-Civil and criminal proceedings--FIR was quashed registered u/S. 420/468/471 of, PPC and directed to take the forgery for dealing u/S. 476 CrPC as matters regulated u/S. 195 of, Cr.P.C.--

 PLJ 2022 Cr.C. 201.

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

----Ss. 435/439--Criminal Procedure Code, (V of 1898), Ss. 195/249-A/476--Pakistan Penal Code, (XLV of 1860), S. 420/468/471--Civil and criminal proceedings--FIR was quashed registered u/S. 420/468/471 of, PPC and directed to take the forgery for dealing u/S. 476 CrPC as matters regulated u/S. 195 of, Cr.P.C.--An application u/S. 249-A of CrPC was rejected by the trial Court--FIR strikes the very basis of forged documents i.e. manual identity card on the basis of which subsequent forged documents were prepared--Documents of first FIR were used in civil suit which suit was decreed but decree was set aside later on in pursuance of application filed u/S. 12(2) CPC--2^ND FIR was registered on entirely different facts and premises and even nature of documents is different--Civil and criminal proceedings are also not identical in the case--After a criminal trial, a civil action on the same cause of action is not barred--Civil and criminal proceedings go side by side due to their ultimate outcome and difference in standard of proof--Even after civil proceedings, there is no bar for initiation of criminal proceedings--Evidence recorded in one proceedings cannot be read in other proceedings except in some cases where any question in criminal proceedings wholly and entirely depends upon the determination by civil Court--Order passed by the trial Court on application filed u/S. 249-A of CrPC is well reasoned and based on established principles of law.

                                 [Pp. 203, 205, 208 & 210] A, B, C, D, E, F, G, H, I

PLD 1992 Lah. 178; 2008 SCMR 839; 2006 SCMR 1192;
1993 SCMR 2177; 2003 SCMR 1691; 2018 SCMR 733 ref.

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

----S. 195--Pakistan Penal Code, (XLV of 1860), Ss. 420/468/471--Civil and criminal proceedings go side by side due to their ultimate outcome and difference in standard of proof--Even after civil proceedings, there is no bar for initiation of criminal proceedings.                                                                     

                                                                                             [P. 210] G

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

----S. 195--Pakistan Penal Code, (XLV of 1860), S. 420/468/471--Evidence recorded in one proceedings cannot be read in other proceedings except in some cases where any question in criminal proceedings wholly and entirely depends upon the determination by civil Court.                             [P. 210] H

Mr. Abdul Ghafoor Sheikh, Advocate for Petitioner.

Malik Khalid Shafiq, Assistant Attorney General for Respondents.

M/s. Mushtaq Ahmad Mohal, Muhammad Ijaz Sabzwari and Sardar Abdul Jabbar Nabi, Advocates for Complainant.

Date of hearing: 28.7.2021.

 PLJ 2022 Cr.C. 201
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
TARIQ IRSHAD--Petitioner
versus
SPECIAL JUDGE, etc.--Respondents
Crl. Rev. No. 42994 of 2021, decided on 28.7.2021.

Order

Proponents of both the parties presented their respective contentions vociferously that has spiced an old war for acquisition of right to property of one Parveen Mustafa (late) for which they have been fighting for and are in que for the last more than 18 years without success. They tried every ordeal through civil and criminal warfare to win the contest; one of the episodes in the present form has been brought before this Court that FIR No. 07/19 dated 15.02.2019 u/Ss. 420, 468, 471 of PPC, 6 of Passport Act, 1974, 5(2) of Prevention of Corruption Act, 1947 P/S FIA ACC, Lahore is replica of earlier FIR No. 63/07 dated 21.01.2007 u/S. 420, 468, 471 of PPC, P/S Islam Pura, Lahore, which was quashed by this Court and directed to take the forgery for dealing u/S. 476 Cr.P.C. as matters regulated u/S. 195 Cr. P.C restrict cognizance of Court in any other form except upon a complaint sent by respective Court where forgery is committed. Learned counsel for the petitioner contends that present FIR is an attempt in duplication to repeat the sufferings that amounts to double jeopardy and his client cannot be vexed twice; further contends that 2nd FIR on same facts is barred under the law particularly when earlier matter is still pending before the respective Court in the form of proceedings u/S. 476 Cr.P.C. Further contends that civil proceedings are also pending between the parties since long; both civil and criminal proceedings cannot go side by side and proffered arguments that simultaneous prosecution of civil and criminal proceedings is against the law; therefore, requested to stay criminal proceedings till the decision of civil litigation declaring that criminal proceedings are dependent upon the outcome of civil litigation. He maintains that an application u/S. 249 Cr. P.C was moved before the trial Court which was rejected; hence, this Criminal Revision.

