ORDER SHEET

THE HIGH COURT OF SINDH CIRCUIT COURT AT LARKANA

Criminal Miscellaneous No.S-118 of 2018

Date

               Order with signature of Judge

 

                                                             Before: Mr.Justice Irshad Ali Shah

1.     For orders on office objection "A".

2.     For hearing of main case.

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06.12.2018

Mr. Ghulam Murtaza Jatoi, advocate for the applicant.

Raja Imtiaz Ali Solangi, A.P.G.

Proposed accused Sabir Hussain present in person.

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                        The applicant by way of instant Crl.Misc.Application has impugned an order dated 16.04.2018, whereby the learned 6th Additional Sessions Judge/Ex-Officio Justice of Peace, Larkana, dismissed the application of applicant under section 22-A & B Cr.PC, for issuance of direction against SHO P.S Areeja, to record his FIR was dismissed.

                        The facts in brief necessary for disposal of instant application as per narration made by the applicant in his application under section 22-A & B Cr.PC are as under;

“That, the father of applicant owns and possess the land bearing No.45 and 45(A) and others situated in Deh Loungai, Taluka Larkana by virtue of inheritance as co-owner and accused every Faqeer Muhammad, 2. Aurangzaib, 3. Bashir, 4. Sabir, 5. Ayaz, r/o village Loungai, Taluka and District Larkana in common intention with each other by way of fraud and forgery changed the revenue record of various survey numbers and have concealed the property in order to prevent distribution amongst the creditors and fraudulently made execution of deed of transfer the same on false statements of consideration and complainant came to know about the above said offence of accused after production of relevant entry No.317 produced by Mukhtiarkar Larkana in Cr.Misc.Application No.  of 2017 Re.Zubair Ahmed V. Ayaz and others before learned 2nd Civil Judge and Judicial Magistrate Larkana, so also application submitted by accused Faqeer Mohammad before Assistant Commissioner Larkana”.

                        It is contended by learned counsel for the applicant that the applicant has been deprived of his legitimate right of inheritance in property by the proposed accused by committing fraud and forgery in revenue record; as such they are liable to be prosecuted in accordance with law. By contending so, he sought for reversal of the impugned order with direction to SHO P.S Areeja to record FIR of the incident at the instance of applicant. In support of his contention, he relied upon case of Salam Khalil Vs. The State (2008 PCr.LJ-469).

                        Learned A.P.G who is assisted by some of the proposed accused has sought for dismissal of the instant Crl.Misc.Applicatoin by contending that the applicant intends to prove his right of inheritance in property by involving the proposed accused in a false case.

                        I have considered the above arguments and perused the record.

                        The dispute between the parties apparently is over the inheritance of the property, such dispute could only be resolved by Civil Court having jurisdiction. The civil remedy could not be permitted to be converted into criminal by making allegation of fraud and forgery in revenue record, which is yet to be proved. In these circumstances, the learned 6th Additional Sessions Judge/Ex-Officio Justice of Peace, Larkana, was right to record the dismissal of the application of the applicant for issuance of direction for recording of his FIR, with the very cogent observation which reads as under;

“From the perusal of record, it appears that the dispute between the applicant and proposed accused is of civil nature and such civil suits as well as miscellaneous applicatoins are still pending between the parties, as such civil dispute cannot be resolved in criminal proceedings. Moreover respondent No.1/SHO, P.S Areeja also reported that there is dispute over the landed property between the applicant and proposed accused party. Furthermore, the power of the Justice of Peace/Ex-officio are quasi judicial which may not be exercised in mechanical manner, therefore, the instant application is hereby disposed of with observation that the parties are at liberty to avail the proper remedy before the competent forum”. 

                        The case law which is relied upon by learned counsel for the applicant is on distinguishable facts and circumstances. In this case the applicant sought for quashment of order under section 173 Cr.PC which was passed by Magistrate having jurisdiction on police report for cancellation of FIR under “C” class. In the instant matter, no issue of quashment of order u/s. 173 Cr.PC of any Magistrate is involved to be examined. 

                        In view of facts and reasons discussed above, it could be concluded safely that the impugned order is not calling for any interference by this Court by way of instant Crl.Misc.Applicatoin, it is dismissed accordingly.

 

                                                                                                            J U D G E

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