1999 PLP 909 (MLD)

(a) Judgment and decree against the Defendants Nos. l, 2 and 3 jointly and severally for a sum of Rs.318,000 together with interests and costs. (b) Judgment and decree against the Defendants Nos. l and 2 jointly and severally for a sum of Rs.520,000 with interest and costs. (c) Judgment and decree against the Defendants Nos. l and 2 jointly and severally for a sum of Rs.1,872,080 with interest and costs. (d) Judgment and decree against the Defendant No.1 for a sum of Rs.250,000 with interest and costs." Moreso, my attention has further been invited to the written statement filed by the defendants in the suit indicating the arbitration clause as is available under the contract for the purchase of machinery by the Karachi Shipyard and Engineering Works. Such arbitration clause is also stated to be available in the counter claim, if any. This Court upon dealing with the said suit had framed B specific issue on 2-2-1992 which for the purpose of ready reference are re?produced hereinunder. "COURT ISSUES (a) Whether the Defendant No.1 had-to supply second hand machine to the Plaintiff? (2) Whether the Defendant No.1 has supplied 4 (Four) Machines out of six machines to plaintiff? (3) Whether the value of four machines supplied to Plaintiff is more than Advance money to Defendant No.1 i.e. the plaintiff has machines more the advance payment made to Defendant No.1.? (4) Whether the Plaintiff has to provide the items as stated in para. 2 of the Written Statement for the operation of the machines, supplied by the Defendant No.1 and these items are necessary for operation of machines? (5) Whether Insurance/Bank Guarantee required or liable when defendant has supplied the machines to plaintiff more than Advance payment? (6) Whether plaintiff paid the balance cost of 4 machines to Defendant No.1. And part payment within time? (7) Whether the plaintiff is competent to set-up Enquiry Committee and asked the Defendant No.1 to appear before Enquiry Committee? (8). Whether the Plaintiff is competent to suo motu survey the machines and reject the 4 machines (illegible) the parties? (10) Whether the Plaintiff has violated terms of contract and by this violation by the plaintiff the defendant No.1 has suffered financial loss and the plaintiff is liable to pay and compensate the defendant as prayed Counter-claim, in w/s? (11) Whether the plaintiff failed to construct civil foundation necessary to errect and instal heavy duty machines Serial Nos.4 and 6? (12) Whether the defendant No.2 is liable under the guarantee? (13) What should the decree be? Upon examining these issues, the entire controversy was required to be set at rest specially when there is yet another Suit bearing No.139 of 1988 in respect of the same dispute. The learned counsel for the applicants has submitted that there is no specific allegations against any of the applicants and that the initial resolution pertained to purchase of machinery from abroad which was subsequently abandoned in the light of the saving of public foreign exchange for the country. Consequently, local purchase was required to be made and all the purchase orders were issued under exercise of powers exclusively by the deceased Managing Director of the Karachi Shipyard and Engineering Works. He has invited my attention to the evidence which is proposed to be brought on record at the stage of trial and important pieces of evidence through P.Ws. Sibghatullah Hussaini, P.W. Muhammad Usman, P.W. Muhammad Shahnawaz and P.W. Hamid Waheed. Upon examining these statement under section 161, Cr.P.C. being evidence proposed to be brought on. record against the applicants, it has transpired that initially departmental action was proposed against five persons and the Rules of Karachi Shipyard and Engineering Works prescribing purchase-procedure in the light of Rules 8, 2 and 4, it is only the Managing Director of the Karachi Shipyard and Engineering Works Limited who is authorised to make purchases of goods over and above five lacs and therefore, the applicants in their individual capacity were neither empowered, nor authorised and such power was duly exercised by the deceased Managing Director. He has contended that at best it could be a case of procedural deviation which would not attract the criminal intent in terms of mens rea on part of the applicants. My attention has also been invited to the indent that had been certified to be in accordance with the purchase procedure. Further, the learned counsel has contended that the departmental enquiry was conducted against the applicants and all the applicants were exonerated from such departmental enquiry except one Zafaruddin Ahmed Zuberi who was punished with stoppage of his promotion. He now stands retired. Applicant