2. Learned Counsels for the respondent and Learned Assistant Attorney General submit that there is no bar for simultaneous running of civil and criminal proceedings because outcome in both the proceedings is different and both do not depend on each other; as per principles of evidence, every case is decided on its own evidence. Further maintain that standard of proof in both types of litigation is different and the difference between both the FIRs and difference of allegations in civil and criminal proceedings is apparent in this case.

3. Contentions of the parties heard; Record perused;

4. To understand the dogma of litigation between the parties, shorn of unnecessary delay, suffice it to say that petitioner and his father claimed themselves as legal heirs of Parveen Mustafa on the ground that father of the petitioner had contracted marriage with said lady. On the other hand, respondent being related to Parveen Mustafa by family pedigree refuted such marriage bond and claimed that Parveen Mustafa died as a spinster. It would be appropriate if I lay hands over the delicate difference between earlier criminal proceedings and the present, it would somewhat help to clear the picture.

5. In earlier FIR allegations were that petitioner and his father Irshad Hussain prepared and used following documents:

•        Copy of Death Register of Union Council 133 Township, Lahore on the basis of false affidavit.

•        Death certificate of Parveen Mustafa allegedly issued from Sughran Siddique Hospital by Doctor Shahid Mehmood Nasir, a fictitious person.

•        Certificate issued by Post Office Gulberg III Lahore, showing in Column No. 4, Irshad Hussain as husband of Parveen Mustafa.

•        Certificate issued by Regional Passport office whose contents were forged by said Irshad Hussain.

•        Entry of Identity Card of Parveen Mustafa in forged documents.

•        Death intimation (Parchi) issued by Gulberg Welfare Association 20/G Gulberg III, Lahore.

On the basis of such documents, they filed suit for inheritance which was decreed in their favour in year 2003 but the decree was set aside in year 2007 in pursuance of application filed by the respondent u/S. 12(2) of CPC. Observation of trial Court resulted in lodging of above FIR No. 63/07 which was lodged by the local police.

6. The present FIR Bearing No. 07/2019 was lodged on following allegations against the petitioner;

•        Tariq Irshad through forgery got Manual Identity Card of Parveen Mustafa with changed particulars.

•        On the basis of such I.D. card, got issued Passport Certificate, Driving license, death certificates from different Departments.

Above offences being independent in nature falling within the investigative domain of FIA, were attended and after proper inquiry and receiving reports from the respective departments, that the said documents are forged, FIA lodged the present FIR. The difference between the two is apparent that 2nd FIR strikes the very basis of forged document i.e. Manual Identity card of Parveen Mustafa, on the basis of which subsequent forged documents were prepared which were not the subject matter of any proceedings. Documents of first FIR were used in a Civil Suit which suit was decreed but decree was set aside later on in pursuance of application filed u/S. 12(2) of CPC. Though later in a civil revision, matter was remanded back to civil Court for fresh decision which is still pending.

7. Now coming to the next question of difference between civil and criminal proceedings, it is observed that criminal and civil proceedings pending between the parties are not identical to each other because in civil Court question of genuineness of such documents is not pending in any suit; therefore, the question viz. stay of criminal proceedings does not arise. The question of inheritance of Parveen Mustafa is pending before the civil Court between two rival claimants which is being proved through certain documents as proof, if the proof fails, party will lose the inheritance and would be deprived of the property of Late Parveen Mustafa and nothing more.

8. From above discussion, it is clear that 2nd FIR is based on entirely different facts and premises and even nature of documents is different; therefore, it cannot be termed as replica or verbatim of earlier FIR; it is proceedable under the law. Petitioner has also acquiesced registration of such FIR by conduct because he has not challenged it for quashing before this Court; as he earlier did in case of first FIR. The above discussion makes it clear that civil and criminal proceedings are also not identical in this case, yet their simultaneous prosecution or in alternative or one after another can be ascertained in the light of principles of law on the subject enunciated and formulated by the Honourable Courts.

9. Learned counsel for the petitioner while placing reliance on following judgments submitted that simultaneous proceedings would result in conflicting judgments which would affect both the proceedings. Further contends that it is trite law that if controversy in FIR and civil suit rests upon the determination of title or the genuineness of document, criminal proceedings could be stayed till the disposal of civil suit. In support of his contentions, the learned counsel referred the case “Rana Saeed Ullah VS Inspector General of Police” (2013 YLR 2513); “Shah Fahad and others VS The State” (2014 YLR 2241) and “Muhammad Anwar Khan Vs Ghulam Farid” (2014 YLR 2244).

