient incriminating material available against respondents Nos.1 and 2 for their
conviction in this case; that non-implication of legal heirs of Muzaffar Khanum etc. is not
fatal for the case of the prosecution; that the respondents Nos. 1 and 2 have prepared a
bogus and forged power of attorney and deprived the complainant side of their valuable
property; that the respondents Nos.1 and 2 may be punished in accordance with law.

6. I have heard the arguments of the learned counsel for the appellant and perused the
judgment passed by the learned trial Court. Valid and convincing reasons have been given
by the learned trial Court for the acquittal of respondents Nos.1 and 2. Judgment of
acquittal can only be interfered if reasons are arbitrary fanciful or non-existent whereas, in the
instant case, the situation is altogether different. In paragraph No.11, the learned trial Court has
given reasons for acquittal of respondents Nos. 1 and 2 which are as under:-

"11. In view of above discussed depositions made by P.Ws. and perusal of file make one
thing very clear that there was dispute between the complainant and accused about landed
property. Accused Mehfooz Ellahi also got registered a case F.I.R. No.469 dated 15-9-
2001 under section 420,468,471, P.P.C., Police Station Taxila against the complainant of
this case Sh. Umer Farooq and Sh. Muhammad Saeed for the forgery of. Jamabandi and
registered sale deed wherein Shaikh Umer Farooq etc. were acquitted vide order dated
23-9-2008 passed by learned J. Magistrate Sec 30, Taxila. A civil suit for declaration and
permanent injunction titled as Sh. Muhammad Saeed v. Muzaffar Khanum etc. is also
pending adjudication in the court of Senior Civil Judge, Rawalpindi wherein mutation
Nos.10366, 10367 and 10368 dated 31-7-2000 has been challenged and cancellation
thereof has been prayed being result of fraud, illegality etc. photocopy of the plaint of
said suit is available with the file which was produced by complainant before the police
during investigation. As per allegation made in the F.I.R. and statement of accused
recorded before this court, it is manifest that 9-marlas of total land measuring 18-marlas
was admittedly in the ownership of Meer Ahmad and after his death the same was
devolved upon his widow Mst. Ajaib and his son Meer Haider. It has been further alleged
by complainant that the said Mst. Ajaib and Meer Haider sold the said land through
registered Sale-deed No.1417 dated 1-9-1958 to his father Sh. Muhammad Yousaf and
 his uncle Sh. Noor Ellahi, however, said registered sale-deed could not be incorporated in
the Revenue Record, because the same was being used for residential purposes, however,
accused Mehfooz Ellahi got attested the inheritance mutation No.10366, 10367 and
10368 dated 31-7-2000 in favour of legal heirs of Meer Haider namely Muzaffar Khanum
etc. and on the basis of said mutation, general power of attorney was executed in favour
of accused Mehfooz Ellahi by Muzaffar Khanum etc. and on getting knowledge of the
same, when accused instituted civil suit against him, complainant and others instituted
civil suit in the civil Court, Rawalpindi. It is the civil Court Rawalpindi which is to
decide the fate of the dispute between the parties. If mutation Nos.10366, 10367 and
10368 dated 31-7-2000 are not declared as null and void as prayed by the complainant, at
the disposal of said civil quit 'by learned Civil Court, Rawalpindi, then all the subsequent
documents including general power of attorney etc. shall be considered genuine and
legal. It is well settled law that any aggrieved person can avail civil as well as criminal
remedies simultaneously; however, conviction of accused should be based on established
version of the prosecution through evidence, beyond any shadow of doubt. Liberty of any
person cannot be jeopardized on the presumption that the document complained as forged
one in the F.I.R. would be declared null and void by Civil Court also. The complainant
has not made any application for registration of case against the said legal heirs of Meer
Haider namely Muzaffar Khanum etc. who allegedly got attested the said inheritance
mutation in connivance with accused Mehfooz Ellahi and then got registered general
power of attorney in favour of accused Mehfooz Ellahi. If the complainant feels
aggrieved against the accused Mehfooz Ellahi and Taehat Masood who allegedly
prepared forged documents based upon the said general power of attorney, then the
behaviour of complainant regarding non-implication of said Muzaffar Khanum etc. is
beyond understanding by any prudent mind, which lead to only conclusion that accused
cannot be convicted, hence, prosecution has failed to establish its case against the
accused persons beyond reasonable doubt, benefit of which must go to the accused
persons. Hence, the accused are hereby acquitted."

7. Even otherwise, when a court of competent jurisdiction acquits an accused of the charge after
a regular trial, then double presumption of innocence is attached to the said acquittal and until
and unless that is not found arbitrary, fanciful, perverse, against the record and has led to grave
miscarriage of justice, the said acquittal cannot be interfered with. Reference can advantageously
be made to the case of Iftikhar Hussain and others v. The State (2004 SCMR 1185) wherein the
Hon'ble apex Court has held as under:--

"13. It is well-settled principle of criminal administration of justice that when an accused

is acquitted of the charge, he enjoys double presumption of innocence in his favour and
Courts, seized with acquittal appeal under section 417, Cr.P.C. are obliged to be very
careful in dislodging such presumption. Undoubtedly, two views are always possible
while appreciating the evidence available on record, therefore, for such reason and in
order to avoid the multiplicity of litigation, it is always insisted that the Court "should
 follow the recognized principles for interference in the acquittal judgment as held in the
case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11
that the Appellate Court seized with the acquittal appeal under section 417, Cr.P.C.
is competent to interfere in the order challenged before it provided it has been
established that the trial Court has disregarded material evidence or misre ad such
evidence or received such evidence illegally….."

In this regard further reliance is placed on the case of "Haji Amanullah v. Munir Ahmad
and others" (2010 SCMR 222), wherein at page 226, the Hon'ble Supreme Court has been
pleased to hold as under:-

"4……It is well-settled by now that in an appeal "the Court would not interfere with
acquittal merely because reappraisal of the evidence it comes to the conclusion
different from that of the Court acquitting the accused provided both the
conclusions are reasonably possible. If however, the conclusion reached by that
Court was such that no reasonable person would conceivably reach the same and
was impossible then this Court would interfere in exceptional cases on overwhelming
proof resulting in conclusive and irresistible conclusion; and that too with a view
only to avoid grave miscarriage of justice and for no other purpose. The important
test visualised in these cases, in this behalf was that the finding sought to be
interfered with after scrutiny under the foregoing searching light, should be found
wholly as artificial, shacking and ridiculous". Ali Sher v. The State and 3 others
PLD 1980 SC 317, State through Advocate-General N.-W.F.P., Peshawar v. Amir
Nazar and others PLD 1981 SC 286, Mst. Habibun Nisa alias Bivi v. Zafar Tqbal
and others 1981 SCMR 95, Nazir Ahmad v. Muhammad Din and others 1981 SCMR
415, Capt. Mahmood Jan v. Madad Khan and another 1981 SCMR 474, Ahmad v.
Crown PLD 1951 FC 107, Fateh Muhammad v. Bagoo PLD 1960 SC 286, Abdul
Majid v. Superintendent and Remembrance of Legal Affairs, Government of East
Pakistan PLD 1964 SC 422, Feroze Khan v. Capt. Ghulam Nabi PLD 1966 SC 424,
Usman Khan v. The State PLD 1969 SC 293, Noora and another v. The State PLD
1973 SC 469, Abdul Rashid v. Umid Ali and others PLD 1975 SC 227, Taj
Muhammad v. Muhammad Yousaf and others PLD 1976 SC 234, Farid v. Aslam
PLD 1977 SC 4, Fazalur Rehman v. Abdul Ghani PLD 1977 SC 529 and Ghulam
Sikandar v. Mamaraz Khan PLD 1985 SC 11."

Reference is also made to the case of "Jehangir v. Aminullah and others" (2010 SCMR
491) and "Bashir Ahmad v. Fida Hussain and 3 others" (2010 SCMR 495).
8. Keeping, in view the afore-referred circumstances coupled with guidelines given by the
apex Court of the country in the above quoted precedent case law, this Court is of the
affirmed view that there is nothing in this case which could be deemed to be arbitrary,
capricious, fanciful or against the record to warrant interference in the judgment of
acquittal. Furthermore no grave miscarriage of justice has been done due to acquittal of
respondents Nos.1 and 2 and there is no misreading or non-reading of the prosecution
evidence as contended by the learned counsel for the appellant. The nutshell of the
discussion is that this appeal has no merits, which is hereby dismissed in limine.

N.H.Q./U-11/L Appeal dismissed.

2008 Y L R 1217

[Karachi]

Before Khalid Ali Z. Qazi, J

MUHAMMAD HAROON---Plaintiff

Versus

MUHAMMAD HANIF and 2 others---Defendants

C.M.As.Nos.200 of 1998 and 2495 of 2001 in Suit No.578 of 1993, decided on 26th February,
2008.

Specific Relief Act (I of 1877)---

----Ss. 39, 42 & 54---Criminal Procedure Code (V of 1898), S. 476---Penal Code (XLV of
1860), Ss. 181, 191, 192, 193, 196, 463, 468 & 471---Suit for declaration, cancellation of power
of attorney and injunction---Non-filing of appeal by defendants against decree in suit---Plaintiff's
application for initiating criminal proceedings against defendants for having forged power of
attorney and his witnesses for giving perjured evidence---Pendency of plaintiff's application at
the time of passing of decree in suit---Effect---In normal course, Judge, who passed decree,
should have taken cognizance of offence committed by defendants and their witnesses for
committing forgery and perjury in preparation of false and forged power of attorney and using
same in court proceedings in order to deceive court---Such action had not been, taken at
appropriate time by court, thus, court refused to take cognizance of such matter at such belated
stage---Validity---Criminal offence had been committed and sparing criminals at such stage
would encourage others to enter into such type of criminal activities---Trial Court should take
strict actions against wrongdoers once they detect them---Court disposed of plaintiff's
application by directing him to lodge F.I.R. at concerned Police Station and directed S.H.O. to
register case, investigate matter and submit charge-sheet in Court having jurisdiction to try
case.

1992 MLD 1827; PLD 1992 Lah. 178; 1994 SCMR 1103; PLD 1991 Lah. 8; PLD 1989 Lah.
449; 1997 MLD 2097; 2006 MLD 1059; PLD 1965 Kar. 622; PLD 1992 Lah. 178; 1991 PCr.LJ
1337 and 1991 MLD 1759 ref.

Mubarak Ahmed for Plaintiff.

M. Ismail Kassim and Mubarik Ali and M.A. Kazi for the Defendants.

ORDER

KHALID ALI Z. QAZI, J.-C.M.A. No.200 of 1998. This is an application under section 476,
Cr.P.C. filed on 10-1-1998 by the plaintiff to invite this Court to take cognizance of the offence
committed by the defendant No.1 and his witnesses Nos. 2, 3, 4, 5 and 6 for their prosecution
under sections 181, 191, 192, 193, 196, 463, 468 and 471, P.P.C. on the allegations that the
defendant No.1 has forged the power of attorney and the witnesses to the documents are also
involved in the forgery of said documents and all witnesses gave perjured evidence.
2. Brief facts of the case requisite for disposal of this application are that the plaintiff is real elder
brother of defendant No.1 and defendant No.2 is wife of defendant No.1. The plaintiff filed suit
on 4-9-1993 against. the defendants for declaration, cancellation and permanent injunction in
respect of his House No.1-G, 11/17, Nizamabad, Karachi on the ground that the defendant No.1
forged a power of attorney purported to be executed by the plaintiff and on the strength of this
power of attorney, the defendant No.1 gifted the said property of the plaintiff to his wife, the
defendant No.2. The family of the plaintiff was resident of Jhudo Sindh. The plaintiff purchased
the House on 7-8-1976. He came to Karachi and started business of milk selling. After
establishing himself, the plaintiff brought his family, to Karachi and shifted to the above said
house along with defendant No.1 and lived as joint family. In the month of June, 1993, the
plaintiff realized that the sale-deed and other documents of the house were missing. Thereafter
he came to know about the forgery and fraud committed by the defendant No.1.

3. The defendants Nos.1 and 2 filed their written statement jointly alleging therein that the
plaintiff had obtained loan from bank and being unable to repay to bank he agreed to sell the
house in the end of 1986 to the defendant No.1 which the defendant No.1 was agreed to purchase
for a total sale consideration of Rs.3,50,000. This transaction, according to defendants Nos.1 and
2 took place in presence of family members a sum of Rs.1,00,000 was paid to the plaintiff to
repay the bank loan. No receipt or agreement was executed. The General Power of Attorney in
favour of defendant No.1 was executed by the plaintiff' on 11-1-1987. It was further stated that
the sum of Rs.2,50,000 was paid in two instalments of Rs.1,30,000 and Rs.1,20,000. No receipt
was given in acknowledgment. The plaintiff having received the total sale consideration handed
over the original documents to the defendant No.1. It was further alleged in the written statement
that after receiving full payment of sale consideration and receiving the original title documents,
the defendant No.1 for his love and affection towards his wife the defendant No.2, executed the
gift deed on 7-9-1991. It was further alleged that after giving notice in the newspaper, the said
house was mutated in KDA record in the name of defendant No.2 by defendant No.3 KDA.

4. During the pendency of this application, the main suit has been decided by this Court on 5-5-
1999 in favour of the plaintiff and it was held that the defendant No.1 and his witnesses are liable
to be prosecuted for purjery and forgery under section 476, Cr.P.C. but no order had been passed
under section 476, Cr.P.C.

5. This Court has also passed the decree on 5-5-1999, as prayed by the plaintiff as under:---

(i) It is hereby declared that the alleged power of attorney is forged by defendant No.1.
 (ii) It is hereby ordered that gift deed executed on 7-9-1991 in favour of defendant No.2
is cancelled and of no legal effect.

(iii) It is hereby ordered that the forged power of attorney on the strength of which the
gift deed has been executed is cancelled.

(iv) It is hereby declared that the plaintiff is the lawful owner of house bearing No.1-G;
11/17, Nazimabad, Karachi.

(v) That the defendant No.1 and or anybody else are hereby restrained to alienate the
property or deal with it in any manner.

It is pertinent to point out that no appeal has been filed against the judgment and decree passed
by this Court and they attain finality.

6. That inspite of the judgment and decree, dated 5-5-1999 the defendant No.1 and the witnesses
in their counter affidavits insisted that the said power of attorney was not forged. It was pleaded
by the defendants that every forgery is not criminal. It may be intentional without being
dishonest or it may be appeared to be dishonest without being really so. In such cases; the Court
should be slow to move and this contention is all the more necessary because there is tendency to
secure speedy result by having recourses to criminal law.

7. I have heard the learned advocates for the parties to some length and perused the entire record,
their written arguments, relevant law and case law cited at bar:

8. In support of the application Mr. Mubarak Ahmed learned advocate for plaintiff/applicant has
forcefully relied upon the following cases:---
 (i) 1992 MLD 1827, (ii) PLD 1992 Lah. 178, (iii) 1994 SCMR 1103, (iv) PLD 1991 Lah.
8, (v) PLD 1989 Lah. 449 and (vi) 1997 MLD 2097.

9. To controvert the arguments advanced by Mr. Mubarak Ahmed learned advocate for plaintiff,
Mr. Muhammad Ashraf Qazi learned advocate for the defendants in support of his contentions
has cited the following rulings.

(i) 2006 MLD 1059, (ii) PLD 1965 Kar. 622, (iii) PLD 1 9 9 2 Lah. 178, (iv) 1992
MLD 1827, (v) 1991 PCr.LJ 1337 and (vi) 1991 MLD 1759.

10. I am fully in agreement with the law laid down in above cases by Honourable Courts but they
are distinguishable and cannot assist and support them as the facts of present case are different
from cases as cited at bar.

11. In the normal course the learned Judge, who had decided the case should have taken
cognizance of the offence committed by the defendant No.1 and his witnesses by committing
forgery and purjery in preparation of false and forged power of attorney and using the same in
Court proceedings in order to deceive the Court but since it has not been done at the appropriate
time by the trial Court. I, therefore, refrain to take cognizance of the matter at this belated stage.
However it seems that criminal offence has been committed and sparing the criminal at this stage
will encourage others to enter into such type of criminal activities. I am of the view that the trial
courts should take strict actions against wrongdoers once they detect the same. I therefore, direct
the plaintiff to lodge the F.I.R. at concerned police station within whose jurisdiction the suit
property is situated. The S.H.O. of the area police station is directed to register the case,
investigate the matter and submit charge sheet in the Court having jurisdiction to try the case in
accordance with law.

C.M.A. No.2495/2001. Listed application is also disposed of in above terms.

S.A.K./M-202/K Application disposed of.

2006 Y L R 2579
[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD DIN alias MAHANA and 7 others---Petitioners

Versus

WAZIR ALI---Respondent

Civil Revision No.1521 of 1999 and C.M. No.1266-C of 2002, decided on 20th June, 2006.

Civil Procedure Code (V of 1908)---

----Ss. 12(2) & 115---Qanun-e-Shahadat (10 of 1984), Arts. 79, 118 & 119---Revision
against decree passed in plaintiff's favor by Courts below, pendency of---Order of High
Court dismissing plaintiff's suit on conceding statement of his Special Attorney and counsel
alleging compromise between parties---Application for setting aside such order on ground of
misrepresentation and fraud---Plaintiff's plea was that he did not appoint Special Attorney
and Counsel, rather a fictitious person on basis of forged Power of Attorney had appeared as
attorney on his behalf---Proof---Plaintiff by deposing in support of his plea discharged initial
burden of proof, which thereafter switched over to defendant (beneficiary of impugned
order)---Defendant was obliged to produce such Attorney to prove that he was validly
appointed and had necessary authority to compromise matter on plaintiff's behalf ---
Defendant did not prove execution of disputed Power of Attorney by producing its attesting
witnesses---Defendant did not examine such counsel to prove as to how he was engaged,
upon whose instructions he appeared and made conceding statement before Court ---
Defendant did not bring on record written compromise or original Power of Attorney or copy
thereof---Held: Defendant being beneficiary of impugned order had procured same by
practicing fraud upon plaintiff-High Court set aside impugned order, resultantly revision
petition stood revived for its hearing on merits.
 Sardar Qasim Ahmad AIi and Ch. Muhammad Luqman for Petitioner.

Zahid Hussain Khan for Respondents/revision Petitioners.

ORDER

MIAN SAQIB NISAR, J.--- On 2-2-1982, the applicant Wazir Ali filed a suit for the pre-
emption against Muhammad Din son of Kamal Din (revision petitioner No.1) and Noor Din
(the predecessor-in-interest of revision petitioners Nos.2 to 8). The suit was decreed by the
learned trial Court on 14-9-1985. The vendees/ judgment-debtors filed an appeal against the
above, which was dismissed by the learned Appellate Court on 21-6-1986. Against these two
decisions, the respondents (revision petitioners), on 3-12-1986, filed a civil revision before
this Court, to which objections were raised by the Office. It is strange that for a very long
period of time the petition remained under objections, when after the removal of the same it
was re-filed on 30-9-1999 and was then numbered. The revision petition, for the first time,
came up for hearing before the Court on 8-11-1999, when the following order was passed:

"Mr. Muhammad Hayat Qasmi, Advocate, for Malik Muhammad Azam Rasul '
Advocate, for the petitioners.

Muhammad Younas, SpecialAttorney of the respondent with Malik Amjad

Pervaiz, Advocate.

It is mutually stated that a compromise has been affected between the parties. The
respondent has no objection if by accepting the revision petition the impugned
judgments and decrees of the Courts below are set aside and the suit filed by the
respondent is dismissed.

(2) In the light of above, this revision petition is accepted, the judgments and decrees
impugned are set aside and the suit filed by the respondent is dismissed with no order
as to costs. Original power of attorney is placed on record."
 2. Through the present application under section 12(2), C.P.C., it is alleged by Wazir
Ali, the applicant/decree-holder, that he has not entered into any compromise with the
revision petitioners; that the revision petitioners have procured the order dated 8 -11-1999
through fraud and misrepresentation; he has neither appointed Muhammad Younas as his
special attorney nor has engaged Malik Amjad Pervaiz, Advocate. The respondents replied to
the above, who in categorical and unequivocal terms state that Muhammad Younas was
appointed as attorney the applicant Wazir Ali, who entered into a compromise with the
respondents and it, is in pursuance of the said compromise that the order dated 8 -11-1999
was passed. Anyhow, in view of the factual controversy between the parties, the following
issue was framed:--

"Whether the order dated 8-11-1999 has been procured by the respondents through
fraud and misrepresentation."

3. In pursuance of the above, Wazir Ali has appeared as AW-1 and in categorical
terms stated that he had never appointed Muhammad Younas as his special attorney; the
power of attorney was forged and some fictitious person has appeared as attorney on his
behalf. This statement is corroborated by the statement of AW-2 Muhammad Sharif. Besides,
the applicant has also produced the following documentary evidence:--

Exh.A.1 Copies of the orders of the High Court.

Exh.A.2 Copy of the C.R. No.1521.

Exh.A.3 Copy of the application (C.M. No.1266-C of 2002) filed by Muhammad

Akbar Cheema, Advocate.

Exh.A.4 Copy of the written reply on behalf of the respondents.

 Exh.A.5 Copy of the application (C.M. No.1133-C of 2002) under section 12(2),
C.P.C. filed by Ghulam Yasin Tahir, Advocate.

Exh.A.6 Copy of the order dated 14-3-2000 passed by the A.C./Collector;, Kasur.

Exh.A.7 Copy of the Purchase Agreement.

Exh.A.8 Original Identity Card of Wazir Ali .

As against the above, the respondents examined Muhammad Din as RW-1, Habib
Ullah as RW-2 and Khushi Muhammad as RW-3. they have also produced the copy of the
registered Sale-deed No.5514 as Exh.R.1 and copy of the Mutation No.528 as Exh.R.2.

4. I have heard the learned counsel for the parties. There are specific assertions by the
applicant in his statement, who has earned a favorable decrees from the two forums below,
that he has not appointed Muhammad Younas as his attorney to pursue or compromise the
matter and some fictitious person was produced by the respondents/revision petitioners to
procure the impugned order. This has discharged his initial burden of proving the issue. The
onus thereafter, switched over to the respondents, who are the beneficiary of the order and
thus, were obliged to produce Muhammad Younas, the attorney, who appeared before this
Court on behalf of the applicant to prove that he was validly appointed and had the necessary
authority to compromise the matter on behalf of the applicant, but this has not been done;
besides, to prove the disputed power of attorney, the attesting witnesses of the A document
have also not been examined. Malik Amjad Pervaiz, Advocate should have also been
examined to prove as to how he was engaged; upon whose instruction he appeared before the
Court and made the conceding statement, but this has not been so done. From the record, it
transpires that Muhammad Younas was not appointed as the attorney by the applicant
through any registered document. Though, in the order dated 8-11-1999, it is mentioned that
the original power of attorney has been placed on the record, but this again is not available.
No effort has been made by the respondents to prove the valid execution of the power of
attorney by the applicant Wazir Ali in favour of Muhammad Younas and necessary evidence
in this behalf has not been led by the respondents. Wazir Ali is not even shown to have be en
ever served in the main revision petition. Thus, in the light of above, it can safely be held
that when Muhammad Younas is not established by the respondents to have been appointed as
attorney by the applicant Wazir Ali to appear on his behalf or to engage Malik Amjad Pervaiz,
Advocate, and to make the statement about any compromise; the impugned order has been
procured by the respondents, who are the beneficiary of the order, through fraud and
misrepresentation, A especially when no written compromise or the power of attorney in original
or a copy thereof has been brought on the record by the respondents. Therefore, I am convinced
that a fraud has been practiced upon the applicant, obviously by the respondents. in procuring the
order/judgment dated 8-11-1999, which cannot sustain and is hereby set aside.

5. Resultantly, the main revision petition stands revived. Let it be fixed for B hearing on
24-7-2006.

S.A.K./M-378/L Revision restored.

P L D 2006 Lahore 233

B ef ore Syed Zahid Hussain, J

GHULAM MUHAMMAD through Legal Heirs---Appellant

Versus

ABDUL REHMAN and others-Respondents

Regular Second Appeal No.81 of 1999, decided on 1st March, 2006.

Specific Relief Act (I of 1877)---

----Ss. 8 & 39---Limitation Act (IX of 1908), Arts. 91 & 120---Suit for possession and
cancellation of sale-deed got executed on basis of forged power of attorney---Dismissal of suit as
time-barred by Courts below despite finding plaintiff to be the owner of suit-land as he has
never executed power of attorney, thus, subsequent sale pursuant thereto was null and void---
Validity---Where deed/instrument was found to be null and void, then Art.91 or 120 of
Limitation Act, 1908 would not apply---Plaintiff was entitled to decree for possession and his
suit could not be dismissed on ground of limitation---High Court accepted revision petition,
resultantly suit stood decreed.

Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624; Muhammad Bashir
v. Mst. Sattar Bibi and another PLD 1995 Lah. 321; Malik Ata Ullah and another v. Malik
Muhammad Akram Khan and others PLD 1956 (W.P.) Lah. 264; Shamshad Ali Shah and
others v. Syed Hassan Shah and others PLD 1960 (W.P.) Lah 300; Abdul Rehman v. Abdul
Haq and others PLD 1960 (W.P.) Kar. 625; Mst. Izzat v. Allah Ditta PLD 1981 SC 165; Abdul
Majeed and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 and Muhammad
Akbar Shah v. Muhammad Yusuf Shah and others PLD 1964 SC 329 rel.

Bashir Ahmad v. Partab 1989 MLD 4314 distinguished.

Khan Khizar Abbas Khan for Appellant.

Ch. Inayat Ullah for Respondents.

JUDGMENT

SYED ZAHID HUSSAIN, J.---A suit for possession of the suit-land (described in paragraph
No.1 of the plaint) cancellation of Sale-deed No.135 dated 22-3-1972, Mutation No.923 dated
18-4-1977, Mutation No.933 dated 21-5-1978 and Mutation No.1219 dated 24-4-1985 filed by
Ghulam Muhammad (now dead) was dismissed by the trial Court on 7-6-1995. His appeal was
also dismissed on 29-4-1998. This second appeal by him.

2. The suit instituted by Ghulam Muhammad in the year 1984 proceeded on number of grounds
including that he had never appointed Basharat Ali as his attorney, who purported to execute
the sale-deed dated 22-3-1972 and that the whole affair was result of fraud, forgery and
fabrication. The suit was contested controverting the averments made in the plaint and
pleading that the same was time-barred. Several issues were framed by the trial Court, which
are as under:

ISSUES:

(1) Whether the plaintiff is owner of the suit property and registered Sale-deed No.135 dated
22-3-1972 and Mutation No.923 attested on 18-4-1977 and Mutation No. 933 attested on 21-5-
1978 and No.1219 attested on 24-4-1985`are result of fraud hence liable to be set aside and
cancellation? OPP

(2) Whether the power of attorney dated 21-8-1969 from plaintiff in favour of one Basharat Ali
son of Allah Ditta is a forged document? OPP.

(3) Whether the plaintiff is entitled to the possession of the suit land? OPP

(4) Whether the suit is time-barred? OPD 1-3

(5) Whether the defendant No.1 has become owner of the suit-land by way of adverse
possession? OPD-1

(6) Whether the suit property has not been correctly described if so, what is its correct
description? OPD-1-3

(7) Where the defendant No.2, is unnecessary party, if so, its effect? OPD

(8) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD-3.
(9) Whether the plaintiff has no locus standi? OPD-3.

(10) Whether the suit is frivolous and vexatious against the defendants Nos.1 and 3 and they
are entitled to special costs under section 35-A, C.P.C. if so, to what extent? OPD 1-3

(11) Whether the defendant No.3, is bone fide transferee with consideration without notice if
so, its effect? OPD-3.

(12) Relief.

It is evident from the perusal of the above mentioned issues that issues Nos.1 to 5 were of great
significance and importance. It may be mentioned here that whereas issues Nos. 1 and 2 are
concerned the same were decided by the trial Court in favour of the appellant/plaintiff wherea s
issue No.4 was decided against the appellant/plaintiff and suit was held to be time-barred.
Issue No.5, was decided against the defendants/respondents, whereas in view of findings on
issue No.4, issue No.3, was decided against the appellant/plaintiff. The dismissal of the suit in
view of findings on issue No.4 was assailed by the appellant/ plaintiff before the first appellate
Court. Cross-objections were filed by respondents/defendants. Both the matters were heard
together by the learned Additional District Judge, Jhang who dismissed the appeal of the
appellant/plaintiff as also the cross-objections filed by the respondents/ defendants. It is also
worth-noting that the dismissal of cross-objections has not been assailed by the
respondents/defendants any further.

3. Since now the findings qua issue No.4 stand against the appellant/plaintiff, - whole stress of
the learned counsel was about the same. It is contended by the learned counsel that having
decided issues Nos. 1 and 2 in favour of the appellant/plaintiff that he was owner of the
property, the Courts below acted illegally in dismissing the suit in view of the erroneous
findings recorded by them that the suit was time-barred. He has relied upon Hamida Begum v.
Murad Begum PLD 1975 SC 624. According to him as it has concurrently been found by the
Courts below that the power of attorney dated 21-8-1969 in favour of Basharat Ali was a
forged document and had never been executed by Ghulam Muhammad neither the suit could be
dismissed as barred by time nor the relief of possession could be denied.

The learned counsel for the respondents on the other hand contends that the suit, which was
instituted in the year 1984 has rightly been held barred by time and that since the plaintiff was
bound to seek cancellation of the sale-deed within limitation, his suit has rightly been
dismissed. He has placed reliance upon Mst. Hamida Begum v. Mst. Murad Begum and others
PLD 1.975 SC 624; Muhammad Bashir v. Mst. Sattar Bibi and another PLD 1995 Lah. 321
and Bashir Ahmad v. Partab 1989 MLD 4314.

4. The respective contentions have been considered in the light of the record.

5. It may be noted that on consideration of the evidence led by the parties the learned trial
Court came to the conclusion and recorded its findings on Issues Nos. 1 and 2 that "So all these
facts are sufficient to show that the plaintiff had not appointed Basharat Ali as his general
attorney and that he had not sold the suit-land to defendant No. 1. So as the basic document i.e.
the general power of attorney has been judged null and void, all the subsequent transactions
vis-a-vis the Sale-deed No.135 dated 22-3-1972, Mutation No.923 dated 18-4-1977, Mutation
No.933 dated 21-5-1978, Mutation No.1219 dated 24-4-1985 will have also no foundation to
stand on and they cannot affect the rights of the plaintiff and they are also liable to be set aside.
So in my view the plaintiff is the owner of the suit-land": As mentioned above the findings so
recorded by the trial Court qua issues Nos. 1 and 2 were affirmed by the first appellate Court
and cross-objection filed by the respondent/ defendants were dismissed vide the same
judgment of the appellate Court dated 29-4-1998. Since the respondent/defendants have not
assailed the matter any further concurrent findings by the Courts below qua issues Nos. 1 and 2
have remained intact and hold the field.

