P L D 2012 Lahore 150 (PLP)

MUHAMMAD ANWAARUL HAQ, J.

Through this petition under section 439, Cr.P.C, the petitioner has called in question the order dated 30-6-2007 through which the application filed by respondents Nos.1 to 5 for staying proceedings of trial in case F.I.R. No. 184 registered at Police Station Naseerabad, Lahore on 7-3-2005 in respect of offences under sections 420/468/471, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 was accepted by the learned trial court and proceedings in the trial were stayed. The petitioner has also challenged the validity of order dated 17-1-2010 passed by the learned trial court through which it has dismissed the application for recalling his earlier order dated 30-6-2007.

2. The learned counsel for the petitioner contends that there was no justification with the learned trial court to stay the criminal proceedings when both the proceedings being independent can proceed side by side and the judgment of the civil court is not relevant in criminal case inasmuch as both the proceedings have different parameters for the purpose of appreciation of evidence. The citation relied upon by the learned trial court does not apply to the facts and circumstances of this case. Learned counsel placed reliance on the cases of Malik Khuda Bakhsh v. The State (1995 SCMR 1621, Abdul Qadir Khan Mamdot v. Regional Police Officer, Multan and 5 others 2011 MLD 1773, Seema Fareed and others v. The State and another (2008 SCMR 839), Aftab Din v. S.H.O., Anti-Corruption (Establishment), Mianwali and another (2007 YLR 236), Haji Sardar Khalid Saleem v. Muhamamd Ashraf and others (2006 SCMR 1192), M. Aslam Zaheer v. Ch. Shah Muhammad and another (2003 SCMR 1691) and Sajjad Hussain v. The State (PLD 1997 Karachi 165). The learned counsel while referring the case of Malik Khuda Bakhsh v. The State (1995 SCMR 1621) states that in this case Hon'ble Supreme Court has not approved the dictum laid down in PLD 1968 SC 281.

3. On the other hand both the learned counsel for respondents Nos.1 to 5 unanimously contend that it was none else but the petitioner who himself executed General Power-of-Attorney in favour of respondent No. 2 in respect of the disputed shop. Respondent No. 1 has become owner of the shop after paying sale consideration and fulfilling all the legal formalities required by the revenue department in transferring of property. For the first time the petitioner has initiated civil proceedings against the respondents in the year 2003 in shape of filing suit for permanent injunction which proceedings were ultimately transformed into suit for declaration with consequential relief and possession in the year 2005. Admittedly civil proceedings are still pending but instead of taking decision from a civil court the petitioner manoeuvred to set criminal law into motion by registering above mentioned criminal case against the respondents which action is totally unjustified. Both the learned counsel placed reliance on the cases of Muhammad Akbar v. The State and another (PLD 1968 SC 281), Abdul Haleem v. The State and others (1982 SCMR 988), A. Habib Ahmad v. M.K.G. Scott Christian and 5 others PLD 1992 SC

353. The learned Law Officer has, however, argued in favour of continuing the proceedings in the trial and requested for setting aside the impugned orders dated 30-6-2007 and 17-1-2010 passed by the learned trial court in this case.

4. Heard. Record perused. 5.After hearing the learned counsel for the parties and going through the documents appended with this revision petition as well as the case-law on the subject with due care and caution I have noticed that it was the petitioner himself who initiated civil proceedings in the year 2003 by filing suit for permanent injunction wherein respondent No.1 joined the same by filing application under Order I, Rule 10, C.P.C. Record reflects that the petitioner thereafter got registered this criminal case on 7-3-2005 and during the criminal proceedings he opted to file a fresh suit on 10-10-2005 against the respondents with the following prayer:-- "It is, therefore, most respectfully prayed that a decree for possession respecting shop No. 3 constructed on plot Nos.217, 218/2 Block-G, Phase-III, Government Employees Cooperative Housing Society, Lahore, by declaring the sale deed and power of attorney referred to above as forged, fabricated, fictitious and unlawful, may kindly be passed in favour of plaintiff and against the defendants with costs."

6. Respondents then filed Criminal Miscellaneous No.12-Q of 2007 for quashing of proceedings in the F.I.R. but on 27-3-2007 the same was disposed of with the observation that respondents could move an application for stay of criminal proceedings before the learned trial court. The respondents thereafter filed the application for stay of proceedings and the same was allowed vide impugned order dated 30-6-2007 with the following observations:- "

6. Undoubtedly the discretion is never meant to be exercised arbitrarily, freakishly and capriciously but keeping in view the set of circumstances of this particular case, this Court feels that there is a strong likelihood of contrary judgments of Civil Court and Criminal Courts, if both the proceedings are continued for adjudication side by side or simultaneously. Therefore, to avoid this situation and also to save the time and undue mental physical stress being taken by the parties, the proceedings before this Court are stayed till the decision of the Civil Court."

7. There is no cavil with the proposition that civil and criminal proceedings can run side by side but in some appropriate cases where controversy in the F.I.R. and in civil suit filed by the same party rests upon the determination of title or the genuineness of a document Hon'ble Supreme Court has stayed the criminal proceedings till the disposal of the civil suit. In this case serious dispute of title and genuineness of the Power-of-Attorney are the subject-matter of the civil suit pending between the parties. I have noted with concern that petitioner has taken different stances in both the proceedings and trial court in the impugned order has rightly observed that there is every likelihood of passing conflicting judgments regarding the same subject. Therefore, I am of the view that the learned trial court has rightly taken guideline from the case of Abdul Haleem v. The State and others (1982 SCMR 988), Muhammad Akbar v. The State and another (PLD 1968 SC 281 and had rightly observed that the civil proceedings should see its fate first rather than the criminal proceedings. The case-law referred by the learned counsel for the petitioner is quite distinguishable as in such like cases no rigid rule can be adopted as the facts of every criminal case are always different and seldom coincide. Learned counsel for the petitioner remained fail to point out any illegality/irregularity of procedure, jurisdictional infirmity or perversity of reasoning in the impugned order dated 30-6-2007 so as to warrant an interference of this Court by declaring the same to be illegal. So far as the legality of order dated 17-1-2010 is concerned suffice it to observe that the criminal law does not permit the court to review its judicial verdict delivered regarding the same matter. In view of all above I do not see any merit in this petition which is dismissed as such. M.W.A./S-16/L Petition dismissed.