2013 Y L R 732

[Peshawar]

Before Nisar Hussain Khan and Rooh-ul-Amin Khan, JJ

BIBI HIJRA---Petitioner

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 8 others--

-Respondents

Writ Petition No.218-B of 2012, decided on 22nd November, 2012.

Penal Code (XLV of 1860)---

----Ss. 419/420/468/471---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of

Pakistan, Art.199---Constitutional petition---Cheating, forgery, using as genuine a forged
document---Keeping criminal case pending till disposal of civil suit---Scope---Petitioner had
impugned the letter, whereby her case was ordered to be kept pending, till disposal of her civil
suit---After registration of the case authorities were legally obliged to proceed with the
investigation; and submit final report before the competent court of law against the accused, but
instead thereof, authorities issued the impugned letter to Assistant Director Crimes to keep the
F.I.R. pending till decision of the civil court filed by the petitioner seeking declaration as well as
perpetual and mandatory injunction---Criminal and civil proceedings, with regard to the same
event had different connotation---By way of criminal proceedings, a wrong-doer was punished
for the crime; through civil proceedings, a civil right of an aggrieved person usurped by the
wrong doer, was retrieved---No legal bar existed on initiation of the two parallel proceedings,
against the same person---As a rule of caution and prudence, if fate of criminal proceedings was
dependant on the result of the civil proceedings, the criminal proceedings were stayed, till final
adjudication by the civil court---Discretion rested with the court to decide, in view of the facts of
each case, as to whether both the proceedings should continue or otherwise---No hard and fast
rule existed for stay of criminal proceedings, till decision of the civil suit---Both could proceed
independently, such was a matter to be decided by the courts and not by the Investigating
Agency---Authorities had no power to stop the investigation and were legally obliged to proceed
with the investigation of the case and submit their final report before the competent court of law-
--By the impugned act of stoppage of investigation, on the part of respondent authorities, the
prospective damage had been allowed to occur; and they had failed to perform their legal
obligation---Impugned order was declared as illegal, unlawful and having been passed without
lawful authority, causing grave miscarriage of justice---Authorities were directed to proceed
with the investigation of the case and submit their final report before the competent court of law
against accused, within shortest possible time.
 Bughdad Khan and Sakhi Janan for Petitioner.

Ahmed Farooq Khattak A.A.-G. and Shahid Qayyum Khattak for Respondents.

Date of hearing: 22nd November, 2012.

JUDGMENT

NISAR HUSSAIN KHAN, J.---Impugned herein is Letter No.3746/ACE, dated 5-4-

2012, issued by respondent No.2 (Director Anti-Corruption Khyber Pakhtunkhwa, Peshawar),
whereby case F.I.R. No.8, dated 16-12-2011, registered under sections 419/420/468/471, P.P.C.
read with 5(2), P.C., Act, Police Station, Anti-Corruption Establishment, Karak, has been
ordered to be kept pending, till disposal of civil suit of petitioner.

2. We have heard the arguments of the learned counsel for the parties and have gone
through the record with their valuable assistance.

3. The record divulges that Mr. Sher Abbas was serving in Pakistan Army and was martyred
during "Swat Operation", due to which his legal heirs were offered "Martyrdom
Package/Shaheed Pakage". The deceased had provided the names of his issues in his service
record of Pakistan Army, wherein three sons including one Jasim Abbas and three daughters,
have been shown, as his legal heirs. The names of his children along with their dates of birth are
also mentioned in the said record, according to which, Jasim Abbas is shown as his eldest son,
whereas, rest of his five children are younger than him. At the time of disbursement of benefit of
"Shaheed Pakage", dispute arose that Jasim Abbas is not the son of the martyred Sher Abbas,
rather his name was mentioned by the deceased in his service record, just out of love and
affection, being his nephew, when he himself had no issue. But the same was resisted and on
petitioner's complaint, F.I.R No.8, mentioned-above, was registered at Police Station ACE,
Karak. It is elaborately mentioned in the F.I.R that on written application of the petitioner, an
inquiry was conducted and one Qabil Rehman, brother-in-law of the petitioner, collusively tried
to show his own son Jasim Abbas, as one of the legal heirs of his martyred brother, to get the
benefit of "Shaheed Pakage" and other benefits of deceased's service as well as the ancestral
property, in connivance with Niamatullah Secretary Union Council Metha Khel, Muhammad
Zubair S.S. GHSS Jandri, Mansoor Ahmad Ex.DDO (Education Karak), Samar Badshah Head
Teacher Primary School Kanda Baji Khel Karak, Muhammad Ali Superintendent and Mst.
Nabila Nasir (Ex-Principal Fauji Foundation School Karak, with mala fide and ulterior motive
and thereby procured Birth Certificate, School Certificate of Jasim Abbas, containing the name
of his father as Sher Abbas, instead of Qabil Rehman and consequently Jasim Abbas was also
included as legal heir in deceased's inheritance Mutation No.2087 dated 24-1-2011, which was
later on, cancelled on 25-4-2011, by review order of the Revenue Officer. It was concluded
by the Circle Officer of Police Station ACE, Karak that all the accused have committed the
crime mentioned in the F.I.R.

4. After registration of the case, respondents were legally obliged to proceed with the
investigation and submit final report before the competent Court of law against the accused. But
instead thereof, respondent No.2, issued the impugned letter to Assistant Director Crimes
respondent No.4, to keep the F.I.R., pending till decision of the civil suit, which has been filed by
the petitioner seeking declaration as well as perpetual and mandatory injunction against all the
concerned persons and departments for correction of their record with regard to paternity of said
Jasim Abbas, where he has been shown the son of martyred Sher Abbas, instead of Qabil
Rehman.

5. Admittedly, criminal and civil proceedings, with regard to the same event have different
connotation. By way of criminal proceedings, a wrongdoer is got punished for the crime.
Through civil proceedings a civil right of an aggrieved person usurped by the wrongdoer, is
retrieved. On this premises, it is always assumed that there is no legal bar on initiation of the two
parallel proceedings, against the same person. However, as a rule of caution and prudence, if fate
of criminal proceedings is dependent on the result of the civil proceedings, the criminal
proceedings are stayed, till final adjudication of the Civil Court. However, discretion rests with
the Court to decide, in view of the facts of each case, as to whether both the proceedings should
continue or otherwise. There is no hard and fast rule for stay of criminal proceedings, till
decision of the civil suit. Both can proceed independently. However, this is a matter to be
decided by the Courts, not by the Investigating Agency. In the instant case, the respondents have
stopped the investigation on the F.I.R, who have no such authority to do so. Respondents were
legally obliged to proceed with the investigation of the case and submit their final report before
the competent Court of law. It was for the Court to decide as to whether the criminal proceedings
should concurrently proceed with the civil suit or otherwise. The respondents have got no lawful
authority to stop the proceedings. If the analogy advanced by the respondents, is approved, there
is every likelihood of destruction, vanishing or disappearance of material and important
evidence, which can be instantly collected during investigation. By the impugned act of stoppage
of investigation, on the part of the respondents, the prospective damage has been allowed to
occur and thereby they have failed to perform their legal obligation.

6. For what has been discussed above, by allowing instant writ petition, the impugned order
of the respondent issued vide impugned letter is declared as illegal, unlawful and having been
passed without lawful authority, causing grave miscarriage of justice. Consequently, the
respondents are directed to proceed with the investigation of the case and submit their final
report before the competent court of law against the accused, within shortest possible time, but
not later than a fortnight of this order.

HBT/425/P Order accordingly.