6. Now the only issue is of limitation as to whether the Courts below were justified to non-suit
the appellant/plaintiff on the ground that the suit was barred by time. Keeping in view the
concurrent findings in favour of the appellant/plaintiff that he had not executed any power of
attorney in favour of Basharat Ali and subsequent transactions pursuant thereto were null and
void and that the appellant/plaintiff was the owner of the property, it is to be seen as to how far
the dismissal of the suit on the ground of limitation was legal. Both the learned counsel have
relied A upon the case of Mst. Hamida Begum which is published as Hamida Begum v. Murad
Begum and others PLD 1975 SC 624 as also Hamid Begum v. Murad Begum PLJ 1976 SC 44
in the said judgment their lordships on consideration of number of precedents observed that
"From the language of the Article itself it is clear that it will not apply when the cancellation of
an instrument is not an essential part of the plaintiff's relief. An obvious case of this kind
would be where the deed or instrument is ab initio null and void, in which case it can be treated
as a nullity without having to be cancelled or set aside. If, on the other hand the instrument is
only voidable then it would be necessary to have it set aside or cancelled in order to remove
the impleadment in the way of the plaintiff. It is perhaps not possible to enumerate
exhaustively the circumstances which would render an instrument null and void, but it is at
least clear that if the person who executes the document had no authority in law to do so, or if
he had only a conditional authority to dispose of property, and the conditions under which
authority could be exercised were not fulfilled, then the instrument could be regarded as null
and void. Similarly, if the instrument is executed by a person suffering under a legal disability
at the time of its execution, say by reasons of minority unsoundness of mind etc. the document
would be null and void. If however, the instrument is executed by a person competent to do so,
but it is alleged that he was forced or persuaded to execute the same under coercion, fraud,
misrepresentation or undue influence then it would be a voidable instrument in accordance
with the principles embodied in sections 19 and 19-A of the Contract Act. The instrument
would remain operative as long as it was not set aside by a competent Court. As authority for
this proposition, we may mention Radhu Ram v. Mohan Singh AIR 1915 Lah. 200, Unni v.
Kunchi Amma (1891) ILR 14 Mad. 26, Mt. Kizhaer Fatima Bibi ,v. Mt. Ansar Fatima Bibi
AIR 1939 All. 348, Minatal Shadiram v. Kharasetji Jivajishet 1930 ILR 27 Born. 560, Janki
Kunwar v. Ajit Singh (1888) ILR 15 Cal. 58, Govindasamy Pillai v. Ramaswamy Pillai 1909
ILR 32 Mad. 72, Mohant Gyan Prakash Das v. Mt. Dukhan Kaur AIR 1938 Pat. 69, Sh. lbrar
Ahmad v. Mst. Kamni Begum AIR 1938 All. 451. Ramchandra Jivaji Kanago v. Laxam Shrini
Vas Naik AIR 1945 PC 54". [Underlined by me for emphasis].

If may be observed that Article 91 of the Limitation Act, 1908 which was considered by their
Lordships provides a period of three years as limitation for seeking the cancellation or setting
aside of any instrument when the facts entitling the plaintiff to have the instrument cancelled
or set aside become known to him. This Article has been considered in numerous other
judgments of the Superior Courts. In Malik Ata Ullah and another v. Malik 'Muhammad
Akram Khan and others PLD 1956 (W.P.) Lah. 264, a learned Division Bench observed that
"Article 91 of the Limitation Act will apply only in the case of a voidable instrument, and that
if the instrument is void, it will not apply. If, therefore, we had held that the Wakf deed was
invalid the suit would have been within limitation". In Shamshad Ali Shah and others v. Syed
Hassan Shah and others PLD 1960 (W.P.) Lahore 300 a learned Division Bench of this Court
took the view that since "the gift was void in its entirety and, in any case was void to the extent
of 2/3rds, Article 91 of the Limitation Act had no application to the facts of the case as it was
not necessary for the plaintiffs to get the deed of gift set aside, the suit was therefore, not
barred by limitation". In Abdul Rehman v. Abdul Haq and others PLD 1960 (W.P.) Karachi
625, a learned Division Bench reached' a conclusion that "we have come to the conclusion that
the present is not a case where Article 91 or Article 120 of the Limitation Act would apply.
The sale-deed Exh.87 executed by Mst. Arbab Khatun is null and void for the reason that at the
time of its execution i.e. on 29-7-1935 she was a minor, being less than sixteen years of age,
and therefore incompetent to contract. There was no need for filing a suit for the cancellation
or setting aside of the sale-deed in question, and in effect the suit of the plaintiff was not one
for such cancellation or setting aside of the instrument in question. The sale-deed does not
exist in the eye of law and accordingly the claim for possession has to be judged independently
of the sale-deed. Clearly the period of limitation in such a case would be governed by Article
144 of the Limitation Act." [Underlined for emphasis). Mst. Izzat v. Allah Ditta PLD 1981 SC
165 reiterates the principle stated'in Hamida Begum (supra). Quite recently in Abdul Majeed
and 6 others v. Muhammad Subhan and 2 others 1999 SCMR 1245 the Hon'ble Supreme Court
of Pakistan had the occasion to deal' with a case of somewhat identical nature wherein the
impugned sale-deed had been assailed inter alia on the grounds that the same was result of
fraud. The question as to the limitation for such suit came to be considered by their Lordships
and it was held that "the execution of sale-deed dated 10-1-1962, by the plaintiff in favour of
defendant No.2, could not be proved and it could also not be established that the plaintiff had
appeared before the Registrar at the time of registration and payment of sale consideration to
the plaintiff could also not be substantiated. The sale-deed was, therefore, a void document and
the plaintiff was not bound to ask for its cancellation as it could not constitute a hindrance or
impediment in his way to seek possession under Article 142 from the date he was dispossessed.
This legal position has been extensively discussed in Muhammad Akbar Shah v. Muhammad
Yousuf Shah and others PLD 1964 SC 329, which has been relied upon by the High Court in
the impugned order. It has been laid down in the said judgment: "The principle which is
applicable cannot be disputed either on authority or in reason. The principle is that if the
transaction which is sought to be set aside was a voidable one, it is essential that the
transaction be set aside if it be not voidable, but void, the question of setting it aside would not
arise. As to whether a transaction is voidable or void there is a simple criterion: did the
transaction create any legal effects, that is, did not transact transfer, create or terminate or
otherwise affect any rights? In a void transaction no legal effects are produced. In a voidable
transaction legal effects are produced but some persons has the right to avoid the transaction
and if he exercises that option the process by which rights were affected is reversed and the
original situation as it existed before the transaction is restored (subject to adjustment of
equities). If the Court which is dealing with the question of limitation reaches the conclusion
after considering the evidence before it that the transaction in dispute by its own force
produced legal effects. it would be necessary that the transaction be set aside and limitation
will be governed by the Article applicable to the setting aside of the transaction. If it comes to
the conclusion that by itself the transaction produced no effects no need for setting it aside will
arise. It is necessary to state here that a voidable transaction should not be confused with a
transaction which prima facie looks valid and in relation to which the burden of proof will be
on the party alleging its invalidity. There may be a document in existence a registered deed of
sale or mortgage or some other transaction, which is by presumption genuine and the person
who purports to be its executant may have the burden on him to show that it is a forgery. S till
it is not voidable trail action because ultimately when the Court comes to the conclusion that it
is a forgery it will be found that in fact the document never affected any right. This is the
criterion for determining whether a document is void or voidable. Its apparent validity or the
question of burden of proof is in this respect irrelevant. No person is bound to sue for setting
aside a document just because it is raising a presumption against him. There is no need for the
person who is shown to be the executant of the forged document to sue for its cancellation or
for setting it aside though he may be taking a risk in allowing the document stand for proof of
forgery may become difficult as time passes. A transaction which is not genuine may have
been incorporated even in the Revenue Records which have a presumption of correctness. Still
there is no need to have. the transaction set aside for '' ,venue Records are only evidence of it
and do not affect title. If the Court finds that there is no true basis for entry in the record-of-
rights its conclusion would be that there never did exist any transaction which affected any
rights. "Setting aside" is wholly inappropriate for a document which has produced no legal
effects though the expression is sometimes loosely used in respect of a declaration of invalidity
of a document". [Portion underlined by me for relevance].
7. The above statement of the legal position obtaining in the matter should clinch the controversy
involved herein and there remains no room for doubt that Article 91 or Article 120 of the
Limitation Act do not apply where the deed/instrument is found to be null and void. The reliance
of the learned counsel for the respondents upon Bashir Ahmad 1989 MLD 4314 (supra) is
misplaced inasmuch as the sale-deed in that case was found to be not illegal and the observations
as to point of limitation made therein were in that context. Likewise, reliance upon Muhammad
Bashir's case PLD 1995 Lahore 321, is also inapt as in the present case there are specific findings
by the two Courts below on issues Nos. 1 and 2, that the plaintiff had never executed any power
of attorney and the instrument pursuant thereto were found as null and void. In any case the
legal, position as propounded by the Hon'ble Supreme Court has the binding force in view of
Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 and is to be followed.

8. Since the concurrent findings by the Courts below have been in favour of the
appellant/plaintiff qua issues Nos. 1 and 2 who have come to the conclusion that Basharat Ali
had never been appointed attorney by Ghulam Muhammad the sale-deed executed by the said
Basharat Ali in favour of the respondents/defendants (as attorney for Ghulam Muhammad) was
null and void and the appellant/plaintiff has rightly been found the owner of the property. He was
thus entitled to a decree for possession whose suit could not be dismissed on the ground of
limitation. The approach of the Courts below qua issue No.4 was entirely erroneous and
unsustainable in law and the dismissal of the suit was unwarranted and illegal for that reason.

In such view of the matter this appeal is accepted as a result the suit shall stand decreed. The
appellant will be entitled to costs.

S.A.K./G-14/L Appeal accepted.

P L D 2004 Karachi 539

Before Muhammad Sadiq Leghari, J

Messrs YOUSAF SONS---Petitioner

versus

Messrs MALKANI TRADING CO. and others---Respondents

C.P.S. No.894 of 2003, decided on 24th February, 2004.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constttutiona jurisdiction--- cope---Controversy regarding forged power of

attorney being factual one, High Court in its Constitutional jurisdiction could not enter into the
exercise of making inquiries in respect of such controversy.

(b) Sindh Rented Promises Ordinance (XVII of 1979)---

----S. 2'(b)---Rent Controller---Status of Rent Controller as a Court--Judicial proceedings---Rent

Controller was a Court as he took the evidence and determined the rights of the parties within the
scope of Sindh Rented Premises Ordinance, 1979---Miscellaneous Rent application was also
judicial proceedings, in those proceedings also Rent Controller had to decide judicially as to who
was entitled to withdraw the amount of rent deposited with him and to what extent---Rent
Controller had also to take judicial decision as to whether Rent deposited with him was valid
tender/offer of rent due and his finding in that respect was definite unless upset by Appellate
forum---Rent Controller, in circumstances surely was a Court---Controversial power of attorney
was used before Rent Controller and after being satisfied that same was forged one, he passed
order for the prosecution of petitioner---Rent Controller being Court, could take cognizance of
offence under S.193, P. P. C. or file complaint---Contentions that Rent Controller was not Court
and could not order prosecution, were devoid of substance.

(c) Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 21---Appeal against order of Rent Controller ---Order passed by Appellate Court---Perusal
of appellate order had clearly shown that Appellate Court had discussed the merits and held
order of Rent Controller to have been passed competently and after that Appellate Court added
'that appeal was liable to be dismissed also for being not maintainable---Since the merits had also
been considered and conclusions were drawn, order was deemed to have been passed on merits
exercising Appellate jurisdiction which Appellate Court could legitimately exercise as order
impugned through appeal was not an interlocutory one---Such was a final decision of a particular
question/issue.

M.A. Awan for Petitioner.

ORDER

The facts relevant to this order are that Malik Anwar the owner of the premises No.F-215, Site
had let out the same to Yousuf Sons (hereinafter referred to as "the tenant"). During the period of
tenancy litigation over the title of said premises started between Malik Anwar (hereinafter
referred to as "the. Landlord") and Malkani Traders. Such suit was filed in this Court.

After such dispute and litigation the tenant through their partner Shoaib filed MRC No. 160 of
1995 before the Rent Controller requesting therein for permission to deposit the rent with the
Court. After grant of permission they deposited the rent with the Court.

Later on S.J. Shahid Shah filed an application before the learned Rent Controller for permission
to withdraw the rent deposited with the Court. He claimed himself to be the attorney of landlord
Malik Anwar and also placed on record such power of attorney. Shoaib the partner of Yousuf
Sons conceded to that request and permission was granted to S.J. Shahid Shah. He then withdrew
the rent amounting Rs.11,40,000.

Thereafter Malkani Traders who were litigating with Malik Anwar filed an application before the
learned Rent Controller informing him that the power of attorney on the basis whereof the
amount of rent was withdrawn by S.J. Shahid Shah was a forged document therefore, action be
taken against the Respondents. The Court of the learned Rent Controller entered into exercise of
verification from the concerned Sub-Registrar. After receiving the report from him that the
power of attorney used for withdrawal of the rent was never registered with him, the learned
Rent Controller ordered the prosecution of S.J. Shahid Shah and Shoaib; the partner of Yousuf
Sons by order dated 5-3-2002, directing the COC to lodge the F.I.R with police at PS City Court
Karachi.

Above order of the Rent Controller was appealed against before the District Judge, Karachi West
through FRA No. 22 of 2002 which was dismissed on 11-12-2002, by the learned Vth Additional
District Judge, Karachi West to whom it was assigned by the District Judge. Both of the orders
have been assailed through present petition.

Learned Advocate for the petitioner contends that the Rent Controller had no authority to order
the prosecution, as the alleged forged power of attorney was filed before him in miscellaneous
proceedings and not in a regular rent case. According to the learned Advocate, MRC
miscellaneous rent case is not judicial proceedings. He further contended that the learned
Appellate Court also committed illegality by dismissing the appeal treating it as not maintainable
and refusing to exercise its appellate jurisdiction in disregard of the legal position that the order
passed by the Rent Controller was appealable as it was final decision about prosecution of the
two persons. The learned Advocate suggested for 'remand of matter to the Appellate Court for
considering the merits.

During the course of arguments, the learned Advocate further suggested that this Court should
undertake verification about the genuiness of the power of attorney and take decision in that
respect.

The controversy regarding the forged power of attorney is factual one and this Court in its
Constitutional jurisdiction, cannot enter into the exercise of making inquiries in respect of the
factual controversy.

As regards the status or classification of the Rent Controller he takes the evidence and
determines the rights of the parties within 'the scope of Rent Restriction Ordinance 1979, and his
decisions is definite unless challenged and set aside, therefore, he is a Court. This Court took
same view in judgment dated 31-5-2001, in Cr. Misc. No. 166 of 2000 which was approved by
the Hon'ble Supreme Court of Pakistan in Cr. PLA No.46 of 2001, decided vide judgment dated
16-11-2001.
The Miscellaneous Rent case is also judicial proceedings. In those proceedings also the Rent
Controller has to decide judicially as to who is entitled to withdraw the amount of Rent deposited
with him and to what extent. He has also to take judicial decision as to whether the Rent
deposited with him is valid tender/offer of rent due. And his finding in that respect is definitive
unless upset by an appellate forum. Thus he is surly a Court.

The controversial power of attorney was used before the Rend Controller and after being
satisfied that the same was forged one he' passed order for the prosecution of the petitioner. He
being Court could take cognizance of the offence under section 193 P.P.C or file a complaint.
Therefore, contentions of petitioner's learned Advocate that the Rent Controller was not Court
and could not order the prosecution are devoid of substance.

The contention of the learned Advocate that the Appellate Court dismissed the appeal as not
maintainable cannot be accepted as whole truth. Perusal of the appellate order shows clearly that
the learned Additional District Judge discussed the merits and held the order of Rent Controller
dated 5-3-2001, to have been passed competently. After that he added that the appeal was liable
to be dismissed also for being not maintainable. Since the merits have also been considered and
conclusions drawn the order is deemed to have been passed on merits exercising appellate
jurisdiction which he could legitimately exercise as order impugned through the appeal was not
an interlocutory one. It was final decision of a particular question/issue.

It will be relevant to mention here that the Rent Controller has neither taken cognizance of the
offence himself nor filed the complaint. He directed COC to lodge the F.I.R. Neither the copy of
the F.I.R. is before this Court for knowing as to for' what offence the case has been registered nor
the learned Advocate argued on that aspect of the matter. Obviously in that respect the law shall
take its own course and the applicant can seek remedy, if any, warranted under law.

