2017 PLP 390 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Criminal Miscellaneous Application No.532-L of 2016 This miscellaneous application is allowed and the documents appended therewith are permitted to be brought on the record of the main appeal. Disposed of. Criminal Appeal No.177-L of 2015

2. A son of respondent No. 2 was granted a scholarship by the appellant's educational institution for the purposes of studying abroad and after two years of such study respondent No. 2 entered into an agreement with the educational institution regarding grant of a loan for the purpose of completion of the third year of study of his son abroad. In furtherance of that agreement an indemnity bond was signed by respondent No. 2 and some post-dated cheques were issued in favour of the institution which were encashable after the respondent's son had completed his studies abroad. After completion of such studies of the respondent's son respondent No. 2 turned around and started maintaining that he had been coerced into entering into an agreement with the educational institution for the purpose of a facility of loan and in that connection he was forced into signing an indemnity bond and issuance of post-dated cheques. With that stance respondent No. 2 filed a civil suit against the educational institution and that suit is statedly pending at present. In the meanwhile one of the cheques issued by respondent No. 2 in favour of the educational institution was presented for encashment before the relevant bank but the said cheque was dishonoured and consequently an FIR was lodged by the present appellant against respondent No. 2 for an offence under section 489-F, PPC. Respondent No. 2 filed an application before the trial court under section 249-A, Cr.P.C. seeking his acquittal which application was turned down by the trial Magistrate and subsequently a revision petition filed by respondent No. 2 before the Court of Session also met the same fate. Thereafter respondent No. 2 approached the Lahore High Court, Lahore through a petition filed under section 561-A, Cr.P.C. which was partly allowed by a learned Judge-in-Chamber of the said Court on 15.01.2015 and instead of acquitting the respondent it was ordered that the proceedings of the criminal case pending before the trial court would remain stayed till the decision of the suit pending before the civil court. Hence, the present appeal by leave of this Court granted on 30.12.2015.

3. We have heard the learned counsel for the parties at some length and have perused the relevant record with their assistance.

4. We have particularly noticed that during the pendency of the above mentioned civil suit instituted by respondent No. 2 an interim order had been passed by the civil court on 04.05.2009 restraining the appellant and the relevant educational institution from encashing the cheques in issue in any unlawful manner but that interim order was confined in its effect only to the period till the next date of hearing, i.e. 26.05.2009. It has not been shown to us that on any subsequent date of hearing before the civil court the said interim relief had been extended in favour of respondent No. 2 and against the present appellant or the relevant educational institution. We have, however, been apprised of the fact that on 31.05.2010 an order was passed by the civil court whereby an interim injunction prayed for by respondent No. 2 had been finally granted. We have particularly noticed that on 07.12.2009 the cheque in issue had been dishonoured and it has not been shown before us through any document that on the said date any interim injunction issued by the civil court held the field.

5. We have gone through the indemnity bond signed by respondent No. 2 and with reference to many clauses thereof we have found it to be evident that at the time of entering into that agreement with the educational institution respondent No. 2 had apparently acted voluntarily and without any coercion and on that occasion he had agreed to all the terms of the agreement and had obtained a financial facility which was availed by him fully but it was much later that he had turned around after availing the financial facility and had started maintaining that the agreement entered into by him with the educational institution was a result of force and coercion applied against him. We do not want to comment on this aspect of the case any further lest it may prejudice any party's case before the civil or criminal courts but the fact remains that the cheques issued by respondent No. 2 were issued when a financial liability or obligation had already been incurred by respondent No. 2 and those cheques had been issued towards fulfillment of that obligation. Issuance of the relevant cheque by respondent No. 2 and its dishonouring by the bank are facts which are not disputed.

6. We note that the subject matter of the civil suit mentioned above and the subject matter of the present criminal case are quite distinct inasmuch as the civil suit pertains to an authority or otherwise of the educational institution to amend its rules and to continued application of the original scholarship rules to the respondent's son or not whereas the present criminal case is about dishonest issuance of a cheque and its dishonouring and regarding criminal liability of respondent No. 2 in that regard. The law is settled that there is no universal principle that whenever a civil suit and a criminal case involve similar or identical subject matters the proceedings before the criminal court must necessarily be stayed and a reference in this respect may be made to the cases of Syed Mohammad Ahmad v. The State (1972 SCMR 85), Muhammad Akbar v. The State and another (PLD 1968 SC 281), Soofi Muhammad Anwar v. Mst. Badshah Begum and 6 others (1999 SCMR 1475), M. Aslam Zaheer v. Ch. Shah Muhammad and another (2003 SCMR 1691), Rafique Bibi v. Muhammad Sharif and others (2006 SCMR 512), Haji Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192), Abdul Ahad v. Amjad Ali and others (PLD 2006 SC 771) and Seema Fareed and others v. The State and another (2008 SCMR 839).

7. It may not be out of place to mention here that it had never been prayed by respondent No. 2 before any court below that the proceedings before the criminal court may be stayed during the pendency of the civil suit and the High Court had granted that relief to respondent No.2 without the same ever having been formally prayed for. In the circumstances of the case noted above we have found the relief granted by the High Court to respondent No. 2 to be hardly called for on the factual or legal planes. This appeal is, therefore, allowed and the impugned judgment passed by the High Court on 15.01.2015 is set aside. MWA/M-79/SC Appeal allowed.