1. ' NADEEM AZHAR SIDDIQI, J.--- By this common judgment I intend to dispose of Criminal Miscellaneous Applications Nos.478 of 2000, 236 of 2000 and 8 of 2001 arising out of one F.I.R.
2. Having similar facts and law points.
3. ' By filing these criminal miscellaneous applications the applicants have prayed for quashing the proceedings in Case No,10 of 2000 (Re: State v. Syed Muhammad Akbar and others) pending before the learned Judge, Anti-Corruption Central-II, Karachi or may pass any other order as deemed fit and proper by this Court.
4. ' In short the case of the applicants is that an F.I.R. Was got registered by the complainant Mst.
5. Sarkar Khanoo Maloo with Federal Investigation Agency alleging therein that she is the major share-holder and Director of three companies, namely, Messrs Panasian Industries (Pvt.) Ltd., Messrs Universal Trading Company (Pvt.) Ltd. And Messrs Universal Development (Pvt.) Ltd. And as such Chief Executive of all the three companies and the three companies are joint owners of three plot of lands bearing Nos.90, 90/4 and 90/5 measuring in all 3,740 square yards with a cinema known as Prince Cinema. It was. Further alleged in the F.I.R. That Abdul Kassim Lakha, the other Director with minority shares of the companies with the assistance of his brother Azizuddin Kassam Lakha and friends Syed Muhammad Akbar and Abdul Karim Kara with the collaboration of concerned officers of Corporate Law Authority by getting the record tampered and by forging her signature managed to transfer 1,00,000 ordinary shares of Messrs Panasian Industries (Pvt.) Ltd. In the name of Abdul Karim K. Kara and 1,00,000 shares of the same company in the name of Abdul Malik Kassam Lakha. It was further alleged that Abdul Malik Kassam Lakha and his associates in collusion with the officers of Military Estate Office, Karachi with intention to fraudulently deprive her of the land and the Prince Cinema obtained fresh lease of entire land on the basis of forged documents and got merged the three parts into Plot No,90 and got executed and registered a Lease Deed in favour of Messrs Pansian Industries (Pvt.) Limited.
6. ' In the F.I.R. Neither any allegation against the applicant in Criminal Miscellaneous No,478 of 2000 has been levelled nor his name is appearing in the F.I.R. The names of the applicants in Criminal Miscellaneous No,236 of 2000 and 8 of 2001 are appearing in the F.I.R. With specific role. However, in the inquiry conducted by the FIA it has been observed that Abdul Malik Kassam Lakha, Azizuddin Kassam Lakha, Abdul Karim Kara (applicant in Criminal Miscellaneous No,8 of 2001), Syed Muhammad Akbar (applicant in Criminal Miscellaneous No,236 of 2000) and Hyder Ali Bhimji (applicant in Criminal Miscellaneous No,478 of 2000) with the connivance with each other and complicity with Taj Muhammad Samoo, Retired Registrar, Corporate Law Authority and Shaukat Ali, U.D.C. Of Corporate Law Authority dishonestly and fraudulently prepared forged record and used the same as genuine and deprived the applicant Mst. Sarkar Khanoo Maloo from her valuable properties.
7. ' After usual investigation the challan was submitted before the learned Special Judge, Anti- Corruption Central-II, Karachi. During pendency of the case, an application under section 249-A, Cr.P.C. Was filed by the applicant in Criminal Miscellaneous No,478 of 2000, which was dismissed on 25-11-2000, hence the application.
8. ' Mr. Muhammad Ashraf Kazi, learned counsel for the applicant in Criminal Miscellaneous No,478 of 2000 states that neither any allegation against the applicant has been made nor his name is appearing in the F.I.R. He further submits that the prosecution has submitted three interim challans in the matter, out of which in two interim challans there is no allegation against the applicant and only in the interim challan dated 20-7-2000 only allegation against the applicant is that he on his letterhead addressed a letter dated 17-7-1996 to the Registrar, Joint Stock Companies enclosing Form No,29 showing that Mst. Sarkar was ceased to be Director and Chief Executive under section 181 of the Companies Ordinance, 1984 and accused Abdul Karim Kara was appointed in her place.
9. He then submits that the dispute between the parties is covered by section 152 of the Companies Ordinance, 1984 and the applicant has been falsely implicated without any mens rea on his part.
10. He also submits that on the same allegation upon which the F.I.R. Was registered the complainant has filed a Civil Suit No,604 of 1998 pending in this Court and has referred to paras.24 and 25 of the plaint in that suit to show that the allegations are the same. He then submits that in case a case of quashment has not been made out learned trial Court should have stayed the criminal case, as according to the learned counsel, it has to be decided in the suit whether the documents were forged or not. He then submits that keeping the case pending against the applicant who is an old ailing person amounts to miscarriage of justice and abuse of process of Court. Learned counsel has relied upon following reported cases:---
(1) A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353, (2) Soofi Muhammad Anwar v. Mst.