But, I am afraid the contentions raised by learned counsel are of frail nature and have already been responded in preceding paragraphs that genuineness of documents is not the subject matter in any civil suit pending between the parties.

10. Learned counsels for the respondent placed reliance on “Muhammad Shafi vs. Deputy Superintendent of Police etc.” (PLD 1992 Lahore 178) and submitted that provisions of S. 195(1)(c), Cr. P.C, as regards offences described in S.463, PPC or offences punishable under S. 475, PPC or S. 476, PPC, apply to a document which is produced or given in evidence in a suit or in any other proceedings in a Court but not those documents which had been forged before the institution of the suit or proceedings.

11. The principle of simultaneous running of both the proceedings has been expounded by the Honourable Supreme Court in the following cases:

“Seema Fareed and others versus The State and another” (2008 SCMR 839)

It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability. While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction.

“Haji Sardar Khalid Saleem versus Muhammad Ashraf and others” (2006 SCMR 1192)

It is also settled law that criminal proceedings are not barred in presence of civil proceedings and that civil and criminal proceedings can be proceeded simultaneously. Reference can be made to the following cases:

          Talab Hussain v. Anar Gul Khan and 4 others 1993 SCMR 2177 and Deputy Inspector-General of Police v. Anees-ur-Rehman Khan PLD 1985 SC 134.

“Rafique Bibi versus Muhammad Sharif and others” (2006 SCMR 512)

So far as the second ground prevailing upon the High Court with regard to converting a civil dispute into a criminal liability is concerned, in this behalf it is to be noted that there is no bar to initiate both the proceedings i.e. civil and criminal simultaneously. Readily reference may be made to M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691

“M. Aslam Zaheer versus Ch. Shah Muhammad and another” (2003 SCMR 1691)

So far as criminal liability is concerned, it is always treated distinct and different from the civil liability between the parties. However, the complainant, who has initiated the criminal action, is required to prove the accusation. against the respondents-accused by producing evidence, which of course can be recorded at stage of the trial by the Court, therefore, High Court had no jurisdiction to make premature opinion that whatsoever evidence will be produced it will not improve the case of the appellant.

On the touchstone of above principles, Hon’ble Supreme Court also ordained that disciplinary and criminal proceedings can also go side by side and there is no bar for their simultaneous prosecution; for reference, following judgments are cited;

“Talib Hussain versus Anar Gul Khan and 4 others” (1993 SCMR 2177)

This Court has already held that criminal proceedings and departmental action can go on side by side and may even end in varying results. See Deputy Inspector-General of Police v. Anis-ur-Rehman Khan PLD 1985 SC 134. The reason for this is very simple. In departmental proceedings the desirability of a civil servant to continue in service is under examination whereas the object of the criminal proceedings is to determine and enforce the criminal liability of an accused. The nature of evidence and the standards of proof are different in the two proceedings.

“State through Prosecutor-General, Punjab versus Jahangir Akhtar and others” (2018 SCMR 733)

Disciplinary action taken by a department and criminal prosecution were quite distinct from each other and could proceed simultaneously or one after the other and such separate actions did not attract the principle of double jeopardy--Disciplinary proceedings were meant solely for maintaining and ensuring purity of service whereas criminal prosecution was meant to punish a person for the offence committed by him.

As a principle even after a criminal trial, a civil action on the same cause of action is not barred; neither principle of resjudicata is applied nor question of “autrefois acquit, autrefois convict” (“previously acquitted” and “previously convicted”), arises. To understand this concept, one can refer the famous case of renowned American footballer, commonly known as O. J. Simpson murder case; he was charged for the murder of his wife Nicole Brown Simpson and a man, Ron Goldman; a short description of history of said case would help to understand the difference of civil and criminal proceedings on same subject matter which is given below;

Criminal trial for murder

On June 12, 1994, Nicole Brown Simpson and Ron Goldman were found stabbed to death outside Nicole's condo in the Brentwood area of Los Angeles. Simpson was a person of interest in their murders. Simpson did not turn himself in, and on June 17 he became the object of a low-speed pursuit by police while riding as a passenger in the white 1993 Ford Bronco SUV owned and driven by his longtime friend Al Cowlings. TV stations interrupted coverage of the 1994 NBA Finals to broadcast the incident live. With an estimated audience of 95 million people, the event was described as "the most famous ride on American shores since Paul Revere's".

