ABDUL HALEEM vs The STATE And Another

ORDER

1. ANWARUL HAQ, C. J.--This appeal by the leave of the Court, seeks to call in question an order made by a learned Judge of the High Court of Sind & Baluchistan at Karachi, dated the 20th of April, 1976, by which criminal proceedings initiated by the appellant Abdul Haleem against respon- -dents Loung Khan and Ghulam Dastgir under sections 420 and 467 of the Pakistan Penal Code have been quashed.

2. The appellant Abdul Haleem is an allottee of an area of agricultural land in Deb Tiga of District Dadu, and was apparently wanting to sell the same. Respondent No. 2 Loung Khan introduced himself to the appellant as a broker, who was in a position to find a purchaser for the appel--lant's land. The appellant executed a special power of attorney in favour if Loung Khan on the 19th of July, 1974, and then a similar document on the 1st of August, 1974. However, he cancelled the second document on the 13th of September, 1974 as he suspected that the respondents were in league to defraud him. The appellant sent a notice to Loung Khan in this behalf, and was surprised to learn from the latter's reply that the appellant had already executed a sale agreement on the 19th of July, 1974 in favour of Loung Khan. The appellant alleged that this was a forged document.

3. On these allegations he filed a complaint against the two respondents in the Court of a Magistrate at Karachi, who issued a process for their appearance after recording the statement of the appellant on 17-12-1974. This order was set aside in suo motu revision by the learned Additional District Magistrate/ Deputy Commissioner, South Karachi, and the case was entrusted for disposal to another Magistrate. The appellant thereupon moved a revision petition, which was accepted by the High Court on the 14th of May, 1975 and the case was entrusted to the Magistrate, who had originally issued process against the respondent.

4. While the criminal complaint filed by the appellant was thus pending before the 12th Additional City Magistrate, Karachi, the appellant filed a civil suit on the 16th of April, 1974 for the cancellation of the sale agreement in dispute. On the 24th of May, 1975, the two respondents also filed a suit for specific performance of the same agreement at Dadu. Their application for a temporary injunction was, however, dismissed by the Civil Court on the 12th of November, 1975, but by an order trade on the 2nd of June, 1977, the High Court directed the maintenance of status quo in regard to the land in question. The respondent's suit was dismissed on the 30th of July, 1978, on account of default in appearance, and their application for setting aside this order was also dismissed on 3-4-1979.

5. Their appeal is now pending in the High Court.

6. On the other hand the suit filed by the appellant was decreed ex parte on the 20th of July, 1976, against the respondents, and the latter's application for setting aside ex parte decree was dismissed by the trial Court on the 28th of January, 1979. It was stated at the bar that the respondents had not agitated any further against this ex parte decree which, according to the- learned counsel for the appellant, has thus become final.

7. The respondents moved the High Court under section 561-A of the Criminal Procedure Code for quashing the criminal proceedings mainly on the ground that the dispute between the parties was primarily of a civil nature. As already stated, this prayer was allowed by the High Court on the 14th of May, 1975.

8. Leave to appeal was granted to examine the contention that the initiation of civil litigation between the parties could not negative the allegations made by the appellant that the two respondents had forged the agreement of sale, and that the quashment order made by the High Court had the effect of stifling their prosecution against the established principles of the administration of criminal justice in such matters.

9. In support of these submissions Mr. Muhammad Nawaz, learned counsel for the appellant, has drawn our attention to Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC317), Muhammad Akbar v. State (PLD 1968SC281), Muhammad Ahmad v. State (1972 SCMR 85), Dodo Khan v.

10. Jalaluddin and another (PLD 1973 Kar. 564), Manzoor Hussain and another v. Manzoor Hussain (PLD 1974 Lah. 202), Ghulam Akbar v. Muhammad Ilyas (PLD 1975 Kar. 231) and Muhammad Tufail v.

11. The State and another (1979 SCMR 437), all of which purport to lay down that the mere pendency of civil litigation does not have the effect of negativing the criminal liability of the accused, if the facts alleged disclose the commission of criminal offences, even if the impugned documents are the same in both civil and criminal cases. The general rule approved in these authorities is to the effect that it may, however, be advisable to stay criminal proceedings until the conclusion of civil litigation between the parties so as to avoid a conflict of findings on the same questions by civil and criminal Courts.

12. Mr. Usmani Ghani, appearing on behalf of respondent No. 1, submits that the narration of facts in the complaint filed by the appellant himself shows that there were genuine business dealings between the parties, and, accordingly, there could be no question of the respondent acting with a dishonest intention, and the dispute between the parties obviously is that of a civil nature. He submits that, in the circumstances, the High Court was right in thinking that the criminal proceedings should be quashed, but that the appellant should be left free to recommence them after the conclusion of the civil litigation. The learned counsel, however, concedes that the correct rule to follow in such cases is to stay criminal proceedings until the conclusion of the civil litigation.

13. Mr. Abdul Sattar Shaikh, the learned Additional Advocate-General appearing for the State, supports the appeal to the extent that the proper order to make in the circumstances of the case was to stay the proceedings in the criminal complaint and not to quash them during the pendency of the civil litigation.

14. After hearing the learned counsel for the parties, and perusing the authorities cited at the bar, we are of the view that the High Court should have followed the rule laid down by this Court in Muhammad Tufail v. The State and another, namely, that during the pendency of the civil litigation the criminal proceedings initiated by the appellant should have been stayed. We would, accordingly accept this appeal to this extent and modify the order of the High Court to the effect that the proceedings in the criminal complaint instituted by the appellant should remain stayed during the pendency of the civil litigation between the parties on the subject-matter. As already stated, the suit-filed by the appellant seems to have been finally decided, while the appeal filed by the respondents against the dismissal of their suit in default is still stated to be pending in the High Court, it would be for the appellant to appraise the trial Court, namely, the Magistrate concerned, of these facts so that the Court could then proceed in accordance with law.

15. The appeal is disposed of accordingly.