P L D 1968 Supreme Court 281 (PLP)

HAMOODUR RAHMAN, J.‑This appeal by special leave arises out of the judgment and order of a learned Single Judge of the High Court of West Pakistan at Lahore, in a proceeding under section 561‑A of the Code of Criminal Procedure, filed by the second respondent herein, for the quashing of certain criminal proceedings pending against him and several other persons, under sections 411 and 379/147 of the Pakistan Penal Code, in the Court of a Section 30 Magistrate at Mianwali. This proceeding was started on a First Information Report, lodged on the 21st March 1962, by the present appellant for the alleged forcible and dishonest taking away of a motor bus No. SG. 555, by Iqbalur Rahman and 40 other persons of whom 16 were named in the First Information Report. In this case the challans were submitted by the police on the 29th March 1962. The trial commenced thereafter and up to the 7th March 1963, all but 3 of the prosecution witnesses had been examined. Then further witnesses were examined and on the 30th April 1963, arguments were heard regarding framing of charge. The case was thereafter fixed for orders on the 10th May 1963. On that day, however, no order was announced. The case was adjourned to the 16th May 1963. But again, even on this day, instead of announcing the order, the Trial Court decided to summon three more persons as Court witnesses for the 28th May 1963. The accused in the case thereupon, on the 24th May 1963, moved the High Court for the quashment of the proceedings. The High Court, on the 27th November 1963, refused to quash the proceedings but stayed them till the final decree in a Civil Suit between substantially the same principal parties, for the dissolution of a partnership and rendition of accounts was passed. Against this order the complainant, Muhammad Akbar came up to this Court and obtained leave to appeal. Leave was granted to consider "whether in view of the facts and circumstances or this case the learned Judge acted legally in staying further proceedings in the criminal case". Learned counsel, appearing in support of this appeal, has contended that the learned Judge of the High Court had not properly exercised his discretion in staying the proceedings because he had failed to notice that the prosecution had been started by the State and was not a prosecution on the basis of a private complaint. It is also contended that the learned Judge had erred in taking the view that the "vital questions requiring consideration in the criminal case were the same as those in the earlier Civil Suit." The history of the litigation, as can be gathered from the documents filed in this case, is as follows: On the 12th July 1954, a registered partnership firm was constituted by five persons, namely. Moulvi Muhammad Yasin Khan, Muhammad Yamin Khan, Haji Abdul Rahim, Mulla Abdul Karim and Haji Muhammad Yasin, for carrying on the business of running passenger buses on various routes, under the name and style of the Thal Transport S‑.rvice Company, with its headquarters at Kalurkot, Bhakkar, in the District of Mianwali. Moulvi Muhammad Yasin was appointed the Managing Partner of this firm and he was placed in full control of its business. its assets and properties and was also made responsible for maintaining its accounts. On the 28th December 1955, he took in a sixth partner, called Hakim Abdur Rashid and carried on the business for 2 or 3 years without any hitch with various motor buses, including the one in dispute in this case, namely, Bus No. S. G. 555, acquired and registered in the name of the firm. But, unfortunately, thereafter disputes and differences arose between the partners and on the 12th March 1958, Haji Muhammad Yasin and Mulla Abdul Karim, the father of the present appellant, filed a suit against the other four partners for the dissolution of the firm and rendition of accounts. This suit was decreed in preliminary form on the 30th May 1959 and a Commissioner was appointed to take accounts. An appeal against this preliminary decree failed before the District Judge, Mianwali on the 5th March 1960, and a second appeal in the High Court was dismissed on the 15th March 1961. The High Court, however, granted leave to appeal under the Letters Patent and stayed the passing of the final decree till the disposal of the Letters Patent Appeal, although the proceedings before the Commissioner were allowed to continue. After the appeal had been dismissed by the District Judge, there was, it appears, some talk of compromise and on the 3rd May 1960, the plaintiffs in that suit for dissolution of partnership filed a declaration before the Regional Transport Authority, Lahore, purporting to have been signed by three of the defendants in the suit, namely, Moulvi Muhammad Yasin Khan, Muhammad Yamin Khan and Haji Abdul Rahim, to the effect that they had gone out of the business and that the plaintiff's, namely, Haji Muhammad Yasin and Mulla Abdul Karim were to be the only partners in mat firm. This declaration also purported to say that they would have no objection to the route permits being transferred in the names of the remaining partners. On the basis of this declaration the route permits were got transferred and that register of firm was also got amended. Subsequently, however, Moulvi Muhammad Yasin repudiated this document; and alleged that it had been obtained fraudulently for the plaintiffs had in fact never executed the compromise. The declaration could not, therefore, be acted upon. He, accordingly, also took steps to have the order of the Regional Transport Authority and the