Present petition, however, merits no consideration and is dismissed in limine.

H.B.T./Y-6/K Petition dismissed.

2003 Y L R 2554

[Lahore]
Before Tassaduq Hussain Jilani, J

Mst. NAWAB BIBI and others---Petitioners

Versus

GHULAM HUSSAIN and others---Respondents

Civil Revision No. 115/D of 1996, heard on 10th April, 2002.

(a) Qanun-e-Shahadat (10 of 1984)---

---Art.90---Date of death of a person--Presumption as to genuineness of a certified copy-

Witnesses had deposed about events taking place 25 years back---Nobody was expected to be
very exact about date and time, of events which were not directly in issue--Copy of Death
Register issued by District Health Officer would carry presumption of truth under Art.90 of
Qanun-e-Shahadat, 1984 and it could not be ignored on account of a slip of memory by
witnesses as to the date of death of deceased.

(b) Specific Relief Act (I of 1877)---

----S. 42---General power of attorney--Powers under general power of attorney--Plaintiffs had

claimed that suit property was owned by husband of one of the plaintiffs who died in 1957 and
that defendant through forged power of attorney allegedly executed by the deceased in his
favour, had transferred entire land of deceased in favour of his sons and nephew on basis of said
power of attorney through registered sale-deed---Even if general power of attorney was
considered to be a genuine document, a heavy responsibility would lay on the attorney to ensure
bona fides of sale-deed executed by him in his capacity as an attorney---If attorney intended to
mutate land in favour of his sons and nephew on the basis of general power of attorney allegedly
executed in his favour, law had mandated that an express authority from the principal was a
condition precedent without which general power of attorney, would carry no legal efficacy.

Fida Muhammad v. Muhammad Khan PLD 1985 SC 341 and Wali Muhammad v. Muhammad
Ibrahim and another PLD 1989 Lah. 440 ref.

(c) Civil Procedure Code (V of 1908)------

----S. 115---Revisional jurisdiction of High Court---Scope---Where concurrent judgments and

decrees of Courts below not only reflected misreading and non-reading of material
evidence on record, but were also violative of law declared, would be interferes by High Court in
exercise its revisional jurisdiction.

Shaukat Ali Mehr for Petitioners.

Abdul Aziz for Respondents.

Date of hearing: 10th April, 2002.

JUDGMENT

Through this petition the petitioners have challenged the concurrent judgments and decrees i.e.
the judgment and decree of the learned trial Court dated 17-3-1995 vide which petitioners suit
for declaration was dismissed, as also the judgment and decree dated 12-9-1995 vide which
petitioners' appeal against the afore-referred, judgment met the same fate and the judgment and
decree of the learned trial Court was affirmed.
2. Facts in brief are that petitioners filed a declaratory suit contending therein that suit property
was owned by Inayat Ali husband of Nawab Bibi (one of the plaintiff/petitioner) who had died in
1957 that respondent Ghulam Hussain forged power of attorney in 1975 and transferred the
entire land of said Inayat Ali through a sale (9-2-1916) in favour of remaining
respondents/defendants who are his sons and nephew. The suit was contested and it was
contended that the general power of attorney and the sale-deeds were registered documents and
reflected valid transactions.

3. In terms of the divergent pleas of the parties, the following issues were framed:--

(1) Whether the power of attorney in favour of defendant No. 1 by Inayat Ali deceased is a
result of fraud and misrepresentation? OPP

(2) Whether the sale-deed dated 19-2-1976 in favor of defendants Nos.2 to 5 is against facts
and law and as such ineffective over the rights of the plaintiff? OPP

(3) Whether the subsequent sale-deed dated 25-3-1979 in favour of defendant No.6 is also
ineffective over the rights of the plaintiff? OPP

(4) Whether the suit is not maintainable in its present form? OPP

(5) Whether the suit is bad due to non joinder of necessary parties? OPD

(6) Whether the plaintiffs are estopped to bring this suit on account of their word and
conduct? OPD

(7) Relief.
4. During the trial the petitioners/ plaintiffs produced P.W.1 Ibad Ali who stated that Nawab
Bibi's husband Inayat Ali died about 25 years ago (statement of this witness was recorded on 14-
2-1984). In cross-examination he stated that he participated in the funeral of Inayat Ali and
denied the suggestion that Inayat Ali had died in Vehari about five years ago and that he was
making statement at the asking of Nawab Bibi.

5. P.W.2 is Khadim Hussain who stated that Nawab.Bibi used to get Batai share from her land
situated in Village Kotli Gul Muhammad. He denied the suggestion that Inayat had sold his
entire land in his lifetime. P.W.3 Faqir Muhammad stated that Nawab Bibi remained in their
village at Mouza Uddo Fatta in 1955-56 alongwith her husband and she had been getting her
Batai share of land situated in Gujranwala till 5/6 years prior to filing of suit. In cross -
examination he admitted that Ghulam Hussain respondent/ defendant had filed a suit for pre-
emption against him.

6. P.W.4 is Mst. Nawab Bibi one of the petitioners/plaintiffs who stated that about 24/25 years
ago she left Mouza Uddo Fatta and joined her brothers and her husband Inayat Ali died after six
months Le, in 1957. She further stated that she used to get her Batai share from the land owned
by Inayat Ali in Kotli Gul Muhammad, that Ghulam Hussain respondent/defendant who was
Inayat's cousin and resided in Mouza Uddo Fatta got prepared a forged General Power of
Attorney in Vehari and on the basis of the said Power of Attorney he got Inayat's entire land
mutated in the names of his sons and nephew through registered sale-deed. In cross-examination,
she stated that Allah Bakhsh used to cultivate the land of his husband and that she had taken last
Batai share from him 3/4 years prior to the suit; that Ghulam Hussain took forcible possession of
the land six months prior to the filing of the suit. She denied the suggestion that Ghulam Hussain
was appointed General Attorney by her husband Inayat Ali and that later sold the suit property
after receiving the sale money.

7. Respondents/defendams produced D. W.1 Muhammad Sharif son of Muhammad Din who

stated that his father Muhammad Din and uncle had appointed respondent Ghulam Hussain as
General Attorney, that Inayat Ali died at Vehari, that Muhammad Din his father died after 5/6
months and that there was no fraud. In cross-examination, he stated that Nawab Bibi was her
aunt; that when the Power of Attorney was executed he was not at Vehari, that he was not
consulted about that; that Ghulam Hussain the alleged attorney stayed with them for 4/5 days
when the general Power of Attorney was executed; that when Inayat Ali died his children were at
Vehari. He denied the suggestion that general power of attorney was forged.

8. D.W.2 Muhammad Sharif son of Rahim Bakhsh gave evidence to the effect that he had not
seen Inayat Ali in Mouza Kotli Gul Muhammad in cross-examination, he could not name the
new Chaukidar of the Kotli Gul Muhammad and denied the suggestion that Inayat Ali had died
before the said witness came to Kotli Gul Muhammad.

9. D.W.3 is Muhammad Saleh who stated that the suit-land was being cultivated by Allah
Bakhsh and that he did not give Batai share to the owners and that presently the land was in
possession of Ghulam Hussain.

10. D.W.4 is Ghulam Hussain one of the respondent/defendant himself who stated that General
Power of Attorney was executed in his favour by Inayat Ali and Muhammad Din; that Inayat Ali
died four and a half years prior to the filing of the suit at Vehari. In cross-examination, he denied
the suggestion that power of attorney was forged. He admitted that afore-referred Muhammad
Din was his brother-in-law. However, he failed to point out as to how many children Inayat Ali
deceased left. He refuted the suggestion that Inayat Ali had already died when the power of
attorney was executed and that he had got prepared the general power of attorney in collusion
with Muhammad Din. He admitted that except 5/6 acres, the remaining suit property is in
possession of the petitioners/plaintiffs.

11. The material documentary evidence produced by the parties which could be of relevance is
Exh.P.3 which is a copy of the Death Register indicating that Inayat Ali died on 19-12-1957,
whereas, Exh.D.1 is the copy of Death Register reflecting that Inayat Ali died on 2-5-1978.

12. The learned counsel for the petitioners in support of the petition has submitted that
concurrent judgments and decrees suffer from misreading and non-reading of material evidence
on record, inasmuch as, both the learned Courts below failed to appreciate that Exh.D.1 (copy of
the Death Register) indicating that Inayat Ali died on 2-5-1978 was not worth consideration, as
the document itself showed that afore-referred entry was made on 31-71981 i.e. after filing of the
suit as petitioners/plaintiffs filed the civil suit on 94-1979. This according to him was clearly an
attempt to create a defence in the instant suit; that both the Courts below failed to appreciate that
beneficiary of the power of attorney dated 2-4-1975 (Exh.P.5) and that of the registered sale-
deed dated 29-3-1979 (Exh.P.2) were the respondent/ plaintiff Ghulam Hussain the alleged
attorney and his sons and nephew. It is a settled law that attorney cannot transfer interest of the
property of the Principal in his own name or in the name of his blood relations without express
authority of the Principal and that the respondent/defendant failed to prove that general power of
attorney was executed bona fidely as none of the marginal witness was produced nor any scribe
was produced by the respondent/defendant.
13. The learned counsel for the respondent/defendant on the other hand, defended the impugned
judgments by submitting that concurrent judgments and decrees do not reflect any misreading or
non reading of evidence which could warrant interference in revisional jurisdiction of this Court.
He added that main stress of petitioners/plaintiffs during the trial was that Inayat Ali had died
much prior to the execution of the general power of attorney. The onus was on the
petitioners/plaintiffs which he miserably failed to discharge; that the learned trial Court after
requisite enquiry extended credence to Exh.D.1 and did not believe Exh.P.3 for valid reasons. He
added that the ground that attorney could not alienate the property in favour of his sons and
nephew was not taken in the plaint and petitioner cannot be permitted to go beyond the pleas.

14. Heard.

15. The crucial issues in the instant case are Issues Nos. 1, 2 and 3. The learned trial Court has
decided Issue No. 1 against the petitioner/plaintiff by disbelieving Exh.P.3. Referring to the
statements of P.W.1 and P.W.4 with regard to date of migration of Inayat Ali husband of
petitioner/plaintiff Nawab Bibi to Kotli Gul Muhammad, the learned trial Court held that if these
witnesses are believed then the date of death of Inayat Ali could not be 19-12-1957 as given in
Exh.P.3. The operative part is as under:--

"According to P.W.4 Inayat Ali remained ill about one or half and one year at Mouza
Uddo Fatta, P.W.4 stated in his cross-examination that they went to Kotli Gul
Muhammad about 5/6 years after the Pakistan came into being. If the period of migration
deducted, keeping in view the above figures the date of-migration to Kotli Gul
Muhammad becomes either 1952 or 1953. P. W.1 and P. W.4 have unanimously stated
that Inayat Ali died after six months he reached to Kotli Gul Muhammad. If this period of
six months is added to the above-said dates then the death year of Inayat Ali becomes
either 1953 or 1954 but according to Exh. P.3 Inayat Ali died on 19-12-1957. Apparently
there is a gap of four years not explainable by the record present on file. Nawab Bibi does
not know the year of her family's migration to Kotli Gul Muhammad, moreover, she was
unable to tell the year when she deposed her statement. The statement of P.W.1 and
P.W.4 does not endorse the entries of Exh. P.3. "

16. The afore-referred observation of the learned trial Court that P.W.1 and P.W.4 unanimously
stated that Inayat Ali died after six months of his shifting to Kotli Gul Muhammad, is not borne
out from the record. It was only P.W.1 who stated so. This finding therefore, is reflective of
misreading of evidence. Even otherwise the witnesses were deposing about something which
happened 25 years prior to the day when they were making the statements. Nobody is expected
to be very exact about the date and time, particularly of events which are not directly in issue.
The learned Court could not have disbelieved Exh.P.3 which is the copy of Death Register issued
by District Health Officer, Gujranwala, on account of a slip of memory of these witnesses.
Exh.P.3 reflects that the information with regard to death of Inayat was given to the concerned
office without delay i.e. on 23-12-1957. Nothing tenable was brought in evidence to rebut the
evidentiary value of this document to which a presumption of truth is attracted in terms of Article
90 of the Qanun-e-Shahadat Order, 1984, which reads as under:--

“90. Presumption as to genuineness to certified copies.---(1) The Court shall presume

every document purporting to be a certificate, certified copy or other document, which
is by law declared to be admissible as evidence of any particular fact and which purports
to be duly certified by any officer of the Federal Government or a Provincial Government
to be geniuses:

Provided that such document is substantially in the form and purports to be executed in
the manner directed by law in that behalf.

(2) The Court shall also presume that any officer by whom any such document purports to be
signed or certified held, when he signed it, the official character which he claims in such
document."

16. As against Exh.P.3, the document produced in rebuttal was Exh.D.1 which on the face of it
was dubious as admittedly the information with regard to the death of Inayat Ali as per this
document was given to the office on 31-7-1981 which is almost two years after the filing of the
instant suit and on the direction of Chairman, Municipal Committee, Vehari. The column relating
to the name of the informant is blank. All these circumstances adversely reflect on the
authenticity of this document. The preponderance of evidence leans in favour of Exh.P.3, which
shows that Inayat had died on 19-12-1957 and the alleged power of attorney Exh.P.5, dated 2-4-
1975 could not have been executed by him as he had already died. In the face of the oral and
documentary evidence a heavy onus lay on the respondent/defendant to prove the bona fides of
Exh.P.5 i.e. general power of attorney but surprisingly neither any marginal witness of the said
general power of attorney nor its scribe was produced in evidence and no reason whatsoever was
given either. The findings on Issue No. 1 rendered by both the Courts below for the afore-
referred reasons cannot be sustained.

17. Coming to Issues Nos.2 and 3, it is in evidence that petitioner/plaintiff had been receiving
Batai share of the land left by Inayat situated in Koth Gul Muhammad till 6 months prior to the
filing of the suit. If the land had been sold in 1976 and 1979 as claimed by respondents she
would not have received the Batai share as late as six months prior to the suit.

18. Admittedly, the respondent/ defendant as general attorney had mutated the suit property in
favour of his sons and nephew through registered sale-deed. Even if the general power of
attorney is considered in the instant case to be a genuine document, a heavy responsibility lay on
the attorney to ensure bona fides of the sale-deed that he wanted to execute in his capacity as an
Attorney. If he intended to mutate the land in favour of his sons and nephew, the law mandates
that an express authority from the Principal is a condition precedent. This is in line with the law
laid down by the august Supreme Court in "Fida Muhammad v. Muhammad Khan" PLD 1985
SC 341, wherein, at page 345 it was observed as under-

"Firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is
susceptible to doubt about its interpretation) to use all reasonable diligence in communicating
with the principal and seeking to obtain his instructions; and secondly, if the agent deals on his
own account with the property under agency, e.g. if he purchases it himself or for his own
benefit, he in his own interest should obtain the consent of the principal in that behalf after
acquainting him with all material circumstances on the subject, failing which the Principal is at
liberty to repudiate the transaction. "

The afore-referred ratio was reiterated in "Wali Muhammad v. Muhammad Ibrahim and another"
PLD 1989 Lah. 440 and "Malik Riaz Ahmad and others v. Mian Inayat Ullah and others" 1992
SCMR 1488.

19. Respectfully following the afore referred precedent case-law, I am of the view that the
findings of the Courts below on Issues Nos.2 and 3 cannot be sustained.

20. In view of the foregoing analysis of evidence and the law declared, the concurrent judgments
and decrees not only reflect misreading and non-reading of material evidence on record but also
are violative of the law declared. This petition is therefore, allowed both the impugned
judgments and decrees are set aside and petitioners/plaintiffs' suit is decreed with costs.

H.B.T./N-308/L Petition allowed.

