Malik KHUDA BAKHSH vs THE STATE

ORDER

' MIR HAZAR KHAN KHOSO, J.---The petitioner seeks leave for appeal against the judgment dated 13-4-1995 of the Lahore High Court, Rawalpindi Bench, whereby Criminal Revision No,32/1994 filed by the petitioner was rejected and order dated 30-3-1994 passed by Special Judge (Central), Rawalpindi refusing to stay criminal proceedings against the petitioner till disposal of his civil suit was maintained.

2. The facts giving rise to this petition as disclosed by the petitioner are that he is an Overseas Employment Promoter and doing business of sending persons abroad for employment under a licence issued by the Government. It is further averred by him that four persons namely Malik Tanvir, Sajjad Hussain Shah. Allauddin and Muhammad Naeem made complaint against him with F.I.A. That the petitioner on the pretext of sending them abroad for job had fraudulently deprived them of Rs,83,000 and issued a receipt on 31-12-1990. F.I.R. In respect of the same was registered against him for offence under Emigration Ordinance and Passport Act, 1976. He was challaned to face trial before the Court of the Special Judge (Central), Rawalpindi. The petitioner has further averred that the receipt was not a genuine document but was result of fraud and forgery and he had challenged it by way of filing suit under section 39 of the Specific Relief Act before a Civil Court.

But the same was dismissed in default and he had filed appeal before the appellate Court. It was also dismissed on 25-4-1994. He has challenged the same in the High Court which is still pending.

To avoid harassm ent he averred to have filed application before the Special Judge to stay the proceedings in the criminal case till disposal of the civil matter. But the Court on 30-3-1994 turned down his request and dismissed his application. He filed revision petition before the High Court which was also dismissed on 13-4-1994. He has thus come before this Court and challenged the abovesaid Orders in this petition for leave to appeal.

3. Raja Muhammad Ibrahim Satti, Advocate Supreme Court, for the petitioner contended that the controversy both in civil and criminal matters rests upon the alleged receipt executed by the petitioner and the matter regarding the cancellation of the said receipt is pending on civil side and it as such was mandatory and in the interest of justice that till decision of the civil matter the criminal proceedings against the petitioner be stayed or the proceedings be completed and judgment be not announced. He further contended that the Supreme Court in such circumstance had stayed the criminal proceedings till disposal of the civil suit. But the trial as well as the High Court failed to appreciate the same and denied to give relief to his client.

4. In support of his contentions he relied upon the cases reported in :--

(i) PLD 1968 SC 281 (Muhammad Akbar v. (1) The State and (2) Maulvi Muhammad Yasin Khan); ' PLD 1969 SC 136 (Malik Din and another v. Muhammad Aslam); (iii) 1983 PCr.LJ 1341 (Muhammad Ismail v. The State and another);

(iv) 1972 PCr.L.J. 68 (Kazi Faiz Muhammad and another v. The State and another);

(v) 1969 PCr.LJ 411 (N. Manak Ji v. Fakhar Iqbal and another); and (iv) AIR 1935 Calcutta 182 (Srikisson Beriwalla and another v. Emperor).

5. In the case Muhammad Akbar v. (1) The State and (2) Maulvi Muhammad Yasin Khan, reported in PLD 1968 SC 281 the Supreme Court has held that "normally it is true, that criminal proceedings should not be postponed pending the, disposal of civil litigation connected with the same subject- matter. But where it is clear that the criminal liability is dependent upon 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 be a conflict of decision between the Civil and Criminal Court. In such event it is equally clear that the Criminal Court has not only the right to but should also stay its hands 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. This is not a case in which the criminal litigation is being stayed by an order of the Civil Court, but this is a case where the High Court, exercising its inherent criminal jurisdiction under section 561A of the Code of Criminal Procedure, has in the interest of justice ordered the stay of the criminal proceedings. It cannot be said that it had no jurisdiction to do so."

6. In the case of Malik Din and another v. Muhammad Aslam, reported in PLD 1969 SC 136, the Supreme Court has taken view that "judgments, whether interpartes or not, are conclusive evidence for and against all persons whether parties, privies, or strangers of its own existence, date and legal effect, as distinguished from the accuracy of the decision rendered. In other words, the law attributes unerring verity to the substantive as opposed to the judicial portions of the record.

But where the judgment is interpartes, even recitals in such a judgment are admissible. A previous judgment is admissible also to prove a statement or admission or an acknowledgment made by a party or the predecssor-in-interest of a party, in his pleadings in a previous litigation. Similarly, a judgment narrating the substance of the pleadings of the parties to a litigation is admissible to establish the allegations made by them on that occasion"

7. In the case of Muhammad Ismail v. The State and another, reported in 1983 PCr.LJ 1341, the High Court has taken view that "for the foregoing reasons, the criminal proceedings between Muhammad Ismail, petitioner, and Muhammad Sarwar, respondent No,2 under section 145, Cr.P.C., in the Court of Sardar Ahmed Zia, M.I.C., Lahore, are suspended pending the final determination of the civil suit which is presently pending before the Civil Judge, Lahore. The prayer for the quashment of the said proceedings is, however, rejected. This petition, therefore, stands partly accepted, in terms of the limited relief granted, as above sated."