11. Badshah Begum 1999 SCM R 1475 and (3) Akbar Ali Sharif v. Syed Jamaluddin 1991 M LD 203.
12. ' Mr. Muhammad Farooq, learned counsel for the applicant in Criminal Miscellaneous No,236 of 2000 submits that there is no material available on record to connect the applicant with the alleged offence and mere allegation of the complainant is not sufficient to keep the case pending against the applicant. He submits that involving similar controversy other civil suits are also pending in this Court. One Suit bearing No,1676 of 1999 was filed by the applicant against the complainant and others and the other bearing Suit No,1395 of 1999 was filed by Panasian Company against the Registrar, Joint Stock Companies and others are still pending. He then submits that keeping the case pending against the applicant without any evidence and incriminating material is abuse of process of Court.
13. ' Mr. Muhammad Ashraf Kazi, Advocate holding brief for Mr. Ali Mumtaz, learned counsel for the applicant in Criminal Miscellaneous No,8 of 2001 has adopted the arguments submitted by him in Criminal Miscellaneous No,478 of 2000.
14. ' Mr. Shoukat Hussain Zubedi, learned counsel for the complainant in all three criminal miscellaneous applications states that applicants the proceedings cannot be quashed, as materials connecting the appellants with the offence are available on the record. He then submits that the allegation is that the documents have been forged by the accused persons incollusion with each other and unless witnesses are examined it cannot be said that there is no probability of conviction of the accused persons. He then submits that law provides a detailed inquiry into the offence and the normal procedure prescribed by law for deciding the fate of the case should be followed. He has relied upon following reported cases:---
(1) Gianchand v. The State 1968 SCM R 380, (2) Shaikh Muhammad Yamin v. The State 1973 SCM R 622 and (3)
15. Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275.
16. ' Mr. S. Ahmed Ali Shah, learned Standing Counsel in all three criminal miscellaneous applications submits that in the civil suit FIA is not a party to the proceedings. He further submits that interim challan was treated as final challan in which the applicants have been fully implicated and that mens rea cannot be decided at this stage unless the complainant and other witnesses are examined. He then submits that the witnesses have fully implicated the applicants and there is every probability of conviction of the applicants.
17. ' I have heard the learned counsel for the parties and perused the record made available before me.
18. ' It is an admitted position that the complainant has filed an application with Federal Investigation Agency (FIA) on 26-9-1997, which was converted into F.I.R. On 10-2-2000. During pendency of the inquiry with FIA, Suit No,624 off 1998 was filed by the complainant against various persons including present applicants and that suit is still pending. In the suit the allegations are that the deceased Abdul Malik Lakha, his brother Abdul Karim K. Kara and Hyder Ali Bhimji forged the signatures of the complainant and prepared innumerous forged, fabricated, bogus counterfeited and feigned documents. It was further stated in the plaint that the deceased Abdul Malik Lakha through active participation, guidance and questionable counseling by Hyder Ali Bhimji (applicant in Criminal Miscellaneous No,478 of 2000), who was able to obtain bogus documents/certificates for Abdul Malik's prelude, returned to office and reverberation to the pavilion as Director and Chief Executive of Messrs Panasian Industries (Pvt.) Limited, Karachi.
19. In the F.I.R. The names of the applicants in Criminal Miscellaneous Nos.236 of 2000 and 8 of 2001 are appearing with the role of forging and tampering documents with the fraudulent intention to deprive the complainant from her lawful property. The complainant has not levelled any specific allegation against the applicant in Criminal Miscellaneous No,478 of 2000, but during course of inquiry some material has been collected on the basis of which it has been stated in the said F.I.R.
20. That on 25-10-1995 Chartered Accountant Hyder Ali Bhimji of all three companies provided Form- 29 in Corporate Law Authority on behalf of Abdul Malik R.K. Lakha and accordingly Mst. Sarkar Khanua Moloo become the Chief Executive of the said company and the owner of three plots.
21. During inquiry it was further transpired ,that in July, 1996 Azizuddin K. Lakha, Abdul Malik R.K. Lakha, Hyder Ali Bhimji (applicant), Syed Muhammad Akbar and Abdul Karim Kara in connivance with Taj Muhammad Sammo, retired Registrar of Corporate Law Authority and Shoukat Ali, U.D.C. Of Corporate Law Authority replaced original Form "A" from the file of Messrs Pan Asian Industries (Pvt.)
22. Limited maintained in the office of Corporate Law Authority substituted another Form "A" containing forged signatures of Mrs. Sarkar Khanua Moloo showing 50% shares of Abdul Malik R.K. Lakha and 50% share of Abdul Karim Kara ousted from the Directorship and Chief Executiveship of all the three companies.