1998 M L D 1805

[Peshawar]

Before Tariq Pervez, J

Qari Hafiz MUHAMMAD EHSANULLAH---Petitioner

versus

Syed AHMAD SHAH MASHADI, ADVOCATE and 3 others---Respondents

Criminal Miscellaneous No. 23 of 1997, decided on 11th May, 1998.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S. 465---Quashing of F.I.R.---F.I.R. filed against

accused/petitioner on allegations of forgery and fraud had been sought to be quashed on ground
that civil suit on the subject-matter was pending adjudication between parties and, pending civil
suit, no criminal proceedings could be initiated against accused/petitioner---Inherent powers of
High Court under S.561-A, Cr.P.C. according to which High Court could prevent abuse of
process of any Court and secure ends of justice though could not be limited or affected by any
provision of Criminal Procedure Code, 1898, but accused/petitioner had failed to show the abuse
of powers of any Court as no criminal proceedings were pending against him presently before
any Court--F.I.R. filed against accused/petitioner could not be quashed firstly that no legal bar
existed in resorting to adopt either course against a wrongdoer, civil proceedings or criminal, or
both at a time; secondly fraud was alleged against accused/petitioner and his co-accused and they
all were named in F.I.R. and were alleged to be involved by virtue of their joint venture in
procuring/making forged power of attorney in respect of property involved in the case; thirdly
after registration of F.I.R. investigation had commenced and record had been requisitioned by
High Court---Case being at initial stages of investigation, quashing of F.I.R. at that stage would
amount to stifle the working of the police in accordance with law---Alleged admission by
accused/petitioner before Civil Court as to the disputed power of attorneys being forged, also
required due consideration which could only be done after conducting thorough investigation---
Quashing of F.I.R. at such stage, the contents of which were directly sub judice before Civil
Court, would also amount to pre-empting jurisdiction of Civil Court which was seized of the
matter---Petition for quashing of F.I.R. was dismissed in circumstances.

1991 PCr.LJ 2177; 1994 PCr.LJ 67; PLD 1976 Lah.148 and 1975 PCr.LJ 27 ref.

Wasim Fazal for Appellant.

Muhammad Akbar Khan for Respondent.

Miss Nighat Afsar for the State.

Date of hearing: 11th May, 1998.

JUDGMENT

Instant petition is for quashment of F.I.R. No.713, dated 15-10-1997 of Police Station Mirpur
Abbottabad, of which the investigation is still in process.

Grounds taken up in the petition and argued at the bar are to the effect that the registration of the
case F.I.R. is illegal, because on the subject-matter, civil dispute between the parties is pending;
that pending civil suit, no criminal proceeding can be initiated against the petitioner; that
simultaneous proceeding tantamount5 to double jeopardy; that no criminal liability of the
petitioner can be spelt out from facts as given in the report; that, report has been made after long
delay, through civil proceedings started back in the year 1995.

2. Learned counsel for the petitioner in support of his submission relied on 1991 PCr.LJ 2177,
where F.I.R. was quashed because it was made after 3 months of the occurrence. Reference was
also made to 1994 PCr.LJ. page 67 where on the basis of facts given in F.I.R. no case of criminal
nature could be made and finally, reliance was placed on PLD 1976 Lahore page 148, to the
effect that when question for determination as to commission of forgery, fraud deception are
involved, then the proceedings before Criminal Courts are to be stayed, till they are decided by
Civil Court.

The last submission was in fact an alternate plea that in case the F.I.R. is not quashed, then, order
be passed that no further proceedings/step be taken pursuant to the report by the police.

3. To controvert the arguments of petitioner, learned counsel for respondent-complainant

submitted that F.I.R. has been properly lodged, that mere delay in filing the report is not sine qua
non for quashing the same, that, material so far placed on file and investigation conducted has
unveiled the criminal acts of the petitioner and his co-accused. That there is no legal bar in
continuing with pursuing two remedies, one fixing the civil liability and the other criminal, that
notwithstanding the fact of civil suit pending between the parties, it was in fact
disclosure/admission made by the petitioner in course of civil litigation that forgery and fraud
was admitted, on which the complainant- respondent was constrained to resort to criminal
proceedings. Learned counsel referred to 1975 PCr.LJ. 27 in support of his submission.

4. To understand the above legal counter-submissions I would here make reference to factual
background of the case.

Petitioner Haji Ehsanullah purchased land/plot measuring one Kanal and 10 Marlas, through
mutation dated 4-7-1994 on the basis of power of attorney attested on 1-3-1994. The original
owner in the Revenue Record is Mst. Shahnaz Hussain Shah wife of Ejaz Hussain Shah. Power
of attorney dated 1-3-1994 No. 1041 is allegedly executed at Karachi by Mst. Shahnaz in favour
of one Ali Askar Shah.
Second transaction took place when another plot of same size, i.e., one Kanal, 10 Marlas was
purchased by Qari Mahboobur Rehman from Hafiz Ehsanullah (petitioner) who got power of
attorney No.2361, dated 7-6-1994, executed again at Karachi by Mr. Ejaz Hussain in his favour.
It was the petitioner who then got attested six mutations bearing Nos.3380 to 3385, dated 26-1-
1995 in favour of Qari Mehboob.

Both the above sales are said to have been transacted through Paradise Property Dealers of which
Chan Zeb Abdul Waheed, Muhammad Riaz and Muhammad Anwar are co-partners.

5. Petitioner Hafiz Ehsanullah and Qari Mehboobur Rehman filed civil suit on 15-11-1995
against Mst. Shahnaz and Mr. Ejaz . Hussain for permanent injunction asking the Court to
restrain the defendants. not to interfere with their property rights, based on mutations dated 4-7-
1994 and dated 24-1-1995.

Mst. Shahnaz and Ejaz Hussain also filed suit on 7-4-1996 against Hafiz Ehsanullah, Qari
Mehboobur Rehman and others who allegedly have purchased their property through fictitious,
forged and bogus power of attorney. They accordingly challenged entries in the Revenue Record
in favour of defendants in their suit.

6. Interesting aspect of the case is that Paradise Property Dealers are not party to either of the
suits, but as admitted by learned counsel for the petitioner that co-partners of Paradise Property
Dealers (Chanzeb is still absconding) have struck a compromise with Hafiz Ehsanullah and Qari
Mehboobur Rehman to give them other plots in lieu of plots in dispute and would also make cash
payment of deficient amount.

Pursuant to said agreement Hafiz Ehsanullah filed his written statement in suit filed by
complainant where he admitted that two power of attorneys which form basis of their proprietary
rights are forged, he through another undertaking given in writing accepted to re-alienate the plot
in favour of complainant and would hand over the possession.

7. Many more details were highlighted by either side by making reference to different documents
presently on the file. I would avoid to make any comments as to any entry made, document
executed, or agreements reached upon, as all such matters are sub judice before learned Civil
Judge.
8. The question that is to be resolved at present is, if or not F.I.R. No.713, dated 15-10-1997, and
all consequential proceedings should be quashed on the ground of pendency of civil suit? My
answer is in negative, for the following reasons:--

(a) There is no legal bar in resorting to adopt either course against a wrong-doer, civil proceeding
or criminal, or both at a time.

(b) In the report, which is sought to be quashed; co-partners of Paradise Property Dealers are also
charged who are not party to either of the civil suit.

(c) Fraud .is alleged by all accused named in the Report and are said to be involved by virtue of
their joint venture in procuring/making forged power of attorneys.

(d) After the registration of the case, the investigation has just commenced when the instant
quashment application was filed. The record has since been requisitioned by this Court, no
further investigation as to the genuineness or otherwise of the power of attorneys could be
ascertained. The case being at initial stages of the investigation, the quashment of the F.I.R. at
this stage would tantamount to stifle the working of the police in accordance with law.

(e) The alleged admission by the petitioner before the Civil Court as to the power of attorneys
being forged also requires due consideration which can only be done after conducting thorough
investigation and of course is subject to trial.

(f) The quashment of the F.I.R. at this stage, the contents of which are directly sub judice before
the Civil Court would also amount to pre-empting the jurisdiction of the Civil Judge who is
presently seized of the matter.

9. No doubt that section 561-A, Cr.P.C. is regarding the inherent power of the High Court
whereunder no provisions of the Criminal Procedure Code can limit or affect the power of this
Court to make any such order as may be necessary to give effect to any order under this Code, or
to prevent abuse of the process of any Court, or otherwise to secure the ends of justice.

In the instant case, the petitioner has miserably failed to show the abuse of powers of any Court,
as no criminal proceedings are pending against him presently, before any Court, As to "secure
the ends of justice" this part of the section is not worded or inserted to help the accused but is
equally applicable to the case of victim or complainant. Either of the party if feels like that the
ends of justice would be more secured by invoking the provisions of section 561-A, Cr.P.C. can
make an application to this Court. The apparent facts, rather suggest that ends of justice would be
rather more secured if the investigation is allowed to be carried out on the basis of the F.I.R.
registered against the petitioner and his co-accused and if they are found prima facie involved the
case will be then put up before the learned trial Judge who is only the competent forum to decide
the fate of the case on the basis of evidence led before it either oral or documentary.

10. These are detailed reasons for my short order passed on even date. Quashment petition is
dismissed alongwith Criminal Miscellaneous.

H.B.T./114/P Petition dismissed.

1998 C L C 295

[Lahore]

Before Raja Muhammad Khurshid, J

MUHAMMAD ASMAT ULLAH alias MUHAMMAD

ASMAT---Petitioner

versus

Mst. SURAYA KAUSAR---Respondent

Civil Revision No. 1439 of 1996, decided on 14th November, 1996,

Civil Procedure Code (V of

1908)---

----O. XXXIX, Rr.1, 2 & S. 115---Revision---Temporary injunction,

requirements of---Allegation of forgery---Forum for
trial---Petitioner invoked revisional jurisdiction of High Court
praying that temporary injunction vacated by Appellate Court be
restored on the plea that petitioner was in possession of land in
question and that respondent was claiming same having purchased
from petitioner through misrepresentation and forged power of
attorney---Held, question of forgery could only be gone into after
enquiry at the trial but at present it was to be seen if there was prima
facie case in favour of petitioner--Record showed that mutation was
attested by Revenue Officer publicly--- Nobody took objection at
that time, as such transaction appeared to be solemn till it was
proved to be tainted with forgery---Balance of convenience was also
in favour of respondent who was likely to suffer a loss---Petitioner
could not be equipped with temporary injunction in circumstances.

Akhtar Masood Khan for Petitioner.

Syed Fiaz Ahmad Sherazi for Respondent

ORDER

This is a revision petition against the order dated 9-5-1996, passed

by Mr. Sardar Ahmad Chaudhry, learned Additional District Judge,
Sargodha, whereby, the appeal filed by Mst. Surraya Kausar against
Muhammad Asmat Ullah i.e. the present petitioner was accepted
and the order dated 4-7-1995, passed by Miss Meh Rukh Aziz,
learned Civil Judge, Sargodha was set aside. .

2. Brief facts are that the petitioner filed a suit for declaration
through his attorney Muhammad Iqbal against Surraya Kausar
regarding the land measuring 55-1/4 Kanals, fully detailed in the
head-note of the plaint. It was contended that the petitioner/plaintiff
was in possession of the land in question and that the
respondent/defendant was claiming the land in question having
purchased from the petitioner through his attorney Muhammad
Sadiq vide Mutatidn No.488, dated 2Q-9-1994. It was contended
that the aforesaid mutation was based on fraud, misrepresentation
and forgery. Further contended that, it was without consideration
and as such, not binding on the petitioner.

3. An application for temporary injunction was moved before the

learned Trial Court which was accepted by the learned Civil Judge
as stated above. The respondent, feeling aggrieved of the acceptance
of the petition for temporary injunction went in appeal which was
accepted as mentioned above.

4. It is contended by the learned counsel for the petitioner that the

respondent claimed to have purchased the land in question through
the disputed mutation for an ostensible price of Rs.1,00,000 on the
basis of a power of attorney executed by the petitioner in favour of
his father Muhammad Sadiq which was registered in Pakistan. It is
alleged that the aforesaid document was, in fact, forged by making
interpolation in the name of original executant namely Muhammad
Azam i.e. another brother of the petitioner. It was, therefore,
contended that the power of attorney relied upon by the respondent
was actually a forged document and as such, did not authorise the
aforesaid Muhammad Sadiq to enter into any sale.

5. Learned counsel for the respondent contended that there was no

interpolation in respect of the aforesaid power of attorney which
was never challenged even in the plaint. In this context, it was
alleged that Muhammad Sadiq was fully authorised by the petitioner
to sell the land and after having entered into such sale, has backed
out by inventing a false plea of forgery and misrepresentation. On
the contrary, the petitioner had in fact received Rs.8,50,000 for the
aforesaid land but to save the stamp duty, etc., the petitioner had
shown ostensible price of Rs.1,00,000 at the time of attestation of
mutation. It was, therefore, contended that a conspiracy was hatched
to undo the solemn transaction entered into by the petitioner through
his father acting on his behalf as his general attorney.

6. I have given my careful attention to the arguments, addressed at

the Bar.

The petitioner has challenged sale Mutation No.488 in favour of the

respondent on the ground that it was without consideration, forged
and fictitious. In this context, it was alleged that in fact the power of
attorney was executed by one Muhammad Azam, another brother of
the petitioner in favour of his father Muhammad Sadiq, but the
respondent committed forgery to convert it in the name of the
petitioner by changing the word ' Azam' to word ' Asmat' the photo
copies of both the documents i.e. executed by Muhammad Azam as
well as purportedly executed by Muhammad Asmat have been
placed on record. The question of interpolation or forgery can only
be gone into after thorough enquiry at the trial. At present, it is to be
seen if there is a prima facie case in favour of the petitioner so as to
equip him with a temporary injunction. In this respect, the perusal of
the photo copy of the mutation deed No.488' shows that the
petitioner had sold the land in question through his father acting as
his general attorney. The mutation was attested in the general
meeting of the village by the Revenue Officer in the presence of the
aforesaid Muhammad Sadiq who is the real father of Muhammad
Asmat petitioner. Nobody took any objection at that time which
prima facie shows that Muhammad Sadiq acting as general attorney
for the petitioner being his father had entered into the transaction in
question. As such, prima facie, the transaction appeared to be
solemn till it was proved to be tainted with forgery or
misrepresentation. Even otherwise, nothing was said in respect of
the document itself that it was result of forgery or misrepresentation
though the mutation in dispute was challenged on the abovesaid
grounds.
7. In the light of above discussion, the petitioner had no prima facie
case so as to be equipped with a temporary injunction. The balance
of convenience is also on the side of the respondent who is likely to
suffer irreparable loss if an injunction is granted to the petitioner to
frustrate the sale in question at this stage. As such, there is no good
ground to interfere with the order dated 9-5-1996 passed by the
learned Additional District Judge, Sargodha, whereby, the
application for temporary injunction moved by the petitioner against
the respondent in the suit below was dismissed. Accordingly, the
revision petition being meritless is dismissed. Costs to follow the
event.

C.M.S./M-427/L
Revision dismissed.

1994 M L D 1378

[Lahore]

Before Muhammad Nawaz Abbasi, J

RAHIM UD DIN and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No:259/B of 1994, decided on 2nd March, 1994.

(a) Criminal Procedure Code (V of 1898)----

----S.497(2)---Penal Code (XLV of 1860), S.419/420/467/468/471/109---Prevention of

Corruption Act (II of 1947). S.5(2)---Bail, grant of---Passing of decree in favour of one accused
on the allegedly forged power of Attorney in favour of other accused in the absence of any other
evidence against them, whether was sufficient to hold them guilty was a matter of evidence,
particularly when the said decree had remained unexecuted causing no actual loss to the land
owners---Forgery alleged to have been committed in the year 1970 was yet to be proved---
Property involved in the case being of large value was no ground to refuse bail---Bail also could
not be withheld due to pendency of investigation on .account of non-traceability of same.
Revenue Officials--Case against accused being one of further inquiry, they were admitted to bail
accordingly.

(b) Penal Code (XLV of 1860)----

----S.467---Valuable security---General power of attorney creating a legal right in the property

with the power of its disposal is a valuable security.

Umar Kamal Khan for Petitioners

Sheikh Abdur Rahim for the State.

