1976 P Cr (PLP)

Usman Ghani, Asstt. A: G. for the State. Syed Ishrat Hussain Rizvi for Respondent No.

2. Date of hearing : 15th February 1974., This is an application under section 561‑A of the Criminal Procedure Coda asking that the proceedings in a Criminal Case in which the applicant is the accused person and which is pending before the learned Sub -Divisional Magistrate, Harbour, Karachi, be stayed pending the disposal of two suits bearing Nos. 290/71 and 1681/1972 in which the applicant and Respondent No. 2 in this case, who is the first informant in the C9rminal Case pending, are parties. An application for that purpose was made before the learned Magistrate who dismissed it and the present application also asks that this order of dismissal be set aside; clearly the application should have been under sections 435 and 439 of the Criminal Procedure Code which give sufficient powers to this Court for that purpose and invocation of section 561‑A of the Criminal Procedure Code was not at all necessary, Indeed where the Code makes express provision then not only is it neces sary to exercise powers under section 561‑A of the same Code but, as has been often held before, that section will not even apply. However, since this Court can exercise Criminal Revisional Jurisdiction both suo motu and upon the application of a party and because the other party bas also been duly served and has in fact appeared and been heard by me in these proceedings, no useful purpose will be served by insisting upon the applicant now ins king a formal application for amendment and I has accordingly considered this as a Revision Application and propose to decide it as such.

2. It is an admitted position between the parties that a Bedford Truck bearing Registration No. KAU‑6784 belonged to the applicant Wazirali who entered into an agreement with opponent No. 2 Bangol as a result of which the latter obtained its possession. I deliberately refrain from stating what the effect of this agreement between the parties is because that is one of the principal matters in dispute in the civil Courts and also in large measure before the Criminal Court. Admittedly, however, opponent No, 2 then filed the suit bearing No. 290 of 1971 in the Court of the Civil Judge First Class seeking a declaration and injunction that the truck belonged to him and also an injunction to restrain the applicant from disturbing his possession thereof. It is then alleged by the applicant that this suit was compromised and that possession of the truck was banded back to the applicant who was then to pay some further moneys due to the applicant whereafter a formal application was to be presented to the civil Court for a compromise. I need hardly add that this is vehemently disputed by the opponent who claims that the pos3ession of the truck went back to the applicant in wholly different circumstances. However, admittedly thereafter opponent No. 2 lodged a first information report as a result of which the applicant has now been prosecuted under section 379 of the Pakistan Penal Code. Thereafter the applicant filed a suit in the Court of the learned XII Civil Judge, Karachi bearing No. 1681/197 asking for declaration that he is the owner of the truck in question and for an injunction restraining opponent No. 2 from interfer ing with his possession. It is not worthy that it is alleged in the plaint in this suit that the earlier suit was in fact compromised but that the Opponent No. 2 nevertheless filed a false report. In this suit the learned Civil Judge has granted an order of status quo.

3. The present application before me therefore claims that the matter in dispute between the parties is of a civil nature and that the proceedings in the Criminal Court be quashed or at any rate stayed pending the decision in the Civil Courts. Perhaps this prayer for quashing of the entire proceedings explains why the present application was made under section 561‑A of the Criminal Procedure Code instead of invoking the Criminal Revisional Jurisdiction of this Court but before me, learned counsel for the applicant limited his prayer to one of stay only.

4. Now under section 344 of the Criminal Procedure Code, criminal Courts are empowered to adjourn cases from time to time for sufficient reason and the question has often arisen whether such an order should be made when litigation is 'pending between the parties in a civil Court also. Consequently it seems to me that the learned Sub‑Divisional Magistrate Harbour, entirely misunderstood the position in law when in refusing to adjourn the case he merely said "no instruction or order received from civil Court or other court for staying the proceedings of this criminal case. Case shall proceed from next date of hearing". The question before the learned Magistrate was not whether any other court had directed a stay but whether he himself should exercise the power undoubtedly conferred upon him by section 344 to adjourn the case.

