2013 P Cr (PLP)

SHAH JEHAN KHAN AKHUNDZADA, J.

Mst. Kausar Zafarullah and her sister Mst. Asmat Jehan Ara, petitioners by filing this Criminal Revision Petition under section 439, Cr.P.C. read with section 561-A, Cr.P.C., seek setting aside/quashing the order dated 13-7-2011 passed by the learned Special Judge Anti-Corruption Khyber Pakhtunkhwa (Provincial), Peshawar, whereby he stayed the proceedings pending before him in case F.I.R. No. 13 dated 26-9-2007 under sections 419/420/465/468 and 471, P.P.C. read with section 5(2) Prevention of Corruption Act registered at Police Station Anti-Corruption, Peshawar.

2. Briefly the facts given rise to the instant petition are that two properties situated at Bannu and Abbottabad were owned by Niamatullah Khan father of the petitioners who gifted the same to his son namely, Suleman Khan vide registered Deeds Nos.472 and 1031 dated 21-6-1989 and 25-6-1989 respectively. Later on, the said Suleman Khan executed a registered power of attorney in favour of his father, who then executed a registered special power of attorney dated 7-3-1991 and 16-3-1991 in favour of one Mattaa Muhammad and on the basis of the above power of attorney the said Mattaa Muhammad sold out the properties to Mst. Shagufta Shaheen wife of Abdul Qayum through registered deeds in the year 1991. It is pertinent to mention here that the Niamat Ullah father of the petitioners died in the year 1993 while Suleman Khan the brother of the petitioners died in the year, 2002.

3. In the year, 2005-06 the petitioners filed civil suit alleging fraud in attestation of general power of attorney by the donee in favour of donor. Along with in the said suit they also prayed for temporary injunction and after rejection of their application for temporary injunction in one of the suits, they approached the Anti -Corruption Authorities for taking action against the respondents on similar grounds which were taken in the civil suits. Subsequently, a criminal case under the above section of law was registered against the respondents and their co-accused.

4. During the trial before the Anti-Corruption Court, the respondents submitted an application under section 249-A read with section 265-K, Cr.P.C. for their acquittal during the trial and after hearing the arguments of the learned counsel for the parties, the learned Special Judge, Anti-Corruption vide his order dated 13-7-2011 instead of acquitting the accused-respondents, stayed the criminal proceedings till adjudication of civil suits in respect of on the same subject-matter.

5. I have heard the learned counsel for the parties and perused the record.

6. At the very outset learned counsel for the respondents raised a preliminary objection on the maintainability of the criminal revision before this Court on the ground that no private person can file the revision against the order passed by the Special Judge, Anti-Corruption and only the Public Prosecution is authorized to do so. He referred to section 10 of The Pakistan Criminal Law Amendment Act, 1958, which reads as under:-

10. Appeal, revision and transfer of cases.

(1) An appeal from the judgment of a Special Judge shall lie to the highest Court having appellate jurisdiction in the territorial limits in which the offence is tried by the Special Judge, and the same Court shall also have powers of revision. (2) Notwithstanding the provisions of section 417 of the Code of Criminal Procedure, 1898, in any case tried by a Special Judge appointed by the Central Government under section 3, in which such Special Judge has passed an order of acquittal, the Central Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid.......".

7. However, perusal of the above Criminal Law Amendment Act, 1958 shows/indicates that the Central Government is authorised to direct the Public Prosecutor to present appeal/revision but in the instant case the Special Court Anti-Corruption which passed the impugned order is under the control of the Provincial Government, therefore, the above objection is overruled.

8. The question requiring determination is, whether an offence committed by any accused who was challaned before the Court of competent jurisdiction, after investigation, could be stayed or postponed, on account of mere filing a civil suit. It may be mentioned here that an offence committed by any accused person has to be tried and decided in accordance with law on the strength of the evidence produced before the said Court unless the nature of the case may depend upon the decision of the civil suit in which the same matter in issue is pending adjudication. In the present case, cognizable offences were allegedly committed by the accused-respondents, for which trial was in progress, when the learned Special Judge, Anti-Corruption stayed the proceedings till the decision of the civil suit. Although the civil liability is independent of the criminal liability and no invariable rule exists to the effect that pending decision of the civil suit, criminal proceedings must be stayed as it is a purely matter of discretion yet, while exercising the discretion, the guiding principle should be to see as to whether the accused is likely to be prejudiced if criminal proceedings are not stayed and when it is clear from gist of materials available on record that the criminal liability is dependent on the outcome of civil litigation regarding the matter in issue, then the criminal proceedings must be stayed, particularly when dispute is with regard to the title of the property. Normally, criminal proceedings should not be postponed pending decision of a civil litigation connected with the same subject-matter but where it is clear that the criminal liability is dependent on the result of the civil litigation or is so prima facie connected with it which gives rise to serious danger of grave injustice being done in the case. In that eventuality safe administration of justice require that criminal court should stay proceedings of criminal case before him until the civil litigation is disposed of, because it would be unjustifiable, undesirable for criminal courts to give findings in respect of the same question when determination of the same question, matter in issue is still sub judice before a civil court.

9. In the instant case, the petitioners have already instituted civil suits alleging fraud in attestation of general power of attorney by their father and the matter is still sub judice before the Civil Court. Therefore, the learned Special Judge, Anti-Corruption has rightly stayed the criminal proceedings pending before him till the decision of the civil suits instituted by the petitioners which order calls for no interference by this Court in its revisional jurisdiction. Reliance is placed on Akhlaq Hussain Kayani v. Zafar Iqbal Kayani and others (2010 SCMR 1835).

10. Resultantly, this criminal revision petition is dismissed. MH/333/P Revision dismissed.