ORDER

The petitioners being-:accused in a -case under 'section 419/420/467/468/471/109, P.P.C. read

with section 5(2) of the Prevention of Corruption Act; 1947 registered against them vide F.I.R.
No. 16, dated 26-4-1993 with Police Station ACE, Multan Region, have -moved this application
under section 497/498, Cr.P.C. for the grant of bail after refusal of the same by the learned
Special Judge Anti-Corruption. Dera Ghazi Khan, Camp at Muzaffargarh vide order, dated 7-2-
1994
2. The relevant facts for the purpose of the disposal of <this petition are as under:-__

The allegations against. Ghulam Rasool petitioner are that he after preparing a forged general
power of attorney on behalf of Muhammad Akram Khan, Muhammad Asiam Khan, Muhammad
Afzal Khan, Muhammad Ahmad Khan, and Arjamand Khan sons, Mst. Naseer Khanam and Mst.
Amino daughters and Mst. Maqsood-un-Nissa widow of Muhammad Akhtar, in his name in
1970, transferred land measuring 588 Kanals owned by the above-named persons to Rehim-ud-
din petitioner thorough a consent decree, dated 18-19-1971 obtained from the civil court.

3. The learned-counsel for the petitioners urged bail 'on the following, grounds:--

(i) That the case has been registered against the petitioners with an. unexplained
delay of 24 years.

(ii) That pending an application under section 12(2), CP G. for setting aside the
decree in question, the criminal, prosecution against the petitioners on the basis
of-alleged forged power of attorney is abuse of the process of law.

(iii) That the, decree remained unexecuted and nothing was, gained by the petitioners
causing any actual loss to, the owners of the land.

(iv) That a lengthy probe of revenue record consuming much time shall be required
and there being no. chance of early disposal of the case against the petitioner, they
deserve a o cession o bail.

(v) That guilt or innocence of the petitioners depending upon the question whether
decree was obtained through fraud is yet to be decided by the trial Court.

4. The learned counsel argued that the negative report of finger print expert being not a
conclusive proof of the allegation against the petitioner, the case against them requires further
enquiry and they pending trial are entitled to the concession of bail by virtue of subsection (2) of
section 497, Cr.P.C.

5. The learned counsel appearing on behalf of the complainant and the State opposed the bail on
the ground that the petitioners committing. fraud upon the Court made an attempt to deprive the
poor family from valuable property, do not deserve the concession of bail.

6. Having considered the arguments advanced by the learned counsel for the parties and perused
the relevant record. I feel persuaded to agree with the learned counsel for the petitioners that the
case being of special feature involving a lengthy probe into record requires further inquiry. The
investigation of the case is being conducted by the S.P. of the Anti-Corruption Establishment,
Multan. As per finger print expert report the power of attorney was found, a forged document
and the investigation against the petitioners is a complete but challan shall be submitted after
conducting the investigation against Revenue Officials involved in the case who are not yet
traceable.

8. A general power of attorney creating a legal right in the property with the power of its disposal
undoubtedly is a valuable security, but the real question for determination shall be as to whether
this valuable security was a forged document constituting an offence under section 467, P.P.C.
and the evidence of forgery against the petitioners is available to connect them with, commission
of offence. If ultimately the power of attorney in question is not found a forged document as
alleged, the decree obtained from Civil Court even if obtained without the consent of original
owners, the criminal liability of the petitioners shall be doubtful.

9. The alleged forgery was committed in 1970 and decree was obtained in 1971. The criminal
prosecution of the petitioners for the offence, they being charged would be a futile exercise.
After dismissal of the application under section 12(2), C.P.C. moved by the complainant party
for setting aside the decree in question some where- in 1989 a fresh application under the said
provisions of law was moved in December, 1989 which is still pending adjudication. The delay
in lodging the report prior to the filing of first application under section 12(2), C.P.C. before the
Civil Court for want of knowledge is understandable but no explanation has been offered for not
initiating the criminal prosecution against the petitioners immediately after acquiring the
knowledge about the fraud. The question whether the alleged act of forgery was the sole
responsibility of the petitioners or they themselves prayed in the hands of a third party including
some one from the original owners to exclude others from share of property needs determination.
Mere fact that power of attorney was executed in favour of Ghulam Rasool and consequently
decree was passed in favour of petitioners in absence of any other evidence against them whether
shall be sufficient to hold them guilty, is a matter of evidence. Admittedly the decree in question
remained unexecuted causing no actual loss to the land owners, the charges against the
petitioners except under section 467, P.P.C. being punishable with sentence less than ten years,
do not fall within the prohibitory clause. The application of section 467, P.P.C. shall depend
upon the proof that petitioners were not only beneficiary of the documents but they allegedly
committing forgery prepared the fake documents. The property involved of large value, itself is
no ground to refuse bail. The forged documents are already in the custody of Investigating
Officer, there is no possibility of tempering with evidence by the petitioners. The pendency of
investigation vis-a-vis revenue official who are not traceable is also no ground to withhold the
bail of the petitioners.

10. Without prejudice to the merits of the case, there being sufficient ground for further inquiry
into the guilt of the petitioners, they are directed to be released on bail subject to their furnishing
bail .bonds in the sum of Rs.2,00,000 each with two sureties each in the like amount to the
satisfaction of

A.C./Duty Magistrate, Muzaffargarh.

N.H.Q./R-131/L Bail allowed

1994 M L D 1378

[Lahore]

Before Muhammad Nawaz Abbasi, J

RAHIM UD DIN and another---Petitioners

versus
THE STATE---Respondent

Criminal Miscellaneous No:259/B of 1994, decided on 2nd March, 1994.

(a) Criminal Procedure Code (V of 1898)----

----S.497(2)---Penal Code (XLV of 1860), S.419/420/467/468/471/109---Prevention of

Corruption Act (II of 1947). S.5(2)---Bail, grant of---Passing of decree in favour of one accused
on the allegedly forged power of Attorney in favour of other accused in the absence of any other
evidence against them, whether was sufficient to hold them guilty was a matter of evidence,
particularly when the said decree had remained unexecuted causing no actual loss to the land
owners---Forgery alleged to have been committed in the year 1970 was yet to be proved---
Property involved in the case being of large value was no ground to refuse bail---Bail also could
not be withheld due to pendency of investigation on .account of non-traceability of same.
Revenue Officials--Case against accused being one of further inquiry, they were admitted to bail
accordingly.

(b) Penal Code (XLV of 1860)----

----S.467---Valuable security---General power of attorney creating a legal right in the property

with the power of its disposal is a valuable security.

Umar Kamal Khan for Petitioners

Sheikh Abdur Rahim for the State.

ORDER
The petitioners being-:accused in a -case under 'section 419/420/467/468/471/109, P.P.C. read
with section 5(2) of the Prevention of Corruption Act; 1947 registered against them vide F.I.R.
No. 16, dated 26-4-1993 with Police Station ACE, Multan Region, have -moved this application
under section 497/498, Cr.P.C. for the grant of bail after refusal of the same by the learned
Special Judge Anti-Corruption. Dera Ghazi Khan, Camp at Muzaffargarh vide order, dated 7-2-
1994

2. The relevant facts for the purpose of the disposal of <this petition are as under:-__

The allegations against. Ghulam Rasool petitioner are that he after preparing a forged general
power of attorney on behalf of Muhammad Akram Khan, Muhammad Asiam Khan, Muhammad
Afzal Khan, Muhammad Ahmad Khan, and Arjamand Khan sons, Mst. Naseer Khanam and Mst.
Amino daughters and Mst. Maqsood-un-Nissa widow of Muhammad Akhtar, in his name in
1970, transferred land measuring 588 Kanals owned by the above-named persons to Rehim-ud-
din petitioner thorough a consent decree, dated 18-19-1971 obtained from the civil court.

3. The learned-counsel for the petitioners urged bail 'on the following, grounds:--

(i) That the case has been registered against the petitioners with an. unexplained
delay of 24 years.

(ii) That pending an application under section 12(2), CP G. for setting aside the
decree in question, the criminal, prosecution against the petitioners on the basis
of-alleged forged power of attorney is abuse of the process of law.

(iii) That the, decree remained unexecuted and nothing was, gained by the petitioners
causing any actual loss to, the owners of the land.

(iv) That a lengthy probe of revenue record consuming much time shall be required
and there being no. chance of early disposal of the case against the petitioner, they
deserve a o cession o bail.
 (v) That guilt or innocence of the petitioners depending upon the question whether
decree was obtained through fraud is yet to be decided by the trial Court.

4. The learned counsel argued that the negative report of finger print expert being not a
conclusive proof of the allegation against the petitioner, the case against them requires further
enquiry and they pending trial are entitled to the concession of bail by virtue of subsection (2) of
section 497, Cr.P.C.

5. The learned counsel appearing on behalf of the complainant and the State opposed the bail on
the ground that the petitioners committing. fraud upon the Court made an attempt to deprive the
poor family from valuable property, do not deserve the concession of bail.

6. Having considered the arguments advanced by the learned counsel for the parties and perused
the relevant record. I feel persuaded to agree with the learned counsel for the petitioners that the
case being of special feature involving a lengthy probe into record requires further inquiry. The
investigation of the case is being conducted by the S.P. of the Anti-Corruption Establishment,
Multan. As per finger print expert report the power of attorney was found, a forged document
and the investigation against the petitioners is a complete but challan shall be submitted after
conducting the investigation against Revenue Officials involved in the case who are not yet
traceable.

8. A general power of attorney creating a legal right in the property with the power of its disposal
undoubtedly is a valuable security, but the real question for determination shall be as to whether
this valuable security was a forged document constituting an offence under section 467, P.P.C.
and the evidence of forgery against the petitioners is available to connect them with, commission
of offence. If ultimately the power of attorney in question is not found a forged document as
alleged, the decree obtained from Civil Court even if obtained without the consent of original
owners, the criminal liability of the petitioners shall be doubtful.

9. The alleged forgery was committed in 1970 and decree was obtained in 1971. The criminal
prosecution of the petitioners for the offence, they being charged would be a futile exercise.
After dismissal of the application under section 12(2), C.P.C. moved by the complainant party
for setting aside the decree in question some where- in 1989 a fresh application under the said
provisions of law was moved in December, 1989 which is still pending adjudication. The delay
in lodging the report prior to the filing of first application under section 12(2), C.P.C. before the
Civil Court for want of knowledge is understandable but no explanation has been offered for not
initiating the criminal prosecution against the petitioners immediately after acquiring the
knowledge about the fraud. The question whether the alleged act of forgery was the sole
responsibility of the petitioners or they themselves prayed in the hands of a third party including
some one from the original owners to exclude others from share of property needs determination.
Mere fact that power of attorney was executed in favour of Ghulam Rasool and consequently
decree was passed in favour of petitioners in absence of any other evidence against them whether
shall be sufficient to hold them guilty, is a matter of evidence. Admittedly the decree in question
remained unexecuted causing no actual loss to the land owners, the charges against the
petitioners except under section 467, P.P.C. being punishable with sentence less than ten years,
do not fall within the prohibitory clause. The application of section 467, P.P.C. shall depend
upon the proof that petitioners were not only beneficiary of the documents but they allegedly
committing forgery prepared the fake documents. The property involved of large value, itself is
no ground to refuse bail. The forged documents are already in the custody of Investigating
Officer, there is no possibility of tempering with evidence by the petitioners. The pendency of
investigation vis-a-vis revenue official who are not traceable is also no ground to withhold the
bail of the petitioners.

10. Without prejudice to the merits of the case, there being sufficient ground for further inquiry
into the guilt of the petitioners, they are directed to be released on bail subject to their furnishing
bail .bonds in the sum of Rs.2,00,000 each with two sureties each in the like amount to the
satisfaction of

A.C./Duty Magistrate, Muzaffargarh.

N.H.Q./R-131/L Bail allowed

1994 M L D 1059

[Lahore]

Before Gul Zarin Kiani, J

ALLAH BAKHSH---Petitioner

versus

Mst. SHER KHANUM BIBI and 3 others---Respondents

Civil Revision No.496 of 1992, decided on 6th February, 1994.

Contract Act (IX of 1872)---

----S.235---Transfer of Property Act (IV of 1882), S.41---Civil Procedure Code (V of 1908),

S.115---Suit for cancellation of power of attorney and rescission of sales effected on basis
thereof---Suit decreed and upheld in appeal---Two separate revisions filed against the same
judgment by two different persons affected by judgment of Appellate Court---Both parties
claimed to be purchasers for value as transfer in their favour was effected by the alleged attorney
of female owner---In one of the revisions wherein the other revision petitioner was also made a
party, High Court affirmed judgment of Appellate Court whereby plaintiff's (female owner's) suit
was decreed and it was found that registered power of attorney in favour of the alleged attorney
was fake and fabricated, therefore, sales effected by him were set aside---Such decision of High
Court was affirmed by Supreme Court---Plea of bona fide transferee for value set up by
purchaser was specifically turned down by the High Court---As for connected revision petition
against the common judgment which remained pending throughout, there was insuperable
hurdles for the petitioners to cross in view of judgment of High Court and Supreme Court
whereby transfers in favour of vendees on basis of impugned power of attorney were set aside on
the ground that same was fake and fabricated---Findings of High Court and Supreme Court
decided earlier, which had emanated from the common judgment were taken to be correct by the
Court while hearing connected revision---Even on existing record High Court agreed with
findings rendered earlier by the same Court---Record showed that power of attorney on basis of
which transfer deeds in favour of two petitioners (in both revisions) was effected was in fact fake
and fabricated---Petitioner, therefore, could not be deemed to be a bona fide transferee for value-
--Principle of law enacted in S.41, Transfer of Property Act, 1882, was inapplicable---Petitioner
could not be allowed to claim valid title on basis of forged power of attorney---Case was covered
by S.235, Contract Act, 1872, which would give no support to petitioner---Sale of land in
question, on basis of forged power of attorney was, thus, declared to be null and void.
Ganpat Prasad and another v. Sarju ILR 34 All. 168 rel.

Masood Mirza for Petitioner.

ORDER

At the outset, it is apt to observe that the judgment in Civil Revision No.508-D of 1992 by this
Court on 2-5-1992 and that of the Honourable Supreme Court affirming it on June 7, 1993 were
insuperable hurdles for the petitioner to cross over. Nonetheless, a succinct reference to the facts
of the case was necessary.