23. From the perusal of F.I.R. It appears that the allegations against applicants are forging, manipulating the documents in connivance with each other. It is now well-settled principle of law that the proceedings can be quashed at any stage of proceedings if there is no probability of conviction of the accused person. For invoking the provisions of section 249-A, Cr.P.C. The accused has to show that even if material available on record is taken to be true at its face value there would be no probability of conviction of the applicant. In this matter material is available on record against the applicants and unless proper evidence is recorded it cannot be said that there is no probability of conviction of the accused/applicants.
24. ' From the applications it appears that the applicant in Criminal Miscellaneous No,478 of 2000 before approaching this Court has filed an application under section 249-A, Cr.P.C. Before the trial Court and after its dismissal has filed this application, whereas the applicants in other two applications have directly approached this Court for quashment of proceedings.
25. Quashment of a criminal case is an extraordinary remedy which could be invoked only in exceptional circumstances where trial of accused tantamount to abuse of process of Court and the said provision could never be used as a substitute for the prescribed trial. When law provides a detail enquiry into offence, then ordinarily and normally the procedure prescribed by law for deciding the fate of the case should be followed unless some extraordinary circumstances are shown to abandon the regular course and follow the exceptional course.
26. ' The test laid down by the superior Courts for interference in criminal proceeding is that if the proceedings are allowed to continue they should result in grave miscarriage of justice and there should exist no other provision of law by which the aggrieved party could seek relief. The other test laid down is that the allegation in the F.I.R. And the statement of witnesses recorded by the police, if taken at their face value and accepted in their entirety no offence is made out and there is no probability of the conviction of accused.
27. ' In the reported case of A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 the Honourable Supreme has held that if prima facie the offence had been committed the ordinary course of trial before the Court was not to be allowed to be deflected through an approach to special revisional or inherent jurisdiction of High Court.
28. ' In the reported case of Muhammad Khalid Mukhtar v. The State PLD 1997 SC 275 the Honourable Supreme Court has held that High Court ordinarily is reluctant to quash proceedings under section 561-A, Cr.P.C. Unless trial Court exercise its powers under section 249-A or 265-K, Cr.P.C. Which are incidentally of the same nature and in a way akin to an co-related with quashing of proceedings.
29. The applicants in Criminal Miscellaneous Nos.236 of 2000 and 8 of 2001 have failed to demonstrate the extraordinary circumstances for directly approaching this Court for quashment of proceedings.
30. ' From the perusal of record it reveals that documentary as well as oral evidence is available against the applicants, which is yet to be recorded and appraised by trial Court and the applicants are unable to make out that there is no probability of their conviction in case for any offence or that continuance of criminal case against them would amount to abuse of process of Court.
31. ' As far as the request for staying the proceedings of criminal case is concerned, I have noticed that criminal case is pending since 2000. None of the applicants have ever requested the trial Court to stay the proceedings and only in Criminal Miscellaneous No,478 of 2000 the applicant while filing application in this Court has prayed for stay of the proceedings. Both the criminal as well as civil cases are on different footing and for different purpose. The suit was filed for cancellation of forged documents and the F.I.R. Was registered to punish the persons responsible for forging the documents. In case the suit is dismissed the applicants can claim dismissal of criminal proceedings on the basis of judgment of civil suit but in case the suit is decreed they will insist upon proceedings with the criminal case. In both the proceedings different sets of evidence are required.
32. ' In the case of Nooruddin and 11 others v. Abdul Waheed PLD 1997 Kar. 6 a learned D.B. Of this Court has held that "it is also settled that the standard proof generally required in criminal cases is beyond all reasonable doubt which in civil cases it is the proof on balance of probabilities. The criminal case is pending since 2000 and nine years have been passed".
33. ' Stay of criminal proceedings pending civil suit has been considered by the Honourable Supreme Court in various reported cases. In the reported case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 the Honourable Supreme Court relying upon the reported case of Abdul Haleem v. State 1982 SCM R 988 has held as under:--- "There is yet another point to be dealt with. During the hearing of these appeals, it came to light, as above, that the civil suit dealing with the same subject-matter is still pending. We asked the learned counsel for the applicants to address arguments on the point; whether, in accordance with the ordinary rule laid down by this Court that in such-like situation the proceedings in the Criminal Court would remain stayed till the decision of the Civil Court, should not be followed he had not much to say to oppose this procedure."
34. ' In the reported case of Abdul Haleem v. The State 1982 SCM R 988 the Honourable Supreme Court has held as under:--- "After hearing the learned counsel for the parties, and perusing the authorities cited at the Bar, we are of the view that the High Court should have followed the rule laid down by this Court in Muhammad Tufail v. The State and another, namely, that during the pendency of the civil litigation the criminal proceedings initiated by the applicant should have been stayed."
35. ' In view of the above discussion, the applications for quashment are dismissed. However, following the above rule laid E down by the Honourable Supreme Court of Pakistan the criminal proceeding arising out of F.I.R. Is stayed during the pendency of the civil litigation.
36. ' All these criminal miscellaneous applications are disposed of accordingly.