Jamal Khan V. Secretary Home Department and 6 others,

2015 M L D 972

[Balochistan]

Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ

JAMAL KHAN--- Petitioner

versus

SECRETARY HOME DEPARTMENT and 6 others ---Respondents

Constitutional Petition No.631 of 2014, decided on 4th February, 2015.

Criminal Procedure Code (V of 1898) ---

----S.22- A---Penal Code (XLV of 1860), Ss.419, 420, 467, 468 & 471--- Arbitration Act (X of 1940), Ss. 30 & 33 ---Constitution of Pakistan, Art. 199---Constitutional petition --- Maintainability ---Cheating and forgery ---Justice of peace--- FIR, registration of ---Scope--- Contention of the petitioner was that respondents by preparing a forged arbitration agreement had committed an offence under Ss. 419, 420, 467, 468 & 471, P.P.C.---Application for registration of FIR was d ismissed by the Justice of Peace/Sessions Judge ---Validity ---Civil dispute between the parties with regard to partition of Shamilat property was on record --- Petitioner had turned a civil dispute into criminal proceedings just to continue his possession over a piece of land ---If a property dispute in arbitration agreement or award on any ground had been raised then a specific remedy under Ss. 30 & 33 of Arbitration Act, 1940 was available to the petitioner ---Dispute with regard to property had been referred to the arbitrators ---None of the persons except petitioner after 13 years of execution, initiated proceedings for the registration of FIR against respondents ---Averments made by the petitioner had not been supported by other executant of such arbitration a greement/award ---Petitioner had an alternate and efficacious remedy to seek grievance before the competent court of law ---Constitutional petition was not maintainable which was dismissed, in circumstances.

PLD 2007 SC 539 and 2003 YLR 1941 ref.

Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493 rel.

Manzoor Ahmed Rehmani for Petitioner.

Shai Haq Baloch, Assistant Advocate General for Respondents.

Date of hearing: 8th December, 2014.

JUDGMENT

MUHAMMAD EJAZ SWATI, J. ---Through the instant Constitutional Petition, the petitioner has challenged the validity of the order dated 26th February 2014 (hereinafter referred as "the impugned order") passed by the learned Justice of the Peace / Sessions Judge, Zhob (hereinafter referred as "the trial Court") and sought the following relief: --

"Accordingly respectfully prayed that impugned order dated 26- 2-2014 passed by Sessions Judge Zhob upon application under section 22- A, Cr.P.C. filed by applicant may be declared as illegal, unlawful, without lawful authority and of no legal effect, as such, the same may be quashed and the respondent No.1 may be directed to register FIR and investigate the case in accordance with law in the interest of justice."

2. The facts of the case are that the petitioner filed an application under section 22- A of the Cr.P.C. before the Justice of the Peace/ Sessions Judge, Zhob, for registration of FIR against the respondents Nos.3 to 6 with the averment that he had a land dispute with the private respondents and they with connivance of each other and with mala fide intention just to defraud the petitioner, prepared a forged and fake arbitration agreement dated 21st February, 2000, whereon, his forged thumb impressions have been imposed. It is further averred that the respondent No.6 Aqal Khan and others, in case titled Aqal Khan v. Mukhhamad and others, had produced the forged arbitration agreement, which came into the knowledge of the petitioner on 20th November 2013.

3. The learned counsel for the pe titioner contended that the private respondents by preparing a forged arbitration agreement dated 2nd February, 2000, had committed an offence under sections 419, 420, 467, 468, 471, P.P.C., and the learned trial Court was required to have directed the off icial respondents to register a case against them, but instead of passing such order, the application of the petitioner was dismissed, due to which he had been deprived from his guaranteed right to protect his property; that the offence committed by the pr ivate respondents is cognizable, and registration of FIR in such offence is mandatory, as provided under section 154 of the Cr.P.C; that the respondent Aqal Khan had also produced the said forged arbitration agreement in Civil Revision No.502 of 2010, and thus, committed forgery for the purpose of cheating, and they are also liable to be proceeded under the provisions of sections 420, 467, 468, P.P.C.; that the inquiry conducted by the Tehsildar, prior to registration of the FIR, is also illegal and contrar y to provisions of section 154, Cr.P.C. The learned counsel for the petitioner relied upon the cases reported in PLD 2007 SC 539 and 2003 YLR 1941.

4. The learned AAG, contended that the trial Court, after considering the arbitration agreement, has passed a proper order in respect of the application under section 22- A, Cr.P.C. filed by the petitioner, and in this respect, no illegality or irregularity has been committed; that the arbitration award is of 2nd February 2000, and despite having knowledge, the petitioner filed the application for registration of FIR in the year 2013, which lacks ingredients for lodging the FIR, therefore, the impugned order is based on proper appreciation of law, as such, the instant Constitutional Petition is not maintainable under the law and liable to be dismissed.

5. We have heard the learned counsel for the parties and have gone through the record of the case. In pursuance of application under section 22- A, Cr.P.C., the trial Court, directed inquiry through Tehsildar Zhob, whereby, a report dated 18th February, 2014 had been submitted, which states as under: --

6. The perusal of the aforesaid report indicates that a civil dispute between the parties in respect of partition of Shamilat property is in surface and according to report, the petitioner just to continue his possession over a piece of land, had turned a civil dispute into a criminal proceedings. The petitioner had filed application under section 22- A, Cr.P.C., mainly on the ground that the arbitration agreement da ted 2nd February, 2000, is forged, as he had not imposed his thumb impression over the same. It is pertinent to mention here that, if a property dispute in arbitration agreement or award on any ground whatsoever nature has been raised, then, a specific remedy under sections 30 and 33 of the Arbitration Act is available to the petitioner. The arbitration agreement / award indicates that a dispute in respect of property situated at Tora Shah, had been referred to the arbitrators, namely, Haji Syed Shah, Safar Khan, Sehbaz Khan, whereon, several alleged patedarans acknowledged the same and put their thumb impressions thereon. None of the above persons except the petitioner after 13 years of its execution initiated proceedings for registration of the FIR against the private respondents. The averments made by the petitioner in this respect had not been supported by the other executants, as such, the dispute appears to be a civil nature, therefore, if the petitioner after getting knowledge had any grievance or dispute pursuant to that agreement, he had an alternate and efficacious remedy to seek grievance before the competent Court of law, therefore, the present writ petition is not maintainable, as no case for invoking the Constitutional jurisdiction of this Court is made out. In the case of Mst. Kaniz Fatima v. Muhammad Salim 2001 SCMR 1493, the Hon'ble Supreme Court of Pakistan held as under: --

"By now it is well- settled that "where a particular statute provides a self -contained machinery for the determination of questions arising under the Act as and where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statuary Tribunal s. Where, therefore, a petitioner without exhausting his remedy provided by the statute under which he complained had filed a writ petition, it was held that the application in the circumstances would not lie".

Thus, in view of the above, the instant Constitutional Petition No.631 of 2014, is hereby dismissed. The parties are left to bear their own costs.

AG/22/Bal Petition dismissed.