Mst. Sher Khanurn owned 286 Kanals, 9 Marlas of land in Village Behal Dagger of Tehsil and
District Bh4kkar. By a deed registered on 6-5-1970, one War Ali Khan assumed the role of a
general attorney on her behalf. By a deed registered on 24-5-1980, he sold her 100 Kanals of
land in the village to Allah Bakhsh petitioner. Sale-deed was implemented in Revenue Records
by attestation of Mutation No.29, on 18-2-1981. On the same day, pretended attorney sold 186
Kanals,1 Marla of her land in favour of Sardar Ali Khan, who further transferred it to Sher
Samand Khan through a Court decree Mst. Sher Khanum filed a civil suit for cancellation of the
deed of general power of attorney and rescission of the sales of her lands on its basis. The
vendees from the general attorney contested the suit on merits. On 24-6-1989, the trial Court
dismissed the plaintiffs suit. In appeal, its decision was reversed on 18-2-1992 by Additional
District Judge, Bhakkar who gave decree for the land in dispute to the plaintiff Mst. Sher
Khanum. Sher Samand Khan preferred a separate revision petition in this Court. It was registered
as Civil Revision No.508-D of 1992. It was dismissed in limine by the High Court on 2-5-1992
by affirming the judgment of the lower appellate Court. A petition for Special Leave to Appeal
filed in the Supreme Court failed on 7th June, 1993. It was held in the High Court and its
decision was affirmed by the Supreme Court that the registered power of attorney in favour of
War Ali Khan was a fake and fabricated document. Therefore, it had no legal sanctity for
protection of sales of the land on its basis. Plea of bona fide transferee for value set up by Sher
Samand Khan was specifically turned down in the High Court. Petitioner who had lost the land
purchased by him preferred a separate Civil Revision No.496 of 1992. It came up before a Bench
of this Court on 14-4-1992, when it was informed that Sher Samand Khan who was respondent
No.4 in the instant civil revision had also filed a revision petition against the judgment of the
lower appellate Court. Thereupon, it was observed by the Bench that necessary particulars of the
aforesaid civil revision shall be supplied to the office and the office will place the file of that
revision petition also with the file of Civil Revision No.496 of 1992. However, it could not
happen and both the civil revisions emerging from a common judgment were heard separately.
Civil Revision No.508-D of 1992 was dismissed in limine, but the connected Civil Revision
No.496 of 1992 awaited a separate decision. It was listed, on 8-11-1992 before a Bench of this
Court, when it was apprised of the decision of the High Court in the connected civil revision and
pendency of a petition for leave to the appeal from the judgment given in it. Eventually, the
Bench was intimated that even the petition for leave to appeal had been dismissed by the
Supreme Court. In this background, present civil revision was heard in limine. Petitioner was a
respondent in Civil Revision No.508-D of 1992. Since it was dismissed in limine, he had no
chance to be heard. In petition for special leave to appeal filed in the Supreme Court, he was
shown as respondent No.A There too he did not join the hearing, though he had chance for it: In
the connected civil revision, there were categorical findings in the judgment of the High Court
and the Supreme Court that the general power of attorney executed in favour of War Ali Khan
was a forged document and the sales of the land made on its basis could not be sanctified. On the
same record, a different .finding on the deed of `power of attorney was not possible. On
dismissal of petition for special. leave to appeal, judgment of the High Court attained finality. It
was not a permissible course in law to remove substrata from the final judgments of the High
Court as well as the Supreme Court for disturbing their clear finality. learned counsel also found
it difficult to contend for a different course. Therefore, I shall take the findings recorded in Civil
Revision No.508-D of 1992 as correct. Even otherwise, on the existing records, I shall whole-
heartedly agree with my learned brother who elaborately discussed the evidence produced by the
parties in the case and gave clear findings on the un-genuineness of the deed of power of
attorney in favour of Zafar Ali Khan and his incapacity to sell the land belonging to Mst. Sher
Khanum. Furthermore, the petitioner could not be found a bona fide transferee of the land in
dispute. The owner was not a privy to the fraud committed by Zafar Ali Khan, There were
indications on record that the local Patwari was a close relation of the petitioner and the sale of
the land in favour of the petitioner was collusively manoeuvred. Principle of law enacted in
section 41 of the Transfer of Property Act, 1882 was inapplicable. On the basis of forged power
of attorney, the petitioner could not be allowed to claim a valid title to the land in dispute. The
case is covered by section 235 of the Contract Act, 1872 which gave no support to the petitioner.
In Ganpat Prasad and another v. Sarju ILR 34 Allahabad Series page 168 on construction of
section 235 of the Contract Act, 1872, a Division Bench of the Allahabad High Court took this
view, "It seems to us clear that section 235 was intended to apply to both classes of cases. There
is no distinction in principle between the case of a man who represents that he has authority from
another when he has no authority whatever, and the case of a man who represents that he. has
certain authority from another when he has authority of another description. In neither case can
the man who makes the representation be said to be the authorised agent of the other with
reference to the matter on which he has no authority". The pretended authority having been
found fraudulent and nonexistent, the sale of the land made on it was null and void.

In view of the aforesaid, civil revision is devoid of merit and is dismissed in limine.

AA./A-558/L Revision dismissed.

1993 S C M R 1565

[Supreme Court of Pakistan]

Present: Shafiur Rahman, Muhammad Afzal Lone and

Manzoor Hussain Sial, JJ

SHER SAMAND KHAN---Petitioner

versus

ADDITIONAL DISTRICT JUDGE, BHAKKAR and 3 others---Respondents

Civil Petitions Nos. 589/L and 593-L of 1992, decided on 7th June, 1993.

(On appeal from the judgment/order, dated 18-3-1992 and 2-5-1992, of the Lahore High Court,
Lahore, passed in W.P. No. 2503/92 and C.R. No.508/D/92, respectively).

(a) Civil Procedure Code (V of 1908)---

----O.III, R. 2---Constitution of Pakistan (1973), Art. 185 (3)---Concurrent findings of First

Appellate Court and the High Court that deed of power of attorney in question was a forged
document, had not been seriously contested by petitioners in the course of hearing of petition for
leave to appeal--Petitioners, however, had emphatically argued that husband of plaintiff did not
hold power of attorney from her; that power of attorney having not been filed in Court, suit was
not competently filed---No such objection was taken in written statement and no issue was
framed in that behalf---Had defendants raised such plea in written statement, plaintiff might have
placed deed in question on Trial Court's file---Such contention was also raised before High Court
but was turned down---No grounds existed to differ with finding of High Court---Transaction in
dispute, prepared on the basis of forged power of attorney by the defendants was also hit by the
rule laid down by Supreme Court in Fida Muhammad's case PLD 1985 SC 341---Leave to appeal
was refused.

Fida Muhammad v. Pir Muhammad Khan PLD 1985 SC 341 ref.

(b) Civil Procedure Code (V of 1908)--------

----S. 12 (2)---Constitution of Pakistan (1973), Art. 185 (3)---Decree of Civil Court as per
finding of High Court was procured by fraud and misrepresentation; thus, the matter fell within
the mischief of S. 12 (2), Civil Procedure Code, 1908---Plaintiff's suit having been decreed, with
which High Court did not interfere proceedings culminating in the High Court's order brought
under challenge in Constitutional petitions were merely consequential in character---Leave to
appeal was refused in circumstances.

Gulzar Ahmad Qureshi, Advocate Supreme Court instructed by Muhammad Aslam Chaudhry,
Advocate-on-Record for Petitioner (in both cases.)

Shahid Hussain Kadri, Advocate Supreme Court with SAW Aasim Jafri, Advocate-on-Record
for Respondent (in both cases).

Date of hearing: 7th June, 1993,

JUDGMENT

MUHAMMAD AFZAL LONE, J.---This judgment shall dispose of C.P. 589/L/92 and C.P.
593/L/92, as the same property is the subject-matter thereof.
2. The facts are that Mst. Sher Khanum respondent owned the land measuring 286 Kanals, 9
Marlas in village Behal Daggar, Tehsil and District Bhakkar. War Ali Khan respondent, acting as
her Attorney on the strength of deed of general power of attorney dated 6-5-1980, out of the said
land, sold away an area measuring 186 Kanals, 1 Marla to his brother Sardar Ali Khan and 100
Kanals to Allah Bakhsh respondent. Mst. Sher Khanum filed a suit for declaration that the deed
of power-of-attorney was a forged document. Consequently a challenge was also thrown to the
validity of two sale deeds and the mutations sanctioned on the foundation thereof. She claimed to
be the owner of the land. The suit was filed by her through her attorney and husband namely
Sakhi Gul Khan, which was dismissed by. the trial Court. However, the plaintiff's first appeal
was accepted and the suit decreed in her favour. The petitioner's revision before the High Court
was dismissed in limine on 2-5-1992. This dismissal is under challenge in C.P. No.593/L/92.

3. The facts leading to the institution of the other petition are that the land transferred to Sardar
Ali Khan was later on alienated by him by way of sale to the petitioner. It is contended that a
dispute arose between the parties which was referred to Arbitration and the Arbitrator's award
made rule of the Court vide Civil Court's judgment dated 15-9-1983. Mst. Sher Khanum through
her husband filed an application under section 12(2), C.P.C. for cancellation of the said decree. It
was disallowed by the trial Court, but on revision the learned Additional District Judge accepted
the same vide his order dated 18-2-1992, against which the petitioner's writ petition was
dismissed in limine on 18-3-1992. He now seeks leave to appeal from the High Court's order.

4. Both the First Appellate Court as well as the High Court for good reasons rendered a
concurrent finding that the deed of power-of-attorney is a forged document. This finding, in the
course of hearing of these petitions, has not been seriously contested before us, and what is
emphatically argued is that the husband of Mst. Sher Khanum did not hold any
power-of-attorney from her; that as no such document was filed in the Court, the suit was not
competently filed.

5. From the perusal of the record we find that this objection is not reflected in the written
statement and no issue was framed in this behalf. Had the petitioner raised this plea in the written
statement, the respondent might have placed the deed in question on the trial Court's file. This
contention was also raised before the High Court, but was turned down; with which we are not
persuaded to differ. The transactions are also hit by the rule laid down by this Court in Fida
Muhammad v. Pir Muhammad Khan (PLD 1985 S C 341).
6. As regards the other petition, the learned counsel's grievance is that the petitioner purchased
the land from Sardar Ali Khan about 2/1-2 years after its acquisition by the latter, the transaction
was routed through Arbitration proceedings and award made rule of the Court in accordance with
the law. The submission is that, in the circumstances of the case, the application under section 12
(2), C.P.C. was misconceived.

7. There is no substance in these submissions. Since the decree of the Civil Court, as held by the
High Court, was procured by fraud anti misrepresentation the matter fell within the mischief of
section 12 (2) ibid. In any case, the suit of Mst. Sher Khanum having been decreed, with which
the 8 High Court did not interfere, the proceedings culminating in the High Court's order brought
under challenge in C.P. 589/L/ 92 are merely consequential in character.

Both the petitions having been found without merit, are dismissed and the leave prayed for
refused.

AA./S-754/S Leave refused.

1990 P Cr. L J 97

[Lahore]

Before Sajjad Ahmad Sipra, J

GHULAM SHABBIR and 6 others—Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 791/Q of 1988/BWP, heard on 10th April, 1989.

Criminal Procedure Code (V of 1898)---

----Ss. 195, 476 & 561-A---Penal Code (XLV of 1860), Ss.420, 467, 468 & 471---Quashing of
proceedings---Private complaint under Ss.420, 467, 468 & 471, P.P.C. filed by complainant in
Court of Magistrate regarding a forged power of attorney allegedly filed by accused in a Civil
Court was not competent---Criminal Court could not take cognizance of such a complaint in
contravention of Ss.195 & 476, Cr.P.C.---Prosecution conceded to the legal situation and did not
oppose quashment application---Proceedings pending in respect of said complaint in Court of
Magistrate were accordingly quashed.

Abdul Ghafoor v. State 1984 P Cr. L J 381 and Nusrat Hussain and others v. The State 1986 P
Cr. L J 1218 rel.

S. Ashiq Muhammad Khan for Petitioners.

AA.-G. for the State.

Date of hearing: 10th April, 1989.

JUDGMENT

The brief facts of the present petition are that one Muhammad Ibraheems had filed a pre-emption
suit on behalf of Agha Abbas Raza against the present petitioners, as his special power of
attorney. Under the said special power of attorney, the said Muhammad Ibraheem was not
empowered to withdraw the said pre-emption suit but it has been alleged that he did withdraw
the said pre-emption suit by filing a second special power of attorney to that effect. Thereafter
the complainant, Agha Abbas Raza, alleged that the second special power of attorney had been
forged and that it was done by the said Muhammad Ibraheem with the connivance of the present
petitioners.

/ 2. Therefore, the complainant, Agha Abbas Raza, filed a suit under section 12(2) of the C.P.C.
for a declaration to the effect that the withdrawal of said pre-emption suit had been obtained
fraudulently. However, the said suit was dismissed on the technical ground that the said pre-
emption suit did not lie on the basis of being a collateral in view of the case reported as P L D
1986 SC 460.

3. Thereafter the said Agha Abbas Raza lodged a complaint under 420, P.P.C. against the present
petitioners, and during the investigation of the case sections 467/468 and 471, P.P.C. were also
added to the F.I.R. No. 377/85, dated 17-11-1985 at Police Station Ahmadpur East, District
Bahawalpur, and that case is pending in the Court of EA.C./M.I.C., Ahmadpur East.

4. The learned counsel for the petitioners contends for quashment of the proceedings of the said
case on the following grounds: --

That it had been alleged that a forged document/said special power of attorney had been used in
a judicial proceeding before a Civil Court, therefore, the prosecution proceedings under section
195, Cr.P.C. could only be initiated at the complaint of the said Civil Court and not by a private
complaint.

It was further pointed out that the alleged false special power of attorney has not been declared to
be a forged document by the said Civil Court nor the complainant had applied to the said Civil
Court for taking cognizance of the offences alleged.

It was further pointed out that only the said Civil Court could take cognizance of such an offence
referred to in section 195, Cr.P.C. as required under section 476, Cr.P.C.

5. In support of his contentions the learned counsel for the petitioners relied upon Abdul Ghafoor
v. State 1984 P Cr. L J 381, wherein it was held that the condition precedent for launching
prosecution in respect of a forged document used in judicial proceedings was the procedure
prescribed by section 195-1(c) and section 476, Cr.P.C. before a Court of criminal jurisdiction
could be competent to, take cognizance in the matter. The second authority relied upon was
Nusrat Hussain and others v. The State 1986 P Cr. L J 1218. By this judgment the proceedings
pending against the accused were quashed as it was held that the entertainment of the complaint
in respect of a forged document was barred except at the instance of the Court before which the
offence was committed. Therefore, it was held that section 195(i)(c), Cr.P.C. shall be attracted to
such a case.

6. The learned counsel for the State concedes that section 195(i)(c) and section 476, Cr.P.C. are
applicable to the facts and circumstances of the present case and, therefore, does not oppose the
quashment of the proceedings pending) in respect of the present complaint in the Court of
EA.C./M.I.C., Ahmadpur East.

7. In view of the statement of the learned counsel for the State and placing reliance on the
authorities cited by the learned counsel for the petitioner, and under the facts and circumstances
of the present case, the provisions of sections 195 and 476, Cr.P.C. are applicable to the present
case, therefore, it is held that a private complaint in respect of the offence alleged was not
competent under the law and a criminal Court could not take cognizance of such a complaint,
which was in contravention of the provisions of sections 195 and 476, Cr.P.C. referred to above.
Resultantly the proceedings pending against the petitioners, in respect of the F.I.R. No. 377/85,
dated 17-11-1985 at Police Station Ahmadpur East, in the Court of EA.C./M.I.C., Ahmadpur
East are hereby quashed.

N.H.Q./G-276/L Proceedings quashed.

1988 P Cr. L J 1634

[Lahore]

Before Khizar Hayat, J

NIAZ--Petitioner
versus

THE STATE--Respondent

Criminal Miscellaneous No. 3740-B of 1987, decided on 17th January, 1988.

Criminal Procedure Code (V of 1898)--

---S. 497--Penal Code (XLV of 1860), Ss.419, 420, 468 & 471--Bail-Accused allegedly transferred
complainant's land on forged power of attorney-- Original power of attorney purported to have been
executed by complainant in favour of accused not forthcoming--Complainant filed a suit for cancellation
of said power of attorney and same was sub judice--Evidence proposed to be examined against accused
mostly of documentary in nature--Investigation completed and challan ready to be put in Court--No
apprehension existing that accused if released on bail would suborn witnesses--Accused in jail for six
months and charged for committing offences which were not punishable with ten years' imprisonment
or above and not covered under prohibitory clause of S.497, Cr.P.C.--Accused admitted to bail in
circumstances.

Kh. Sultan Ahmad for Petitioner.

Miss Agnes Tabasum for the State.

Ch. Muhammad Bakhsh for the Complainant.

ORDER

Mohy-ud-Din, complainant herein, reported to Police Station Lower Mall, Lahore on 15-8-1987, vide
F.I.R. No. 250/87 that he owned about one hundred Kanals of land in village Qila Dedar Singh Tehsil,
District Gujranwala, which is cultivated by Mushtaq Ali and Saif Ali as his tenants. The said tenants in
conspiracy with their brother Ilyas and his brother-in-law Niaz, petitioner herein, prepared a forged
power of attorney purported to have been executed by the complainant in favour of Niaz Ali and on the
basis of the same, Niaz Ali transferred complainant's land in favour of his own son Abbas Ali and a
relative Muhammad Rafiq. A case was registered on 15-8-1987 under sections 419, 420, 468 and 471,
P.P.C. and investigated.

