P L D 1964 (W (PLP)

I have gone through the plaint and order under section 12 of the Specific Relief Act, Suit No. 12/63. The criminal prosecution under section 420, P. P. C. lodged in this Court contains the versions which are different from each other. The principle under such circumstances is that unless the findings of the civil Court will dispose of the plaint which has arisen in criminal case, then the presiding Magistrate will not exercise his discre tion in favour of adjournment of the proceedings pending before him for the purpose of enabling him, to have the benefit of the finding of the Civil Suit. To this, there are rulings A I R 1933 Sind 358, A I R 1933 Sind 10 and A I R 1945 Sind

32. I, therefore, held that stay of the criminal prosecution is not called for. I, therefore, dismiss the application."

3. Mr. Azizullah Sheikh for the applicant has pressed this application on the ground that the matter for revision in the civil suit as well as in the criminal case is substantially the same, namely, whether the landed property shown in the plaint and in the complaint has been sold by Rafiullah to respondent No. 2, Mithal Shah. He has sought support of an unreported judgment of Bachal, J. in Criminal Miscellaneous Application No. 176 of 1956, Nazrnuddin and others v. Jamiabai where it was observed that where the matter in dispute between the parties was of a complicated nature for the decision of which the civil Court should be preferred as particularly qualified, and not a criminal Court. Further that the complaint in that case was filed with the motive of hampering the conduct of the civil proceedings, and that the decision in the civil suit would be of value in arriving at the truth in the criminal case, as the disputes relate to the same documents, and the criminal case arises directly out of the proceedings in the civil suit, the issues in the criminal case being likely to be included in the issues in the civil suit, which were capable of being decided more properly in a civil suit. The proceedings in that case, were therefore stayed. Mr. Azizullah also relied on a judgment of my learned brother, Anwarul Haq, J. in Criminal Revision Application No. 452 of 1961, where the proceedings in the criminal Court were stayed on the same grounds as in the Criminal Revision Application No. 176 of 1956, earlier referred to. In the latter case. Criminal Revision Applica tion No. 452 of 1961), the applicant Muhammad Hussain had been advanced a loan. In return the respondent there Yusuf Ali had executed a post dated cheque which when presented, was dishonoured by the bank. Mr. Azizullah has also sought reliance on Dhirendra Chandra Chakravartl v. Nani Gopal Chakravarti (P L D 1962 Dacca 11), a judgment of a Single Judge, observing that though no invariable rule can be laid down, it is ordinarily undesirable to institute criminal proceedings until the determination of civil proceedings in which the same issues are involved. A case in which the criminal liability of the accused could be established regardless of the result of the civil suit, stay of the criminal proceedings would be declined. But, where, the decision in the civil suit is likely to have a direct and vital bearing upon the alleged guilt or otherwise of the accused in the criminal case, or render his prosecution, for all practical purposes, infructuous, the proper course is to keep the criminal case stayed. In the course of this judgment reference was made to the case of J. M. Lucas v. O. A. (A I R 1920 Cal. 624) where it was observed that :‑ Though no invariable rule can be laid down, it is ordinarily undesirable to institute criminal proceedings until the determina tion of civil proceedings in which the same issues are involved. Criminal proceedings lends themselves to the unscrupulous application of improper pressure with a view to influencing the course of the civil proceeding, and beyond that there is the mischief of criminal proceedings being instituted with an imperfect appreciation of the facts where they have not been ascertained in the more searching investigation of a civil Court. Reference was also made to the case of 3rikisson Beriwalla and another v. Emperor (37 Cr L J 187) where it was held that :‑ Where the issues in a criminal case are likely to be included in the issues in civil Court which is ripe for hearing, and there is a risk of a conflict of jurisdiction, it is better that the criminal proceedings are stayed.