5. There can be no hard and fast rule as to when criminal proceedings ought to be stayed because of the pendency of Civil Cases arid while reference can be made to a large number of cases which exemplify cases in which adjournments should and cases in which adjournment should not be granted, the position I think is admirably stated, it I may say so with respect, by Farooqi, J in State v. Elahi Bux (1) in which tine learned Judge observed, after having referred to a Full Bench case of the Lahore High Court, as follows: I am in respectful agreement with the ratio in the two judgments referred to above, namely that the judgments of the civil Court except for matters referred to in sections 40, 41 and 42 of the Evidence Act ate irrelevant unless their existence is a fact in issue or unless they are relevant under some other provisions of the Act. It follows that the judgment in a civil suit and the findings therein are not binding on the criminal Court. But if I may point out with great respect, that is not the only consideration which arises when an application is made before a criminal Court for the stay of the proceedings pending the decision of a civil suit involving the same subject‑matter. When such an application is made, the party is not asking for the dismissal of the complaint or for the termination of the criminal proceedings. All that is asked for and which is permissible under section 344, Cr. P. C. is a postponement of the proceedings and the question that arises is whether there is a reasonable ground for it. If such a ground is made out it is within the power of the Court to postpone the proceedings. I agree, if I may say so, that merely because a civil suit has been instituted upon the same subject‑matter that by itself is not necessarily a good ground for the postponement of the criminal proceedings. Sometimes such suits are filed with the ulterior purposes of delaying or obstructing the criminal case. If that is so the Court may refuse stay. In another case the offence complained may be of such a serious character that the Court may justly take the stand that it must go on with it and decide it regardless of the pendency of a civil suit or the decision thereof. But I do not think that it can be laid down as a general rule that whenever an application is made for the postponement of a criminal proceeding upon the ground that the subject‑matter is before a civil Court the criminal Court must necessarily reject teat prayer upon the sole ground that the judgment of the civil Court will not be binding on it. Neither the answer by the Full Bench to the reference made to them, nor the judgment of Kaikaus, J. to the cases mentioned above lay down this proposition. The criminal Court is empowered under section 344 to adjourn the inquiry or trial upon a reasonable ground. Therefore when an application for adjournment upon the ground of the pendency of the civil suit upon the same subject‑matter, is made the question which falls for consideration is whether it constitutes a reasonable ground. That, in my opinion, must be decided upon the facts of each case. The postponement of the proceedings is not a rule of law but a rule of prudence and in doing so the Court is guided by consideration of public interest. The interest of the complainant need not necessarily be the public interest. No hard and fast rule can be laid down. The decision must depend upon the nature of the case, the bona fides of the party moving the application for stay, the conduct of the com plainant and his motive in so far as it can be ascertained, the desirability of avoiding long drawn‑out disputes of civil nature in two Courts side by side in competition with each other and similar other considerations. It is true that the decision of the civil Court would not bind the criminal Court but it may well be that when the parties have obtained an authoritative decision of the civil Court, they themselves might not like to press the matter further in the criminal Court. One of the considerations which has often weighed with the Court, though not decisive, is whether the criminal case had been instituted by the State or by a private party."

6. I am in entire and respectful agreement with the observation made In the present case while it is true that the criminal Court is not concerned with the question of title and that a person may be guilty even of the theft of his own property in exceptional circumstances, it is clear that the very circumstances alleged in the criminal case for making out a case of theft are also part of the allegations traversed in the civil suits. A decision on the question of title by the civil Court, although not binding on the criminal Court, It is obvious, will very greatly affect the matters for determination by the criminal Court. In these circumstances I think it would have been a proper exercise of discretion for the criminal Court to have adjourned the criminal case from time to time until the decision in the civil courts. I accordingly, set aside the order of the learned Magistrate refusing so to adjourn and direct that the case shall be adjourned until such time as the civil courts have decided the matter. Of course, the actual orders of adjournment will be fixed dates and not sine die. Petition allowed,