2. During the investigation the petitioner failed to produce the original power of attorney on the basis of
which he had transferred complainant's land to Abbas Ali and Muhammad Rafiq and instead produced a
photostat copy of the so-called power of attorney. According to police investigation, the petitioner has
been found guilty of committing offences of forgery and cheating. He was arrested in August 1987.
Petitioner's bail plea was declined by the lower Court, hence this application.

3. I have heard learned counsel for the petitioner as well as for the State assisted by learned counsel for
the complainant and also perused the record produced by Muhammad Naseem, Inspector Police, in
Court.

4. It is submitted on behalf of the petitioner that he is in jail for about six months without trial; that the
evidence proposed to be adduced against the petitioner is almost of documentary nature and that the
complainant has filed a suit for cancellation of power of attorney which is sub judice and it is yet to be
determined whether the power of attorney on the basis of which Niaz petitioner had transferred
complainant's land was genuine or a forged one; that there is no apprehension that the petitioner would
suborn the witnesses and that the offences with which the petitioner is charged are not covered by
prohibitory clause of section 497, Cr. P. C . hence he has good case for the grant of bail. Replying,
learned State counsel assisted by learned counsel for the complainant has vehemently opposed the
petition.
5. The original power of attorney purported to have been executed by the complainant in favour of the
petitioner, on the basis of which he had transferred the complainant's land to his relatives is not
forthcoming. It is also admitted that the complainant has filed a suit for the cancellation of the said
power of attorney which is sub judice, and mostly the evidence proposed to be examined against the
petitioner is of documentary nature. The investigation is complete and the challan is ready to be put in
Court soon. In the circumstances there is no apprehension that the petitioner, if released on bail, shall
suborn the witnesses. The petitioner is in jail for about six months. He is charged for committing the
offences which are not punishable with ten years' imprisonment or above and are not covered under
prohibitory clause of section 497, Cr.P.C. Consequently, I would allow this petition and direct that he be
released subject to his furnishing bail bonds, in the sum of rupees one lac with two sureties each in the
like amount to the satisfaction of Assistant Commissioner/ Duty Magistrate, Gujranwala.

M.Y.H./N-113/L Bail granted.

1987 P Cr. L J 447

[Lahore]

Before Khizar Hayat, J

MAZHAR MUHAMMAD--Petitioner

versus

THE STATE--Respondent

Criminal Miscellaneous No.424-B of 1982, decided on 17th April, 1982.

Criminal Procedure Code (V of 1898)--

---S. 497--Penal Code (XLV of 1860), Ss. 419, 420, 467, 468 & 471--Bail, grant of--Forged
power of attorney allegedly registered in favour of accused--Case reported to Police after about
28 months--Real impersonator not yet traced--Investigation to take long time to finalize-Most of
evidence collected or intended to be produced, comprising of documentary evidence--No
apprehension of its being tampered by accused--Opinion of Handwriting Expert still awaited--
Bail granted in circumstances.

Faiz Muhammad Khosa for Petitioner.

Khadim Nadeem Malik for Petitioner (in Cr. M. No. 437-B of 1982).

Ashfaq Ahmad Khan for the State.

ORDER

Mazhar Muhammad son of Nazar Muhammad caste Sheikh resident of Jhang Saddar, district
Jhang and Muhammad Abdullah son of Abdul Rahim caste Kamboh resident of Block No.11,
Khanewal, district Multan, have moved separate petitions for the grant of bail in case F.I.R.
No.50, dated 2-2-1982 under sections 419/420/467, 468/471, P.P.C. registered at Police Station,
Khanewal. Earlier, their petitions were dismissed by the Ilaqa Magistrate as well as by the
Sessions Judge. Hence this petition. I propose to dispose of both these petitions Criminal
Miscellaneous Nos. 424-B of 1982 and 437-B of 1982 by this single order.

2. According to the F.I.R., complainant's father Mubarak Ali who died in Chak No.2741GB on
19-11-1977 had left behind some landed property in village Jhirki, district Jhang besides certain
other villages. The complainant did not visit village Jhirki for a long time being busy with the
management of his landed property in other villages. He visited village Jhirki in the second week
of October, 1979 and found that his landed property measuring 190 Kanals in that village had
been occupied by Muhammad Aslam. Inquiry revealed that Muhammad Aslam had purchased
that land as a bona fide purchaser for value. The complainant approached the revenue officers
and learnt that a power of attorney on behalf complainant's father (late Mubarak Ali) was
registered with Sub-Registrar, Khanewal, on 29th October, 1979, wherein Mazhar Muhammad,
petitioner, was nominated as his general attorney. Late Mubarak Ali was allegedly identified
before the Sub-Registrar by Muhammad Kabir, Advocate.

3. During the investigations, it transpired that on the basis of the aforesaid power of attorney
purported to have been executed by late Mubarak Ali, Mazhar Muhammad, petitioner had sold
out the land in question to one Siraj through Mutation No.431 dated 8-12-1979 for a sum of
Rs.50,000. Siraj further alienated this land in favour of Muhammad Aslam, aforementioned, for a
sum of Rs.80,000 through Mutation No.441, dated 12th July, 1981.

4. The complainant claimed that his father had never executed the aforesaid power of attorney in-
favour of Mazhar Muhammad, petitioner, and that the said document was forged by the
petitioner for his personal illegal gains. As for Muhammad Abdullah, petitioner, is concerned,
according to the prosecution, he is a marginal witness of the aforesaid forged power of attorney.

5. Learned counsel appearing on behalf of Mazhar Muhammad, petitioner, contends that neither
the forged power of attorney was relatable to him nor did he act as general attorney of late
Mubarak Ali to sell out the land to Siraj. According to him, the signatures purported to be that of
Mazhar Muhammad, petitioner, on Mutation No.431 are not his and have rather been forged by
his enemies. He next contends that the petitioner is a graduate and is heading an educational
institute. He also contends that there is a delay of 2 ½ years in lodging the F.I.R. Lastly, he
contends that the petitioner is in jail since 5-2-1982 and the investigation would take long to
finalize and there is no apprehension of tampering with the evidence as most of it comprises the
documentary evidence.

6. Learned counsel for Muhammad Abdullah, petitioner, contends that he has been made victim
of the party faction prevailing in the village. According to him, the petitioner had never signed
the forged power of attorney as a marginal witness. A cursory glance of this document shows
that signature of Muhammad Abdullah, petitioner, have been added at some later stage. He has
produced a certified copy of the said power of attorney wherein signatures of Muhammad
Abdullah do not figure.

7. Learned counsel appearing for the State has strenuously resisted these petitions by saying that
the offences with which the petitioners are charged are punishable with 10 years' R.I. and thus,
the case of the petitioners fall within the prohibitory clause of section 497, Cr.P.C.
8. I have weighed the submissions of learned counsel for the parties and also perused the record.

9. Admittedly, the occurrence was reported to the police after about 28 months of the registration
of the aforesaid forged power of attorney. The Investigating Officer has informed me that he has
not been able to trace out the real person who had impersonated for late Mubarak Ali before the
Sub-Registrar at the time of registration of the said documenE and that it will take some time to
finalize the investigation. Muhammad Kabir, Advocate, who allegedly had identified late
Mubarak Ali before the sub-registrar has since been granted bail by the Sessions Judge. It
appears to me that most of the evidence collected against the petitioners " or intended to be
produced at the trial comprise documentary evidence and there is no apprehension that the same
will be tampered with if the petitioners are released on bail. I also feel that it wilt take long time
to finalize the investigation and the trial as well opinion of the handwriting expert is still awaited,
as to the genuineness or otherwise of the document.

9. As far Muhammad Abdullah, petitioner, is concerned, his case clearly falls under section 497
(2), Cr.P.C. because it needs further inquiry as to whether his signature existed on the aforesaid
document before its registration or not.

10. For the ,foregoing reasons, I accept both the petitions and direct that the petitioners be
released on bail provided they furnish a bond in the sum of Rs.50,000 (Rupees fifty thousand
only) with one surety in the like amount each to the satisfaction of Assistant Commissioner,
Khanewal.

S.A. Bail allowed.

1977 P Cr. L J 546

[Karachi]

Before M. A. Rashid, J
QAIM DIN AND 3 OTHERS-Appellants

Versus

THE STATE AND ANOTHER-Respondents

Criminal Miscellaneous No. 429 of 1976, decided on 7th October 1976.

(a) Criminal Procedure Code (V of 1898)--

--- S. 369 read with S. 561-A-Judgment/order, review of-Order of High Court, if not falling
within definition of judgment-Can be reviewed and limitation contained in S. 369, Cr. P. C.
being applicable only to judgment would not extend to such cases-An earlier order, however,
cannot be recalled or reviewed unless passed without jurisdiction or in violation of mandatory
provision of law or of principles of natural justice-Question whether S. 468, P. P. C. covered by
S. 463, P. P. C. referred to in S. 195, Cr. P. C., not considered during hearing of earlier petition-
Question, held, such as would fall within type of cases, where orders can be reviewed, on ground
of failure to consider a principle of law.-[Review-Judgment].

Putta Venkatrayudu v. The State A I R 1957 Andh. Pra. 943 ref.

Soomar v. The State P L D 1967 Kar. 80; Mohammed Hanif v. The State P L D 1974 Kar. 22;
Gulzar Hassan Shah v. Ghulam Murtaza P L D 1970 S C 335' Mohammad Ehsan v. The State P
L D 1968 Lah. 451 and Chandra Bhai v. Abdul Qaddus Behari P L D 1966 Kar. 122 ref.

(b) Criminal Procedure Code (V of 1898)-

S. 195 read with S. 561-A-Quashment of proceedings-Petitioner appearing before Court by
virtue of forged power of attorney and representing and acting on behalf of its alleged executant-
-A "party to the proceedings", as envisaged by S. 195, Cr. P. C.--Complaint filed by private party
under S. 468/471, P. P. C., in respect of forged power of attorney, held, not competent and
entertained by Court without jurisdiction-Proceedings quashed, in circumstances.

Putta Venkatrayudu v. The State A I R 1957 Andh. Pra, 943 ref.

Muhammad Ali Sheikh for Applicants.

Nooruddin Sarki for the State:

G. M. Durrani for Respondent No. 2.

Date of hearings 23rd September, 1976.

JUDGMENT

Respondent Ramzan filed a direct application against the present applicants before the Civil
Judge and Ist Class Magistrate, Dadu under sections 466, 467, 468/34/109/129, P. P. C. The
main contention in the complaint was that the applicant Nizamuddin had, on the authority of a
forged power of attorney executed by one Asif Ali, managed to get transfer of certain
agricultural land in his own favour. The other accused persons are alleged to have abetted the
crime of preparing the forged power of attorney. After holding the preliminary inquiry, the
learned Civil Judge and Magistrate 1st Class, vide his order dated the 5th February, 1976, came
to the conclusion that prima facie an offence punishable under section 468 read with section 34,
P. P. C. appeared to have been committed. He, therefore, directed the process to be issued against
the present applicants.
The applicants by an application under section 561-A, Cr. P. C. challenged the issue of the
process in this Court on 18-3-1976, claiming that the provisions of section 195, Cr. P. C. have
been violated as only a Court and not a private party could file such complaint. That application
was heard and dismissed by me in limine by my order dated the 7th April, 1976. One of the
grounds for dismissal of the application was that section 468, P. P. C. was not listed among the
sections given in clause (b) or (c) of section 195, Cr. P. C.

The second application was moved under section 561-A, Cr. P. C. on 21st April, 1976 claiming
that though section 468, P. P. C. is not mentioned in section 195, Cr. P. C. but this section is
covered by the phrase "offences referred to in section 463, P. P. C," On this ground a prayer is
made that in the absence of a complaint from the Court of competent jurisdiction, the
proceedings before the learned Civil Judge & 1st Class Magistrate shall be held as beyond
jurisdiction and quashed as such.

The first objection taken by the learned counsel for the respondent was that the second
application amounts to a review of earlier order of this Court, and therefore it is barred by section
369 of the Cr. P. C. He relies upon a judgment from the Indian Jurisdiction Putta Venkatrayudu
v. The State (A I R 1957 Andh. Pra. 943). The view taken in this case is that section 561-A
confers no new powers on the High Court and the Court cannot in purported exercise of inherent
powers surmount the limitations imposed by section 369; and that in this view an application
under section 561-A, Cr. P. C. for re-hearing an appeal, is not competent. Section 369, Cr. P. C.
clearly states that when a Court has signed its judgment, it shall not alter or review the same
except to correct a clerical error.

The question would be if the order dated 7th April, 1976 amounts to a judgment or not. By such
order this Court declined to interfere in the proceedings before the .F. C. M.. Dadu. Such an
order cannot amount to a judgment. In Soomar v. The State (P L D 1967 Kar. 80) the view taken
is that the orders and decisions of the High Court do not fall within the definition of a judgment.
This was in confirmation of an earlier view taken in Mohammad Hanif v. The State (P L D 1974
Kar. 22), where an order of enhancement of sentence was held not to fall within the definition of
a judgment.

The holding in these two cases is that an order of the High Court, when it does not fall within the
definition of judgment, can be reviewed, and the limitation contained in section 369, being
applicable only to a judgment would not extend to such cases. This view is duly supported by
Supreme Court authority contained in Gulzar Hassan Shah v. Ghulam Murtaza (P L D 1970 S C
335).
However, the principle laid down in the above two cases as well as the Supreme Court authority
is that an earlier order can be recalled or reviewed only were such order is passed without
jurisdiction or in violation of mandatory provision of law or of the principles of natural justice. It
is clearly stated in Soomar's case cited above that Mohd. Hanif's case was no authority fur the
proposition that there is jurisdiction to review an order or decision of the High Court in criminal
cases, which are not judgments within the meaning of section 369, Cf. P. C., but only for the
more limited proposition that in exceptional cases there is such power.

Here the question whether section 468, P. P. C. was covered by section 463, P. P. C. referred to
in section 195, Cr. P. C. is involved and was not considered at the time of earlier hearing. Failure
to consider a principle of law has always been held to be improper exercise of jurisdiction. As
such it would fall within the type of cases where the orders can be reviewed.

In Mohammad Ehsan v. The State (P L D 1968 Lah. 451) the question whether an offence under
section 468, P. P. C. was covered by section 195, Cr. P. C. was considered and it was held that
the expression `any offence described in section 463', as occurring in section 195 (1) (c), Cr. P.
C. gives a clear indication that all kinds of forgeries are covered by it. In Chandra Bhai v. Abdul
Qaddus Behari (P L D 1966 Kar. 122) similar view was expressed.

Learned counsel for the respondents readily conceded to the power of this Court to review its
earlier order in this case and to the proposition that an allegation of an offence under section 468
with respect to documents produced or relied upon in a ju6icial proceedings can only be
entertained on the complaint of a Court. But he contended that Nizamuddin, having acted as an
Attorney does not fall within the definition of a 'party to the proceedings' as envisaged by section
195, Cr. P. C. The contention has no force. Nizamuddin, no doubt was acting as an Attorney but
he appeared before the Court only by virtue of being such an attorney. He was representing Asif
Ali and in proceedings before the Court, where he appeared as his Attorney, he had acted on his
behalf. He therefore, very much falls within the definition of a party to the proceedings. In State
v. Sardar Shah Bukhari (P L D 1975 Lah. 1407) an Attorney before the Supreme Court was held
to be a party and, therefore, it was declared that a complaint by that Court was necessary to give
jurisdiction to the Court to entertain a complaint for offences under section 468/471, P. P. C.

In view of the fact that the complaint was not filed by the Court seized of the matter in which the
alleged forged power of attorney was filed, learned civil Judge and 1st Class Magistrate, Dadu,
having entertained the complaint of a private party, acted beyond jurisdiction. The proceedings
are, therefore, quashed.
Proceedings quashed.