AKHLAQ HUSSAIN KAYANI Versus ZAFAR IQBAL KIYANI

CH. EJAZ YOUSAF, J .---This criminal petition for leave to appeal is directed against judgment dated 28-9-2007 passed by a learned Single Bench of the Peshawar High Court, whereby F.I.R. No. 488 of 1997 registered against the private respondents, at the instance of the petitioner, was quashed in exercise of powers under section 561-A, Cr.P.C.

2. Facts of the case lie in a small compass. On 17-4-2006 F.I.R. bearing No. 488 of 1997 was registered at Police Station Saddar Kohat under sections 417/418/420/465/466/467/468/471/474, P.P.C. on the direction of PDSP in consequence of a complaint made by the petitioner from London, wherein it was stated that complainant's father in law, namely, Inayatullah Kayani, had died in the year 1992. His wife, namely, Kaneez Feza, also died in the year 1996. It was alleged therein that private respondents and one Siraj Gul, in connivance with the notary public and officials of the treasury, had prepared a forged promissory note for the sale of motorcar bearing Registration No.1626 PRC and on the basis thereof prepared a transfer letter in the name of Imtiaz Hussain Bangash, which was also singed by Zafar Iqbal and Siraj Gul as witnesses. It was further alleged that since Inayatullah Kayani had died in the year 1992 and the document was prepared in the year 1997, therefore, offence of forgery being patent, the accused persons may be proceeded against. Private respondents preferred Criminal Miscellaneous Quashment Petition in the High Court which was allowed vide the impugned order. Resultantly, the aforesaid F.I.R. and all subsequent proceedings were quashed, hence this petition.

3. It has been mainly contended by the learned counsel for the petitioner that since Inayatullah Kayani had died on 25-4-1992 and the sale-deed as well as transfer letter were allegedly prepared on 6-3-1997 and signatures of the deceased were forged thereon, hence, there was no justification to quash the F.I.R. as well as the proceedings carried out in consequence thereof.

4. Mr. Shahzad Akbar Khan, learned counsel for the private respondents, on the other hand, while controverting the contention raised by the learned counsel for the petitioner, has submitted that the vehicle in question, originally, belonged to father of respondent No.1, but after his death fell in the share of the said respondent and thus he was within his rights to sell the same. Whereas, the complainant had no locus standi to file the complaint in question because he had no concern with the vehicle in question. At the most, his late wife could have, possibly been a claimant, but since she omitted to lay a claim in her life time, therefore, at such a belated stage it was not sustainable. He has contended that since a civil suit seeking declaration to the effect that the complainant and other legal heirs of Mst. Kaneez Feza were entitled to have their share in the sale of the car in question and the transfer letter in question was forged, was filed by the complainant himself and it was pending adjudication and claim of the petitioner towards ownership of the car in question was dependant on the outcome of the said suit, therefore, the F.I.R. was rightly quashed. It is further his case that since the F.I.R. was not signed by the petitioner himself as required by section 155, Cr.P.C. therefore, it could not have been registered.

5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have gone through the record of the case with their assistance, minutely.

6. Admittedly, the car in question was owned by late Inayatullah Kayani. After his death his entire property moveable/immoveable devolved upon his legal heirs including Mst. Kaneez Feza. It has also come on record that Mst. Kaneez Feza too, died in the year 1994 leaving behind the complainant as one of her legal heirs. Though it is not apparent on record as to whether property left by late Inayatullah Kayani was distributed amongst his legal heirs or not, yet, the fact remains that on 14-4-2006 a civil suit was filed by the complainant and others in the court of Senior Civil Judge Kohat, wherein the following relief was claimed:--

Record reveals that later-on, F.I.R. in respect of the same issue was got registered and proceedings in pursuance thereof were carried out which are subject matter of the instant petition.

7. Although civil liability is independent of the criminal liability and no invariable rule exists to the effect that pending decision of a civil suit criminal proceedings must be stayed as it is purely a matter of discretion yet, while exercising the discretion, the guiding principle should be to see as to whether the accused is likely to be prejudiced if the criminal proceedings are not stayed but when it is clear that the criminal liability is dependent on the outcome of civil litigation, then criminal proceedings must be stayed, particularly when dispute is with regard to title of the property. The case of Muhammad Akbar v. The State and others (PLD 1968 SC 281) is an apt example to the proposition in hand wherein, in somewhat identical situation, proceedings in the criminal case were stayed. In that case proceedings were initiated for the alleged forcible and dishonest taking away of a motor bus by Iqbal-ur-Rahman and 40 other persons of whom 16 were named in the First Information Report. After submission of challan accused persons were proceeded against. The accused persons moved the High Court for quashment of proceedings which was though refused yet, the proceedings were stayed till the time final decree in the civil suit between substantially the same principal parties, for the dissolution of a partnership and rendition of accounts, was passed. Leave to appeal was granted to consider as to whether in view of the facts and circumstances of the case the learned Judge acted legally in staying further proceedings in the criminal case? While dismissing the appeal it was held that normally criminal proceedings should not be postponed pending decision of the civil litigation connected with the same subject-matter but where it is clear that the criminal liability is dependent on the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustice being done in the case, if there is a conflict of decision between the civil court and the criminal court then in such event it is equally clear that the criminal court has not only the right to but 'should also stay its hands of until the civil litigation is disposed of, for it is not desirable that when the title to the property itself is in dispute, the criminal courts should give a finding in respect of the same question. The above decision was latter followed in a number of cases, including the following:

(1) Abdul Ahad v. Amjad Ali and others (PLD 2006 SC 771)

(2) Sheraz Ahmad' and others v. Fayyaz-ud-Din and others (2005 SCMR 1599)

(3) Riaz-ul-Haq v. Muhammad Ashiq Jorah and others (2000 SCMR 991)

(4) A. Habib Ahmad v. M.K.G. Scott Christian and others PLD 1992 SC 353

(5) Abdul Haleem v. The State and others (1982 SCMR 988)

(6) Muhammad Tufail v. The State and another (1979 SCMR 437)

From the perusal of the relief claimed in the civil suit, it is clear that complainant has himself sought a declaration from the civil court that transfer letter in question dated 8-3-1997 was bogus, forged and fictitious and was ineffective against his rights and as an alternate relief it was also prayed that a decree to the extent of his share in the sale proceeds of the car in question may also be passed. Since eligibility of the complainant to file the complaint itself is dependant upon the out-come of the civil suit, therefore, in our view, it was better for the High Court to have stayed the proceedings in the criminal case till the decision of the civil suit instead of quashing the F.I.R. Resultantly, this petition is converted into appeal and partly allowed to the extent that the impugned order dated 28-9-2007 to the extent of quashment of F.I.R. is set aside, however, proceedings in the criminal case are stayed till the decision of the civil suit.

N.H.Q./A-37/SC Order accordingly.