' The facts relevant to this order as appear from the record, are that Messrs Pakistan Cables (Pvt.)
Limited were the tenant of Messrs Ali. H. Mandiviwala (Pvt.) Limited in respect of premises Godown No.384 situated in- Mandiviwala Chamber, Old Queens Road, Karachi (hereinafter referred to as "Godown").
2. In September, 1999, the landlord demanded the vacant possession of the godown from the tenant as they had decided to demolish the construction. The tenant, through their reply, insisted for assurance that they shall be provided with space equal to that in their possession, when the new construction is completed but were informed through letter, dated .3:1-2000 that the landlord had taken decision only to the extent of demolishing the building including the godown.
3. After that, experiencing difficulty in respect of the payment and acceptance of the rent by the landlord the tenant filed Miscellaneous Rent case No.2208 of 2000 before the learned VIlth Rent Controller Karachi (South) in October, 2000 and started depositing the rent in the Court.
4. In August, 2001 Godown went into possession of the landlord and they informed the tenant that their goods available in the godown were shifted to their construction SITE at Qaidabad as desired by them. In fact, it is the controversial issue as the tenant alleges that the landlord had forcibly and unauthorizedly trespassed into the Godown by break opening the lock, and illegally removed their goods from there. Whereas the landlord claim their entry in the Godown with consent of the tenant and removal of his goods according to their desire.
5. After that even Muhammad Ishaque Farooqui, Assistant Manager (Personnel), Pakistan Cables (Pvt.) Ltd. Lodged F.I.R. No. 199 of 2001 on 4-9-2001 alleging therein that the opponent/landlord along with others trespassed into the godown and unauthoirzedly removed their valuable goods.
6. After investigation the case was challenged. Tariq Mehmood, the Manager of Messrs Mandiviwala (Pvt.) Ltd. And Ali H. Mandiviwala one of the Directors were sent for trial. The case is presently pending before Vlth Judicial Magistrate Karachi (South).
7. On 19-10-2001 Messrs Pakistan Cables (Pvt.) Ltd. Filed a suit (Suit No.1465 of 2001) in this Court against Messrs Mandiviwalla Estate (Pvt.) Ltd., the landlord for possession of the Godown. The allegation in the suit was exactly the same whiCh was levelled through the criminal F.I.R. (F.I.R. No. 199 of 2001) wherein it was alleged that Messrs Mandiviwala Estate (Pvt.) Ltd. Had criminally trespassed into the Godown by break opening the lock and removed the goods/articles from there illegally and unauthorizedly.
8. In April, 2003 the tenant also filed another suit in the Court against the landlord being Suit No.405 of 2003 for return of the movable articles removed from the Godown during the incident of criminal trespass. They also prayed for damages.
9. After institution of the first suit bearing No.1465 of 2001 and before filing of the second Suit No. 405 of 2003 the applicants who are accused in the criminal case (F.I.R. No. 199 of 2001) pending before the Vlth Judicial Magistrate (South) filed an application for staying the proceedings in the case till decision of the suit pending in this Court. The application was dismissed by order, dated 18-1-2003.
After that present miscellaneous application for quashment or in the alternative stay of the proceedings in criminal case before the Vlth Judicial Magistrate, Karachi (South) has been filed.
10. Arguments of the learned counsel for the parties have been heard.
11. Learned counsel for the applicants has argued the central issue in the Civil Suit No.1465 of 2001 is the happening of the alleged incident of trespass and removal of the goods which are the allegations in the criminal case also therefore, the proceedings in the criminal case are to be stayed till decision in the Civil Suit. He elaborated his contention by saying that in the criminal case as well as in the suit is alleged that the applicant/landlord, trespassed into the godown/rented premises by break opening the kick and unauthoirzedly/illegally removed the valuable goods belonging to tenant Messrs Pakistan Cables (Pvt.) Ltd. Therefore, the proceedings in the criminal case deserve to be stayed. In favour of his contention he referred to the decision of the Hon'ble Supreme Court reported in Abdul Hayee v. The State and another (1972 SCM R 473).
12: Learned Advocate representing the respondent No.2 strongly opposed the prayer for stay of the criminal proceedings arguing that although the criminal case and the civil suit relate to the same incident but the continuity of both the proceedings at the same time is not barred. He argued that in criminal case the prosecution side is required to produce their evidence and the possibility of loss of some of the evidence during the stay of the proceedings cannot be excluded. According to him the proceedings in criminal case as well as suit be allowed to continue in accordance with law as they are to be decided on the basis of evidence in the individual matter irrespective of the evidence in the other case. Even otherwise, if the plaintiff who is complainant in the criminal case gets decree in his suit he will be required to prove guilt of the accused in criminal case through evidence before trial Court despite decree in civil suit.
' He also added that stay of the criminal proceedings till the result of the civil litigation brings the proceedings in the state of total uncertainty. Normally the civil litigation goes upto Hon'ble Supreme Court and the final decision by that Hon'ble Court may come years after the stay of the criminal proceedings. The commencement and conclusion of the criminal proceedings thereafter would again take time. According to him, such course is not to be adopted.
13. The learned State counsel adopted the arguments of the learned counsel representing the respondent No.2.
14. The legal position is that civil suit and the criminal case both have to be decided on their individual merits and the evidence recorded in one of them cannot be used in the other nor the judgment in the civil suit would be binding in the criminal case. The two proceedings are to be governed by different laws. The Court dealing with civil suit is barredfrom staying the proceedings in any criminal matter. Section 56, Specific Relief Act puts an absolute embargo in that respect. The section with relevant clause is reproduced below:-- "(56) Injunction when refused.
An injunction cannot be granted:-- (a)
(b)
(c)
(e) to stay proceedings in any criminal matter; (f)
(g) 91No provision of the law goverhing the criminal proceedings either bars the Court or requires it to stay the criminal proceedings till decision of the civil suit relating to the same subject-matter.
However, the Hon'ble Supreme Court in the case of Muhammad Akbar v. The State and another (PLD 1968 SC 281) has laid down a rule that normally criminal proceedings should not be postponed pending the disposal of the civil litigation connected with the same subject-matter but the Court of criminal jurisdiction can stay the proceedings only in the cases where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so connected with it that there is danger of grave injustice being done, in the case, if there be a conflict of decisions between the Civil Court and the Criminal Court.
15. For knowing as to whether the criminal liability depends upon the result of civil litigation the test is as to whether the commission of the criminal act/offence can be proved irrespective of the decision in the civil suit, or that decision would affect and change the character of that act. Only in the later case the decision in, criminal case can be dependent upon the civil litigation. Also in such cases the conflicting decisions may cause injustice. Otherwise, even if the same act amounts to be a penal offence and an act giving rise to a cause of action for civil suit, the criminal liability cannot be said to be dependent upon the result of the civil suit. For mere possibility of conflicting decisions in the civil and criminal proceedings, the proceedings in criminal case cannot be stayed.
16. In the present case both of the cases started with the event of taking alleged forcible possession by the applicant which is basically a criminal act rather an offence. Although it gave cause of action to the respondent No.2 for filing the suit for restoration of possession of thepremises but the criminal liability is not dependent upon the result of the civil litigation nor the result of civil litigation will change the character of that act/offence.
18. In the result of above, the proceedings in criminal case based on F.I.R. No. 199 of 2001 are not to be stayed till the result of civil suit No. 1465 of 2001. The Miscellaneous Application is, therefore, dismissed: