' SARMAD JALAL OSMANY, J.--- Vide this petition it has been prayed that the F.I.R. In question be declared to be false, motivated, and an abuse of the process of the law and filed with mala fide objects etc.
2. Briefly stated the facts of the matter are that the complainant Syed Atif had filed F.I.R. No,331 of 2003 with Police Station Boat Basin Karachi against Yousuf Gul, Gulab Hussain and Arshad Ahmed Ansari to the effect that he is the Assistant Branch Manager of Messrs Vyle Communication situated at Hashoo Centre Karachi which is owned by one Taiha Ali Khan. On the day of occurrence he was asked by the Branch Manager of the company Ms. Marium to see who had occupied the office. When he arrived there he found the accused had broken open the locks and forcibly entered into the same. Upon questioning they issued threats and asked him and the other employees to go away. Later it was discovered that a sum of Rs,60,000 some telephone SIMS and the entire record of the company had been stolen by the accused. Earlier also, these accused at the instructions of the petitioner had taken away 2700 SIMS and sold them in the market.
3. In support of the petition, learned counsel has submitted that in fact there is a civil dispute between respondent No,4 Talha Ali Khan and the petitioner regarding their business relationship as per their partnership agreement. Both parties have filed suits against each other in this regard which are pending in Lahore. Hence the F.I.R. Is a motivated one in order to pressurize the petitioner in settling the aforementioned civil suits. Furthermore, per learned counsel, the police statements of the P.Ws. Are contradictory and in fact are hearsay in nature. In this regard he has referred to the police statement of P.W. Talha Ali. Khan in which he says that he had dismissed the petitioner and other co-accused as they had committed fraud with him and as a result they had occupied the office after breaking open the locks. Such information was relayed to him by. Ms. Marium, the Office Manager. Finally, learned counsel has submitted that as per settled law where the criminal proceedings arise out of a civil dispute then the former have to be stayed pending the resolution of the latter. So also that this petition should be considered as an application under section 561-A, Cr.P.C. For the purpose of quashment. In support of this proposition he has relied upon Muhammad Kashif v. Major (Retd.) Ataullah Butt 2003 M LD 1017, The State v. Tarique Mohsin 2004 SCM R 1892, Maqbool Rehman v. The State 2002 SCM R 1076, Mairaj Khan v. Gull Ahmed 2000 SCM R-122, The State v. Asif All Zardari 1994 SCM R 798, Muhammad Siddique v. Badar Muneer 1993 SCM R 233, A.
Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 and Abdul Haleem v. The State 1982 SCM R 988.
4. He has therefore, prayed that the proceedings under the aforementioned F.I.R. Be quashed or alternatively the same be stayed until the civil dispute between the parties is adjudicated finally.
5. On the other hand, the learned Additional Advocate-General has opposed the submissions of the learned counsel as there is sufficient evidence against the applicant/accused in the shape of the 161, Cr.P.C. Statement of the P.Ws. Etc. In this connection, he has referred to such statement of P.W. Saqib according to whom the three co-accused who were employees of Talha Ali Khan in his office were dismissed on 30-8-2005. On the day of incident, they had occupied the same after breaking open the locks and upon enquiry they stated that the petitioner had instructed them to do so. Such statement has been corroborated by P.W. Atif, Waseem and P.W. Talha Ali Khan. P.W.
Maqbool Hussain supports P.W. Saqib to the extent only of breaking open the locks but does not name anyone. Furthermore, according to learned Additional Advocate-General these statements of the P.Ws. Are corroborated by the status quo order issued by the Civil Court in Lahore wherein the suit filed by the petitioner against Talha Ali Khan, status quo order has been passed.
6. Mr. S.M. Iqbal Shah, appearing for respondent No,4, has supported the arguments of learned Additional Advocate-General.
7. We have heard the learned counsel as well as the learned Additional Advocate-General. It would be seen that the only pieces of evidence available against the petitioner are in the shape of the 161, Cr.P.C. Statements of the P.Ws. According to whom the co-accused had implicated the petitioner. It is settled law that the confessions of co- accused whether judicial or extra-judicial are not substantive pieces of evidence, sufficient to convict an accused against whom the same are made i.e. They cannot be made the foundation thereof. At the most they can be corroboratory in nature vis-a-vis other pieces of substantive evidence. In this regard reference can be made to Ahmed Sher v. The State PLD 1995 FSC 20, Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53, Shabihul Hassan v.
The State PLD 1991 SC 898, Arif Nawaz Khan v. The State PLD 1991 FSC 53 and Mumtaz Ali Shaikh v.
The State 1993 PCr.LJ 1919. It is equally well-settled law that criminal proceedings can be quashed if it is a case of no evidence at all or there is some legal impediment which would come in the way of the accused's conviction as allowing the same to continue would serve no purpose and in fact would be an abuse of the process of the Court. In this regard the law is very settled and indeed the cases cited by the learned counsel for the petitioner himself are relevant viz. Maqbool Rehman v.
The State (supra), The State v. Asif Ali Zardari (supra) and Mairaj Khan v. Gul Ahmed (supra). In our opinion, the case at hand for the aforestated reasons would fit very well in this category.
8. As to Mr. Waqar Ahmed's contention that as the criminal proceedings are a sequel of the civil dispute between the parties, suffice it to say, that the offence in question is a distinct one and cannot be connected at all to the civil dispute between the parties regarding partnership affaiRs, The cases cited by Mr. Waqar Ahmed are distinguishable as in Muhammad Kashif v. Maj. (Retd.)
Ataullah Butt (supra) a learned Single Judge of the Lahore High Court found that the parties were in dispute regarding partnership affairs and had resorted both to arbitration as well as filing of a civil suit against each other during the pendency of which an F.I.R. Was sought to be registered by one of them on the allegation that the record/accounts of the partnership had been tampered by the other. Consequently, the criminal proceedings were stayed pending the outcome of the civil dispute between the parties as the subject-matter was the same. In Abdul Haleem v. The State (supra) the Honourable Supreme Court came to the conclusion that the parties were in litigation over agricultural land and had filed suits against each other when one of them filed a criminal complaint against the other on the allegation of forging of power of attorney. Hence, the criminal proceedings were stayed pending the outcome of the civil dispute wherein the alleged forgery could be established or otherwise. Similarly in A. Habib Ahmed v. M.K.G. Scott Christian (supra) the Honourable Supreme Court also found that where the subject-matter of the dispute before the Special Court was also pending adjudication before a Civil Court the proceedings in the Special Court would remain stayed till the decision of the latter Court. As observed above, the offence in question is a distinct one i.e. The instigation/abetment of the petitioner in commission of the same and has nothing to do with the civil dispute between the parties although it may be the outcome of such dispute. The decision of the civil cases filed by the parties against each other regarding partnership matters hence would have no bearing on the adjudication of the criminal proceedings in question.
9. However, as we have reached the conclusion that the proceedings launched against the petitioner would be an exercise in futility since the same could not result in his conviction, we while converting this petition into an application under section 561-A, Cr.P.C. Would quash the proceedings against the petitioner/applicant under the aforementioned F.I.R. Petition stands disposed of along with all pending applications.