2008 PLP 1592 (MLD)

MAZHAR HUSSAIN MINHAS, J.

Through this constitutional petition, the petitioner has assailed the order, dated 13-10-2004 passed by Muhammad Ibrahim Asghar, learned Additional Sessions Judge, Muzaffargarh, whereby the order, dated 8-11-2003 passed by Muhammad Waseem Anjum, learned Judicial Magistrate, Muzaffargarh has been set aside and the case has been remanded for trial.

2. Precisely the facts relevant for disposal of this writ petition are that Ashiq Hussain respondent No.3 got registered case F.I.R. No.333, dated 29-11-1997 under sections 380/440/342/148/149, P.P.C. at Police Station Rohillanwali, against the petitioner and nineteen others with the allegation that on the night between 25/26-11-1997 the accused armed with deadly weapons trespassed into his field and damaged the crops by ploughing the land with tractors and also took away 30 bags of DAP Fertilizer and 6 bags of wheat. During investigation, the complainant's version regarding theft of Fertilizer and wheat could not be substantiated as a result of which offence under section 380, P.P.C. was deleted and report under section 173, Cr.P.C. against the accused for commission of remaining offences was submitted before the learned Illaqa Magistrate. After the submission of challan, the accused moved an application under section 249-A, Cr.P.C. seeking their acquittal which was not allowed, however vide order, dated 8-11-2003 the case was adjourned sine die till the decision of civil litigation pending between the parties. Feeling aggrieved with the order passed by learned Judicial Magistrate, respondent No.3 filed criminal revision, which was accepted by learned Additional Sessions Judge, Muzaffargarh vide impugned order and learned Judicial Magistrate was directed to proceed with the trial. Aggrieved of the impugned order passed by learned Additional Sessions Judge, the petitioner/accused has filed the instant writ petition.

3. Arguments of learned counsel for the petitioner, learned counsel for respondent No.3 and learned Assistant Advocate-General have been heard and record perused.

4. Learned counsel for the petitioner contends that the land comprised in Khata No.101 situated in the revenue estate of Langrial, District Muzaffargarh is owned by the petitioner. In year, 1979, one Munir Langrial with the help of his brother Muhammad Shabbir Langrial, Advocate practicing at Ali Pur forged an agreement to sell and filed a civil suit for specific performance against Pir Bukhsh, grant-father of the petitioner. The suit was dismissed on 13-2-1995. However, it was remanded for trial by the learned appellate Court after framing an additional issue regarding the dispute of possession. According to' learned counsel on 22-11-1997, on coming to known about planning of aforesaid Munir Langrial to dispossess him from the disputed land, the petitioner filed a suit for permanent injunction. However, Munir Langrial, etc., got registered case F.I.R. No.329, dated 27-11-1997 under sections 426/47/34, P.P.C. against the petitioner and others. Through the influence of said Munir Langrial, case F.I.R. No.333 of 1997 was also got registered by respondent No.3 with mala fide against the petitioner and his whole family. Learned counsel further submits that since the civil litigation pending between the parties is going on in which question of possession is yet to be determined through evidence, therefore, proceedings in the criminal case were rightly stayed by the learned Judicial Magistrate and the impugned order passed by revisional Court is not sustainable in law. In support of his contention, learned counsel has placed reliance on "Sheraz Ahmad and others v. Fayyaz-ud-Din and others (2005 SCMR 1599). Perusal of this judgment shows that proceedings in the criminal case were stayed pending disposal of the civil dispute with the occurrence of the parties, and it has not been held that during the pendency of a civil suit, criminal case cannot proceed. Therefore, this judgment is of no avail to the petitioner.

5. Conversely, learned counsel for respondent No.3 and learned Assistant Advocate-General have controveted the contentions raised by learned counsel for the petitioner and have supported the impugned order passed by learned Additional Sessions Judge. It has been contended that civil and criminal proceedings are of distinct nature and a criminal case is to be decided on its own merits independent of findings in the civil suit. In support of his contention, learned counsel for respondent No.3 .has placed reliance on "M. Aslam Zaheer v. Ch. Shah Muhammad and another" (2003 SCMR 1691) and "Malik Khuda Bukhsh v. The State" (1995 SCMR 1621). In the former judgment, it has been held by the Hon'ble Supreme Court of Pakistan that criminal liability was always distinct and different from civil liability between the parties and the complainant who had initiated the criminal action was to prove the accusation against the accused respondents for producing evidence which, of course, could be recorded at the stage of trial' by the Court. In the later judgment, the Hon'ble Apex Court has observed that trial Court itself was competent to look into the genuineness of the document either by comparing the signatures of the accused with the signatures on the receipt or sending the same for Expert's opinion and that it was for the trial Court to determine the question of the guilt or innocence of the accused upon ocular and documentary evidence produced before it. It has been further observed that Civil Court's judgment could not be admissible in a criminal proceeding to establish the truth of the facts upon which it was rendered. The ratio decidendi of these judgments is that proceedings in a criminal case cannot be stayed till the final decision of a civil suit and both cases are to be decided independently on the basis of evidence produced by the parties and the accused may tender their documentary evidence in their defence which may be considered by the learned trial Court. During the course of arguments, learned counsel for the petitioner has referred to certain documents to show his ownership and possession over the disputed property. He may tender these documents before the learned trial Court in his defence.

6. Perusal of order passed by learned Judicial Magistrate shows that the application under section 249-A, Cr.P.C. has not been decided on merits and the case has been adjourned sine die to await the result of civil litigation pending between the parties and the application is still pending there. Learned Additional Sessions Judge has not attended to this aspect and has not directed the learned trial Court to dispose of that application. Hence, the learned trial Court is directed to decide the petitioner's application under section 249-A, Cr.P.C., before proceedings with the trial of the case. The documents produced by the petitioner, if any, shall also be taken into consideration to reach a just conclusion for disposal of the application.

7. With these observations, the writ petition is dismissed. Copy of the order be sent to learned trial Court for information and compliance. H.B.T./K-33/L???????????????????????????????????????????????????????????????????????? Order accordingly.