Registrar of Firms corrected as also continued to retain control of the business of the firm. The plaintiffs then, finding that Haji Muhammad Yasin and his other co‑defendants were still obstructing them, filed a second suit, on the 25th March 1960, for a declaration of their right to carry on the business of the firm and for an injunction for restraining the others from in any way interfering with their business. In this suit Hakim Abdur Rashid was not joined as a party,, for, it was alleged that he had gone out of the firm on the 29th April 1960. In this suit an ex parte decree was obtained on the 24th September 1960, but Moulvi Muhammad Yasin and his. co‑partners, Haji Abdul Rahim and Muhammad Yamin have, it appears, filed an application under Order IX, rule 13 of the Code of Civil Procedure for having the ex parte decree set aside alleging that the decree was obtained by suppressing the summons.. This application is still pending. It is now conceded on behalf of the appellant that the motor bus concerned is still registered in the name of the firm but it is claimed that it was actually purchased by Mulla Abdul Karim for Rs. 6,500, on the 1st of February 1961. In support of this claim a receipt has also been filed (Vide page 207 of the record). During the pendency of these litigations Haji Muhammad Yasin, one of the plaintiffs in the suit for dissolution, withdrew from the suit on the 3rd March 1962, stating that he had given up his claim and that the suit, so far as he was concerned, be dismissed. From the above recital of facts it will appear that the suit for the dissolution of the partnership has not been finally disposed of as yet. Even the second suit for declaration and injunction is not concluded, for, no final adjudication has yet been made of the application for setting aside the ex parte decree. The motor bus, with respect to which the offence of theft is alleged to have been committed, is admittedly registered in the name of the partnership firm. It is clear, therefore, that the ownership of the vehicle is in serious dispute. Though the father of the, complainant claims that it was he who had purchased the vehicle yet the vehicle, it seeing, was treated as an asset of the partnership firm and was got registered in the name of the firm. Thus until its ownership is decided, it cannot be said that it had been wrongfully taken away from the possession of Mulla Abdul Karim. Now this question of ownership of the vehicle is itself sub judice. Its fate will depend upon the final decree in the suit for dissolution of partnership. If it is awarded to Mulla Abdul Karim then and only then will his ownership be established. It cannot, therefore, be said that the subject‑matter of the dispute in the criminal litigation is not dependent upon the decision in the civil litigation. If it is found to be an asset of the partnership then a managing co‑partner has the right to retain possession of it until the civil Court takes it away from him. By merely forcibly taking it away from the custody of another partner he cannot be said to have committed theft of it, for, such taking away would, in the circumstances, be in assertion of a bona fide claim of right. In these circumstances the question arises as to whether the learned Judge of the High Court had exercised his discretion rightly in staying the criminal proceedings until the question of title had itself been decided in the pending Civil litigation. Normally it is true, that criminal proceedings should not bet postponed pending the disposal of Civil litigation connected with the same subject‑matter. But where it is clear that the criminal liability is dependent upon the result of the Civil litigation or is so intimately connected with it that there is a danger of grave injustice being done in the case if there be a conflict of decision between the Civil Court and the Criminal Court. 1n such event ft is equally clear that the Criminal Court has not only 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 itself is in dispute, the Criminal Courts should give a finding in respect of the same question. This is not a case in which the criminal litigation is being stayed by an order of the Civil Court, but this‑is a case where the High Court, exercising its inherent criminal jurisdiction under section 561‑A of the Code of Criminal Procedure, has in the interests of justice ordered the stay of the criminal proceedings. It cannot be said that it had no jurisdiction to do so. There can be no doubt that the High Court has this power under section 561‑A, Cr. P. C. but the only question is as to whether it should exercise this power where civil proceedings in respect of the same or substantially the same subject‑matter are also pending. There is now consensus of opinion that there is no invariable rule that a criminal proceeding should be stayed pending the decision of the Civil suit but the matter is one of discretion entirely. In exercising this discretion the guiding principle should be to see as to whether the accused is likely to be prejudiced if the criminal proceeding is not stayed. In cases of disputed title where it is difficult to draw a line between a bona fide claim and the criminal action alleged, a stay can be made in the proper exercise of that discretion. The jurisdiction was, therefore, certainly there and upon the facts of this case, we are also fully satisfied that that jurisdiction had been exercised upon sound judicial considerations. We see no ground, therefore, to interfere with the order of the High Court. This appeal is accordingly dismissed. A. H. Appeal dismissed.