2017 PLP 1453 (YLR)

QAZI MUHAMMAD AMIN AHMED, J.

The petitioner is confronting indictment before a learned Magistrate at Vehari under section 489-F of the Pakistan Penal Code, 1860 vide FIR No. 508 dated 22.12.2014 registered at Police Station City Vehari for his default in fulfilment of a financial obligation, arisen out of a sale transaction, as cheques given by him therefor, bounced upon presentation on 25.11.2013; he came up with a civil suit seeking cancellation of impugned bank cheques, instituted on 29.3.2014 in a Civil Court at Vehari. The learned trial Magistrate declined petitioner's request to hold the trial in abeyance till decision of civil suit vide order dated 28.4.2016; challenged in revisional jurisdiction, met with no better fate on 5.10.2016; vires of both the orders are being assailed through this Constitutional petition.

2. Learned counsel for the petitioner contends that fate of criminal prosecution is inexorably linked with the outcome of civil suit instituted by the petitioner and as such, it would be expedient to adjourn the criminal case sine die. In order to qualify his point, learned counsel has relied upon the cases of Abdul Ahad v. Amjad Ali and others (PLD 2006 SC 771) Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others (2010 SCMR 1835) to argue that the Courts below erred in declining petitioner's request so as to await the final outcome of the suit.

3. Heard.

4. It is by now well settled that criminal and civil pursuits can proceed side by side, however, there may be cases where criminal indictment is indissolubly intertwined with the justiciability of a cause of action in civil jurisdiction or where assumption of jurisdiction or cognizability of the offence is dependent upon a complaint/sanction by some civil or revenue court and those would certainly be the situations where outcome of the latter may be awaited in order to avoid a diametrical inter-se or inherent conflict, however, this principle cannot be applied in every run of the mill criminal case in an omnibus manner where a civil suit is conveniently instituted as a subterfuge, calculated to subvert criminal prosecution as a dilatory tactics. In criminal dispensation an accused faces prosecution under the protection of presumptive innocence and it is for the prosecution to bring home charge against him beyond reasonable doubt on the strength of evidence, put to him at the close of trial with an option to himself appear as a witness in disproof of the charge and this is an addition to adduce evidence in defence, and this enables him to effectively and meaningfully confront prosecution with his point of view without being embarrassed, handicapped or prejudiced as the Court can juxtapose his plea with the prosecution evidence and undertake verifications thereof if it so warranted. The same view has been taken by the Hon'ble Supreme Court of Pakistan in the case of Malik Khuda Bakhsh v. The State (1995 SCMR 1621) being followed with profound reverence. Cases relied upon by the learned counsel, being based upon facts vastly distinguishable from those of the present case are of not much assistance to the petitioner. In the case of Abdul Ahad, the accused was being prosecuted under Sections 419, 420, 468, 471, 109, 34 of the Pakistan Penal Code, 1860 and proceedings thereof were stayed on the ground that in respect of the same issue a civil suit instituted at an earlier point of time was still in progress; though the Hon'ble Supreme Court declined to interfere with the injunctive order, however, held as under:- "There is now consensus of opinion that there is no invariable rule that a criminal proceeding should be stayed pending the decision of civil suit but the matter is one of discretion entirely. While exercising discretion the guiding principle should be to see as to whether the accused is likely to be prejudiced if the criminal proceedings are not stayed in case of dispute regarding title where it is difficult to draw a line between a bona fide claim and the criminal action. All the Courts below had exercised discretion in favour of the respondent keeping in view the guiding principles laid down by the superior Courts. See Muhammad Akbar v. The State PLD 1968 SC 281; Sheikh Ahmad v. Sheikh Muhammad Younis 1971 PCr.LJ 331 and Mansharam Madhavadas v. Chetanram Rupchand and others AIR 1945 Sindh 32." Similarly in the case of Akhlaq Hussain Kayani, the accusation involved offences under Sections 417, 418, 420, 465, 466, 467, 468, 471 and 474 of the Code ibid; it related to transfer of ownership of a motor vehicle. In the present case, Zulfiqar Ali, complainant alleged that the petitioner owed a sum of Rs. 400,000/- on account of purchase of cotton crop and handed him over two bank cheques, both dishonored upon presentation. The incident is dated 25.11.2013, though reported on 22.12.2014 whereas the civil suit was instituted on 29.03.2014 wherein the petitioner admitted delivery of two duly signed bank cheques albeit with a different story.

5. For the above reasons, the view taken by the Courts below being unexceptionable does not call for any interference. Even otherwise, a Constitutional petition against the judicial rendition in exercise of revisional powers by a Court of Session is not maintainable. Dismissed in limine. JK/J-6/L Petition dismissed.