Syed Khurshidul Hassan is stated to be on the death bed and all other applicants stand duly retired from their services. Procedural deviation has been canvassed before me not to warrant criminal proceedings against the applicants as no foul play was found against the present applicants which is apparently evident from the suit pending in which the present applicants were not joined as co-defendants. He has further contended that there is no incriminating evidence and the objective of section 561-A is aimed to foster justice and not to hinder justice and perpetuate irregularity. It is indeed a set of circumstances that scrutiny of statement under section 161, Cr.P.C. Ought not to be avoided while dealing with the quashment proceedings in exercise of powers under section 561, Cr.P.C. which is aimed to secure the ends of justice. The charge against the applicants is stated to be groundless and that the accused persons are not the public servants with reference to the nature of dispute being civil in its inception. Lastly, the learned counsel has contended that in the event this Court is not inclined to accept the submissions made, hereinabove, then by way of an alternate prayer, the proceedings may be stopped till such time the civil litigation between the parties on the same subject-matter is finally adjudicated in the light of the aforementioned issues determining the rights and obligations, if any, of the applicants. On the other hand, Mr. Mushir Alam, learned standing counsel, has disputed the submissions made by the learned counsel for the applicants and has submitted that the applicants are public servants and, therefore, could be tried as defined under section 2 of the Anti-Corruption Act as well as under section 21of P.P.C. The civil servant has been defined to include a person serving in an organization which is managed or controlled by the Federal Government. There is no cavil with the aspect that Karachi Shipyard and Engineering Works Limited is an Organization, managed and controlled by the Federal Government. He has further contended that the applicants have not resorted to the learned trial Court for seeking their acquittal, in the first instance, under section 249-A, Cr.P.C., and that the alternate remedy being available to the applicants no indulgence could be shown by this Court in exercise of the powers under section 561-A, Cr.P.C. I have carefully considered the submissions made before me by the learned counsel for the applicants as well as the learned standing counsel and it seems that patently the criminal prosecution is so intimately connected with the civil litigations pending in this Court specially in the light of issues framed by this Court which are likely to effect the right and the liability, if any, of the applicants and keeping in view the law laid down in SCMR 1982 page-988 (Abdul Haleem v. The State and others) wherein their Lordships have been pleased to hold that civil litigations in respect of dispute pending, the criminal proceedings should remain stay during the pendency of such civil litigations between the parties on the same subject-matter in order to avoid conflicting findings. With all the humility at my command, I would subscribe to the dictum, laid down by the Supreme Court of Pakistan as well as on an unreported Judgment in Criminal Appeal No.22-K of 1981 (Mirza Ferozuddin v. Manzoor Ahmed Khan and others) wherein their Lordships have been pleased to accept the appeal and had modified the order of the High Court whereby the proceedings of the criminal case pending before the Court of Special Judge Anti Corruption were stayed, so long as the civil litigation was pending between the urn parties. Their Lordships have been further pleased to observe that the Civil Judge before whom civil suits are pending be instructed to take suitable steps for disposal of the suits at the earliest and expediently. Such view having been taken by the Supreme Court of Pakistan coupled with the aspect that the present criminal miscellaneous applications have been pending since the year 1992 and 1995 respectively in this Court and in order to secure the ends of justice, suppress the mischief and to provide justice and equitable relief to the parties before me, I would direct that the criminal proceedings, being the alternate prayer of the applicants be stayed till final determination of civil litigations in Suits Nos.138 of 1988 and 139 of 1988 is achieved. Thereafter, it would be open to the prosecuting agency to take appropriate steps in accordance with law. This disposes of Criminal Miscellaneous Application Nos.411 of 1995 and 227 of 1992. H.B.T./Z-31/K???????????????????????????????????????????????????????????????????????????????????? Order accordingly.