2007 PLP 2795 (YLR)

AMIR HANI MUSLIM, J.--Through this Criminal Revision Application the Applicant has impugned the order, dated 3-10-2006 whereby the Vth Civil Judge and Judicial Magistrate, Karachi (South), had altered the charge by introducing section 467, P.P.C. and referred the matter to the Sessions Judge for trial as the offence under section 467, P.P.C. was triable by the Court of Session. The facts of the case are that initially respondent No.2 lodged F.I.R. No.286 of 2004 under sections, 420, 468 and 471, P.P.C. with P.S. Boat Basin, Karachi, against the applicant and respondents Nos. 3 and

4. The applicant applied for bail before arrest which was denied to him upto the apex Court. Thereafter the applicant was granted bail by the VII Judicial Magistrate, Karachi (South) upon which the Complainant made transfer application before the learned Sessions Judge showing his reservations against the learned Judicial Magistrate. The Transfer ' Application was allowed and the matter was transferred to V Judicial Magistrate, Karachi (South) who by impugned order has sent the case to the Sessions Judge, inter alia, on the ground that the material placed before him required the accused persons to be charged under section 467, P.P.0 as well. Since section 467, P.P.C. was triable by the Sessions Court, the matter was referred to the Sessions Judge, who has assigned it to 1st Additional Sessions Judge, Karachi (South). The grievance of the applicant is that the learned Judicial Magistrate did not have powers to alter the charge without notice to the accused persons and secondly that suit No.1144 of 2004 has also been filed by the complainant in this Court against the applicant in which cancellation of documents alleged to have been forged by the applicant has been sought, therefore, during pendency of civil suit the criminal proceedings initiated by the complainant on the same issue should be stayed. I have heard the learned counsel and have perused the record. Under the Criminal Procedure Code the trial Court can always alter the charge at any point of time 'either on an application or on its own, therefore, the grievance of the learned counsel for the applicant that the trial Court cannot alter the charge by introducing section 467, P.P.C. was without substance. A If the trial Court is of the opinion that the material placed before it was sufficient to alter the charge, the trial Court can pass such an order and no notice of any nature in the given case is required. However, in the present proceedings no prosecution witness has been examined, therefore, no prejudice has been caused either to the applicant and or to any other co-accused if the charge is altered by the Magistrate. However, it will be open ,to the applicant and or any other co-accused to object to the charge at appropriate time before the learned 1st Additional Sessions Judge, where the matter is pending adjudication. As far as stay of the criminal proceedings is concerned, usually when issues in the civil proceedings are common to that of criminal case and are between the same parties, the criminal trial is stayed. However, in the present case it has been submitted that the complainant is an old lady of 67 years and is a heart patient whereas her husband material prosecution witness, Muhammad Afzal Khan, has undergone bypass surgery five times and is also 69 years old. The learned counsel for the complainant submits that evidence of these witnesses is material, therefore, their evidence be recorded at an early date as they are ailing. This request of the learned counsel for the complainant appears to be reasonable, I, therefore, direct the trial Court to immediately frame charge as the challan has been submitted and record evidence of Mst. Surriya Afzal, complainant, and her husband, Muhammad Afzal Khan where after the criminal proceedings will be stayed till decision of suit No. 1144 of 2004, pending in this Court. The parties may also approach this Court in suit No.1144 of 2004 for expeditious disposal of the suit, if so advised. This Criminal Revision Application along with the listed application stands disposed of in above terms. H.B.T./S-56/K???????????????????????????????????????????????????????????????????????? Order accordingly.