8. In 1972 PCr.LJ 68 (Kazi Faiz Muhammad and another v. The State and another) the High Court has taken view: "But where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustice being civil Court and the Criminal Court. In such event it is equally clear that the criminal Court has not only the right to but should also stay its hands 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. As the F.I.Rs, lodged by the second respondent were lodged only a few days before the suit filed by the applicants, the fact that the criminal complaints were filed before the civil suit is not very material. I am conscious of the possible delays in civil litigation.

However, this very submission that criminal proceedings should not be stayed on account of delays in civil litigation had been raised before the Supreme Court in Maneckji's case, but their Lordships rejected this plea and followed the view taken by them earlier in Muhammad Akbar's case which I have quoted. Mr. Rehman Kazi then submitted that it was open to the applicants to move the lower Court for a stay under section 344, Cr.P.C., therefore, they were not entitled to involve this Court's extraordinary jurisdiction under section 561-A, Cr.P.C. Merely because the applicants may have other relief this would not debar them from seeking relief from this Court, and the only question is whether a fit case has been made out for the grant of relief under section 561- A, Cr.P.C. I am aware that the powers of this Court under section 561-A, Cr.P.C. Are not to be exercised lightly but, to say the least, having heard Mr. Rehman Kazi's arguments on the question of the conflicting sale deeds, I have no doubt whatever that this is a fit case for invoking this Court's jurisdiction under section 561-A Cr.P.C."

9. In the case reported in 1969 PCr.LJ 411 (N. Manak Ji v. Fakhar Iqbal and another) the Supreme Court has taken view "though we refrain from expressing any opinion on the merits of the case lest it may prejudice either action at law it is relevant to mention for the limited purpose of this order that while it was admitted that the appellant purchased shares of the value of Rs,60,000 held by the respondent in the Pak Bank Limited his counsel was unable to point out the mode by which payment of the price of shares was made. It is thus apparent that serious questions of fact and law arise in the civil suit for determination of the Court and the plea that it was mere counterblast to the criminal case has little force. The time factor is also against the appellant's contentions. As seen, the respondent presented the cheque for payment on the 5th April 1966. Payment was refused on the 6th whereupon he issued a notice to the appellant through a counsel on the 11th April 1966, threatening legal action . The complaint made by the appellant was received by the S.S.P., Rawalpindi on the same day though it bears the date 9th April 1966. The more material date is 2-10-1966 when the report under section 173, Cr.P.C. Was submitted by the Police in the Court of a Local Magistrate. By then summons had been issued to the appellant for filing written statement in the civil suit and for settlement issues. The stay of proceedings in the criminal case was in the circumstances of the case plainly called for. No other ground to interfere with the impugned order of the High Court is made out".

10. In the case reported in AIR 1935 Calcutta 182 (Srikisson Beriwalla and another v. Emperor), the High Court has taken view, "undoubtedly the fact that is a public prosecution and not a private one is a matter which has to be considered. But that only goes to show that the prosecution may be conducted in good faith and it does not carry us much further than that. On the other hand the important question is whether the issues in the criminal case are likely to be included in the issues in the civil suit and whether in that case there is risk of a conflict of jurisdiction, was remarked by Sir Lawrence Jenkins in 1920 Cal. 624 (4). It is ordinarily undesirable to institute criminal proceedings until determination of civil proceedings in which the same issues are involved".

11. It may be seen that in case of Mst. Naseer Begum v. Sain and 6 others, reported in 1972 SCM R 584 the Supreme Court has observed that "the Evidence Act does not make a finding of fact arrived at on the evidence before the Court in one case evidence of that fact in another case". Thus, a judgment in a Civil Court, as pointed out by M. Munir in his Law of Evidence, "is not admissible in a criminal proceeding to establish the truth of the facts upon which it is rendered. In a criminal trial it is for the Court to determine the question of the guilt of the accused and it must do so upon the evidence before it". In the case of S.N. Gupta & Co. v. Sadanada Ghosh, it was held by the Dacca High Court that a judgment of acquittal in a criminal case, only decides that the accused has not been proved guilty and to this extent only and no more is it to be taken as correct and conclusive in a subsequent civil suit between the parties".

12. The instant case falls within the four corners of last-quoted authority. The authorities relied upon by the learned counsel for the petitioner do not help him. In the case in hand, besides the receipt allegedly to have been issued by petitioner there is ocular version of four witnesses namely Malik Tanvir, Sajjad Hussain Shah, Allauddin and Muhammad Naeem, against the petitioner. The trial Court itself is competent to look into the genuineness of the document. Either by comparing the signatures of the petitioner with the signatures on the receipt or sending the document for expert's opinion. It would be for the trial Court to determine the question of the guilt or innocence of the accused upon the ocular and documentary evidence produced before it. A judgment of the Civil Court is not admissible in a criminal proceeding to establish the truth of the facts upon which it is rendered .

13. In such view of the fact we are inclined to hold that the Special Judge c and the High Court rightly did not stay the proceedings against the petitioner.

14. Resultantly there is no force in the petition which as such is dismissed accordingly. Leave to appeal is refused.