4. It must be stated that apart from the only ground that the matter in the civil suit and in the criminal complaint between the parties is substantially the same and the statement made by Mr. Azizullah for the applicant at the Bar that the defence of the applicant will be that the respondent No. 2 and not applicant was responsible for the breach of the contract, there is nothing to indicate on paper otherwise what in fact is defence of the applicant in the civil suit will be or is likely to be, specially in the face of the averment made in para 12 of the plaint that defendant No. 2, namely, Amir Hamzo Shah was harassing Mithal Shah, respondent No. 2 (.sic.) and his heirs, indicating that he disputed the title and possession of respondent No. 2, and the statement in para. 11 of the complaint that this Amir Hamzo Shah bad declared that the present applicant Rahullah had sold the lands in dispute to him, and had started issuing threats, the presumption being that the additional allegation against the applicant would also be that he had sold the same land to two different parties with a dishonest intention. The learned Magistrate in the impugned order has referred to the circumstances under which the principle must be adhered to of staying proceedings in a criminal Court upon the conclusion that the finding of the civil Court will dispose of the complaint in the criminal Court. He referred to A I R 1933 Sind 358, A I R 1943 Sind 10 and A I R 1945 Sind 32, in consequence of which the prayer for the stay of the criminal proceedings was refused. In my view, however, the ruling bearing on the point is A I R 1945 Sind 32, which in turn recalled A I R 1933 Sind 358, and observed the two pointed decided in it, namely, "That a criminal Court has no power after it is seized of a case to stay proceedings indefinitely, and that the proper course is to postpone the case, not without a day, but for fixed and definite periods and (2) that where a declaration sought for in P. civil Court would not in itself dispose of each and every one of the questions which will require attention of the criminal Courts, it is undesirable that a complaint should remain undisposed of till the civil Court's decision". In this judgment Thadani, J. also commented on the principle laid Gown by Ferrers and Rupchand, J. C's in the following terms :‑ "It is of the utmost importance that criminal cases should be brought to a speedy termination." Since the decision of Ferrers J. C. in Sind Law Report 219 and A I R 1933 Sind 358, this Court has in I L R 1942 Kar. 193 and A I R 1943 Sind 10, held that it is not expedient that criminal proceedings should be adjourned until the decision of a pending civil suit. In deciding the application before them, lobo and Thadani, JJ. observed that they had not overlooked the possibility that in a given case there may be a decision of a civil Court in variance with that of a criminal Court and vice versa which conflict is unavoidable. The relevant sections of the Evidence Act relate to the admissibility of the judgment and do not hamper a criminal Court to treat as res judicata the finding of a civil Court on a given point. Only judgments in rem as defined in section 41 of the Evidence Act have a binding effect fn criminal Courts. They further observed :‑‑ We think that the principle laid down in 27 S L R 219= A I R 1933 Sind 358, is the correct principle for their guidance. The principle is that unless the finding of a civil Court will dis pose of the point which has Prism in a criminal case, tae presiding Magistrate will not exercise his discretion in favour of an adjournment of the proceedings pending before him for the purpose of enabling him to have the benefit of the finding of the civil Court. It will be seen, therefore, that in A I R 1945 Sind 32, and P L D 1962 Dacca 11, it was considered essential that the decision in a civil suit was likely to have a direct and vital bearing upon the alleged guilt or otherwise of an accused in a criminal case, and render his prosecution for all practical purposes infructuous, and A for this reason the proper course was to stay the proceedings in the criminal Court, and that the finding in the civil suit would dispose of the one and the only point which had arisen in the criminal case.

5. That being so, the only ground upon which the present application is urged is that the matter in the civil Court as well as in the criminal Court is substantially the same. Applying the principles of the rulings earlier referred to upon which criminal proceedings between the parties should be ordinarily stayed, when a civil suit has already been instituted in respect of the same transaction, I am of the view that the principles or the grounds are not the same and cannot be applied to the present case. The outstanding feature is that at no stage has the applicant set downs in writing either in the civil suit or even in his present application made under sections 435, 439 and 561, what his defence precisely is, or is likely to be apart from the oral statement made at the Bar that the defence will be that respondent No. 2 Mithal Shah, was responsible for the breach of the contract of sale: I am also B of the view that even accepting the plea of the applicant that the defence will be what he now alleges it to be, that by itself will no have a direct or vital bearing upon the alleged guilt or otherwise of the present applicant. Nor indeed can it be said that a finding on this one point, namely, who was responsible for the breach of the contract will dispose of the poinr3 which are likely to arise in the criminal case. In the criminal Court, the conduct of the applicant will have to be judged in the light of the transactions effected by him. I am also of the view, in keeping with A I R 1945 Sind 32, that it is of the utmost importance that the criminal proceedings are brought to a speedy termination.

6. In these circumstances the order of the learned Resident Magistrate on facts also as they were before him at the time, appears to be the correct order. I, therefore, disallow this revision application, and refuse to extend stay of the proceedings in the criminal case pending before the Court of the learned Resident Magistrate, Dadu, and order that the stay previously granted be discharged and that the matter should proceed and be terminated within the next three months. K. B. A. Petition dismissed.