The pursuit, arrest, and trial of Simpson were among the most widely publicized events in American history. The trial, often characterized as the Trial of the Century because of its international publicity, likened to that of Sacco and Vanzetti and the Lindbergh kidnapping, culminated after eleven months on October 3, 1995, when the jury rendered a verdict of "not guilty" for the two murders. An estimated 100 million people nationwide tuned in to watch or listen to the verdict announcement. Following Simpson's acquittal, no additional arrests or convictions related to the murders were made.

According to a 2016 poll, 83% of white Americans and 57% of black Americans believe Simpson committed the murders.

After his acquittal from criminal charges, he was taken to task on same facts through civil action; which is mentioned as follows;

Wrongful death civil trial

Following Simpson's acquittal of criminal charges, Ron Goldman's family filed a civil lawsuit against Simpson. Daniel Petrocelli represented plaintiff Fred Goldman (Ronald Goldman's father), while Robert Baker represented Simpson. Superior Court Judge Hiroshi Fujisaki presided, and he barred television and still cameras, radio equipment, and Courtroom sketch artists from the Courtroom. On October 23, 1996, opening statements were made, and on January 16, 1997, both sides rested their cases.

On February 5, 1997, a civil jury in Santa Monica, California unanimously found Simpson liable for the wrongful death of and battery against Goldman, and battery against Brown. Simpson was ordered to pay $33,500,000 in damages. In February 1999, an auction of Simpson's Heisman Trophy and other belongings netted almost $500,000, which went to the Goldman family.

The Goldman family also tried to collect Simpson's NFL
$ 28,000 yearly pension but failed to collect any money.

On September 5, 2006, Goldman's father took Simpson back to Court to obtain control over Simpson's "right to publicity", for purposes of satisfying the judgment in the civil Court case. On January 4, 2007, a federal judge issued a restraining order prohibiting Simpson from spending any advance he may have received on a canceled book deal and TV interview about the 1994 murders. The matter was dismissed before trial for lack of jurisdiction. On January 19, 2007, a California state judge issued an additional restraining order, ordering Simpson to restrict his spending to "ordinary and necessary living expenses".

12. Law of tort also finds its place in jurisprudence prevailed in Pakistan; somewhat similar remedy to affected persons and like jurisdiction is available to the Courts in Pakistan to grant damages for actionable wrongs even it amounts to felony or other crimes. This has been dealt under Fatal Accidents Act, 1855 which acknowledges the civil proceedings for damages independently, even after the criminal trial results in acquittal of accused. The object of said Act is as under:

Preamble; An Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong.

WHEREAS no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default may have caused the death of another person, and it oftentimes right and expedient that the wrong doer in such case should be answerable in damages for the injury so caused by him; It is enacted as follows:

Section-1 of Fatal Accidents Acts, 1855 throws light on grounds for damages as under:

Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.-Whenever the death of a person shall be caused by wrongful act, neglect or default, and the neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action of suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

If an offence is also an actionable wrong, affected person is not precluded to claim damages even though accused stood acquitted from criminal charge on same facts and such claim would neither be hit by principle of resjudicata nor by double jeopardy. In one of the case of death in police custody, Sindh High Court also decreed the suit of plaintiff and granted damages despite the fact accused/police officials stood acquitted from the criminal charge; said case was reported as “Mohammad Sarwar v. Government of Sindh” (PLD 2018 Sindh 360), This is because standard of appraisement of evidence in criminal and civil cases were altogether different and findings of criminal Court would not be binding on civil Court. Reliance is on “Karachi Transport Company vs. Muhammad Hanif” (2009 SCMR 1005),

13. For what has been discussed above, it is clear that civil and criminal proceedings go side by side due to their ultimate outcome and difference in standard of proof. It is equally appreciated that even after civil proceedings, there is no bar for initiation of criminal proceedings and vice versa; evidence recorded in one proceeding cannot be read in other proceedings except in some cases where any question in criminal proceedings wholly and entirely depends upon the determination by Civil Court. From the above discussion, it is concluded that order passed by the learned trial Court on application of petitioner filed u/S. 249 of, Cr.P.C. is well reasoned and based on established principles of law enunciated by the Hon’ble Courts of this country; this criminal revision being devoid of merit fails which is dismissed accordingly.

(K.Q.B.)          Revision dismissed