2011 PLP 437 (YLR)

SARDAR SHAUKAT HAYAT, J.

Impugned herein is the order dated 10-2-2009 of learned Additional District Judge, Takht Bhai whereby the revision petition filed by petitioners was dismissed and maintained the order dated 25-10-2008 of learned Judicial Magistrate, Takht Bhai.

2. Facts of the case are that the petitioners filed a private complaint against the respondents 2 to 6 alleging therein that they are members of the committee of Masjid Jangay, Peelakhel Lund Khwar and predecessor of the petitioners have declared the masjid as waqf and in order to meet the expenses thereof, the committee members have given landed property of 31 kanals and 8 marlas on lease to one Naeem Shah (predecessor respondents 2 to 6). After the death of Naeem Shah, respondents 2 to 6 cultivated the same landed property and used to pay the lease. After some time, respondents 2 to 6 fraudulently transferred the possession of disputed landed property to one Saadullah and Sabz Ali and in lieu thereof transferred 8 kanal of land in their favour, therefore, they misappropriated the property in dispute, thus they are required to be punished in accordance with law. Respondents 2 to 6 were summoned by learned trial Court, who on their appearance contested the complaint on the ground that regarding the same subject-matter, the petitioners have filed a civil suit for declaration and possession, whereby the respondents 2 to 6 have been arrayed as defendants and as against the same subject-matter civil litigation is still pending for determination of title, therefore, proceedings in the instant complaint be stayed till final decision of the civil case. The learned trial Court vide impugned order dated 25-10-2008 stayed the instant criminal complaint till final decision of the civil dispute. Aggrieved therefrom, the petitioners filed revision petition before the revisional forum, which was dismissed by learned Additional District Judge-II, Takht Bhai vide order dated 10-2-2009, hence the instant quashment petition.

3. Learned counsel for petitioners contended that there is no bar for simultaneous proceedings against the respondents regarding the matter in dispute in the civil court as well as before the criminal court. That suit filed in the civil court by the petitioners is with regard to declaration, possession and perpetual injunction and that the decision of the civil court will have no bearing on the instant complaint.

4. On the other hand, learned counsel for respondents Nos. 2 to 6 argued that in the civil court petitioners have challenged the impugned mutation and unless the civil matter is not finally decided against the respondents Nos.2 to 6, they cannot be punished as asked for in the complaint.

5. The learned A.A.-G. also supported the impugned judgments. Arguments heard. Available record perused.

6. From perusal of record, it reveals that petitioners claim to have dedicated the suit property measuring 31 kanals, 8 marlas being shamilat deh as waqf/seri for mosque Jangay Peela Khel Lund Khwar, which remained the same till jamabandi for the year, 1980/1981. After some time, respondents Nos. 2 to 6 in collusion with Revenue officials fraudulently transferred the possession of suit property to some other persons (not arrayed as respondents in the complaint) and also transferred 8 kanals in their favour through Mutation Nos.2379 and 2380. The petitioners filed a civil suit for declaration, possession and permanent injunction against respondents Nos. 2 to 6 including some other persons for cancellation of impugned mutations and correction in the Revenue Record. The petitioners in the instant complaint have prayed for punishment to respondents Nos. 2 to 6 for fraudulently and illegally transferring the suit property in their favour, which is also the bone of contention in the civil suit between the same parties. Normally criminal proceedings should not be postponed pending the disposal of civil litigation with the same subject-matter but where it is clear that the criminal liability is dependent upon the result of the civil litigation and is so intimately connected with it, that there is a danger of grave injustice being done in case if there be a conflict of decision between the civil court and the criminal court then in such event it is equally clear that the criminal court not only has the right to but should also stay its hands until the civil litigation is disposed of, for, it is not desirable that when the title to the property is itself in dispute, the criminal courts should give a finding in respect of the same question. Thus by placing reliance on the judgments of apex court titled Abdul Ahad v. Amjad Ali reported through PLD 2006 SC 771 and Muhammad Akbar v. The State (PLD 1968 SC 281), I am of the opinion that there exists no illegality in the orders of both the courts below by adjourning sine die the private complaint in hand till the disposal of the civil litigation regarding the suit property pending between the parties. Hence the instant quashment petition is dismissed. H. B.T./393/P Petition dismissed.