1989 P Cr (PLP)

Date A C No. Amount 497479 5‑10‑83 MCB 330 Rs. 1,00,000 500745 21‑3‑84 ‑do‑ Rs.5,00,000 55446 13‑6‑84 ‑do‑ Rs.2,00,000

3. The following cheques were made but by him and cash was collected by Mr. Tasneem Zaki from the bank. In all cases he acknowledged to have received the cash from his colleague Mr. Tasneem Zaki and he kept these sums for his own use: Cheque No. Date A/C No. Amount 715504 27‑12‑83 MCB 161 Rs. 9,000 716225 22‑2‑84 ‑do‑ Rs.22,520 716246 5‑4‑84 ‑do‑ Rs.17,350 716260 15‑3‑84 ‑do‑ Rs.19,927 717737 13‑6‑84 ‑do‑ Rs.15,94 717770 20‑6‑84 ‑do‑ Rs. 7,01 717783 29‑7‑84 ‑do‑ Rs.5,741 717800 23‑7‑84 ‑do‑ Rs. 7,10 5 We are conducting further enquiry into the affairs dealt with by him in the office. It is requested that the accused may please be arrested for theft, criminal breach of trust, misappropriation, cheating and committing forgery thereby depriving the company of the abovementioned funds by his dishonest means and converting the same into his own use. Yours faithfully, (Sd.) Rauf Jafrani Secretary/Principal Officer." That after necessary investigation the case was challaned before the Court. The co‑accused Tasneem Zaki filed an application under section 265‑K, Cr.P.C. before the learned trial Judge, and instead waiting for the result, he filed an application for quashment of the above case being Criminal Miscellaneous No. While the present application was filed on 13th May, 1987, the matter came up before the Court for hearing on number of dates but it was adjourned at the request of one or the other party. However, since the application filed by Tasneem Zaki before the trial Court under section 265‑K, Cr.P.C. was still sub judice before the learned trial Judge, therefore, his quashment application was dismissed by consent, and it was ordered that the applicant Tasneem Zaki would press his application under section 265‑K, Cr.P.C. before the learned trial Judge after two material witnesses were examined. I have heard Mr. Z.U. Ahmed, learned counsel appearing for the applicants, Messrs MA. Kazi and Abdur Rauf appearing for the respondents in the present application, Mr. Imam Bux Shaikh for the State. It was contended by Mr. Z.U. Ahmed, learned counsel appearing for the applicants that in view of the fact that the allegations regarding forgery were withdrawn by Mr. Abdul Rauf, learned counsel appearing for the respondent in Suit No. 752 of 1984, on 22‑9‑1986 it will be in the interest of justice that the criminal proceedings pending against the applicant be stayed till the final disposal of the Suit No. 752 of 1984, pending before this Court. Otherwise, there was likelihood of conflict of judicial decisions in the case. In support of his contentions, the learned counsel appearing for the applicants has relied upon number of decision of the superior Courts. On the other hand Mr. M.S. Kazi, learned counsel appearing for the defendant has contended that the charge has been framed against the accused under sections 408, 419, 420, 40, 471 and 109, P.P.C. That the civil proceedings are likely to take long time in its disposal and, therefore, it will not be appropriate to stay the criminal proceedings till the disposal of the civil suits. That the applicant had not moved the trial Court for stay of proceedings or for their acquittal and, therefore, the present application was premature. Mr. Imam Bux Shaikh, learned counsel appearing for the State, has adopted the argument of Mr, MA. Kazi learned counsel appearing for the respondent, so also Mr. Abdul Rauf learned counsel appearing for the respondent. I have considered the contentions of the learned counsel. No doubt civil suits being Suits Nos. 652 of 1984 and 358 of 1985 are pending in this Court between the same parties. In the criminal case the allegations against the applicant No.1 and co- accused Tasneem Zaki are that the applicant No.1 had prepared voucher of Rs.25,000 for sending T.T. to site Nowshera M.C.B. for project expenses but withdrew the amount personally and used the same and the T.T. was not sent. In the same manner, he made out other cheques, encashed them personally, and misappropriated and converted the amounts withdrawn for his own use. On 29th) August, 1983, he prepared cheque No. 3575, for Rs.1,00,000 (Rupees one lac) toy be sent to M.C.B., Nowshera through T.T. but in fact he issued the actual cheque in the name of Abdul Jalil Bintory. It is further alleged that he had opened Account No. 989‑7 with Habib Bank Commercial Branch, Karachi impersonating himself as Abdul Bintory and deposited the above cheque of Rs.1,00,000 in the said amount, and later on collected the money himself. In some of the cases, cheques were prepared by the applicant No.1, and cash was collected by co- accused Tasneem Zaki from the Bank, and according to the F.I.R. The applicant No. 1 has acknowledged to have received the cash from his co‑accused Tasneem Zaki and converted the above amount towards his own use. As far as contention of Mr. A.U. Ahmed was concerned, there is no doubt that Mr. Abdul Rauf learned counsel appearing for the respondent in Suit No. 752 of 1984 had withdrawn the allegation regarding forgery on 22‑9‑1985, but the allegations regarding defalcation/breach of trust are still there. As far as the decisions cited by Mr. Z.U. Ahmed were concerned, there is no cavil with the principles laid down in the above decisions, but each case has to be decided on its own facts. There is no doubt that in appropriate cases the Court can stay criminal proceedings till the decision of the civil suit if it is found that the criminal liability is dependent upon the result of civil litigation or is so intimately connected with it that there is danger of grave injustice being done in case the criminal case is allowed to proceed, and in cash circumstances, the proceedings in criminal cases can be stayed. However, in view of the fact that the applicants have not applied to the trial Court for stay of proceedings, and in view of my order passed in Criminal Miscellaneous No. 320 of 1987, filed by co‑accused Tasneem Zaki, I am not inclined to allow the present application. The order passed by me in Criminal No. 320 of 1987 reads as follows:‑ "From the perusal of quashment application it appears that the applicant had moved application under section 265‑K, Cr.P.C. before the learned trial Judge and the same is still pending. This fact has not been controverted by any of the parties. Moreover, it is a case in which disputed questions of fact are also involved, therefore, the present application is premature and is accordingly dismissed as not pressed. However, the applicant can press his application under section 265‑K, Cr.P.C. which is already pending before the learned trial Judge after complainant and one witness are examined." In view of the above position the present application is dismissed for the time being. However, the applicants can move the learned trial Judge for acquittal or stay of proceedings if so advised after complainant and one witness is examined. M.Y.H./G‑87/K Petition dismissed