1995 PLP 1016 (SCMR)

‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 186(1), S. 452/506/448/511/148/109‑‑ Constitution of Pakistan (1973), Art. 185(3)‑‑‑Both the parties had filed civil suits with regard to the premises in dispute and stay had been granted in the respondent's suit‑‑‑Leave to appeal was granted to petitioner (complainant) to examine the record in the light of his contention that on the basis of stay order in civil suit which was pending, criminal case got registered by him relating to the same subject‑matter could not be quashed altogether by High Court, but could be stayed only. M. Hanif Khatana, Advocate Supreme Court and Tanvir Ahmed, ,pry Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 4th May, 1994. SAJJAD ALI SHAH, J.‑‑‑This petition is barred by 423 days and it is stated by the learned counsel for the petitioner that petitioner is complainant and case arising from his F.I.R. is .quashed by. the High Court under section 561‑A, Cr.P.C. without hearing him and he was not served at all in that case. Application under section 5 of the Limitation Act for condonation of delay supported by affidavit is filed in this Court, which is on the record. It is stated in the affidavit that after getting ex parte order from the High Court, respondents filed suit for damages in which notices were issued and served upon the petitioner, who filed review application in the High Court which was also dismissed

2. Perusal of impugned order shows that nemo appeared for Muhammad Hanif but in the copy of Mamorandum of Criminal Miscellaneous filed in the High Court, two respondents are mentioned as State and Soofi Muhammad Anwar. Muhammad Hanif is 4ot impleaded as respondent in the proceedings before the High Court It is apparent that petitioner Soofi Muhammad Anwar was party in the proceedings before the High Court but could not appear as he was not served as claimed by him, Delay is condoned.

3. The dispute between the parties is with regard to a quarter. According to the petitioner this quarter was allotted to Muhammad Hanif, who appointed petitioner as his attorney and such entry was made in the office of Housing and Planning and possession was also taken over by him. Respondents also claimed allotment of the same quarter which was cancelled previously and they trespassed in the quarter on 29‑4‑1986 and in that connection F.I.R. No. 127 of 1986 was registered at P.S. Township, Lahore, for offence under sections 452, 506, 448, 512, 148 and 109, P.P.C. against them and criminal case arising there from was pending in the Court of Illaqa Magistrate, which has been quashed by the High Court in the manner described above.

4. It appears from the record that in respect of dispute with regard to the quarter, petitioner filed suit and Mst. Badshah Begum respondent also filed suit and stay has been granted in the suit filed by Mst. Badshah Begum which was confirmed on 28‑6‑1986 and prayer for stay made by the petitioner was declined. Contention is raised on behalf of the petitioner that on the basis of stay order in civil suit, which is pending, criminal case relating to the same subject‑matter cannot be quashed altogether but can be stayed only. Leave is granted to examine the record in the light of contention raised above. N.H.Q./ ‑2158/S Leave granted.