SYED MUHAMMAD FAROOQ SHAH, J.---Impugned is an order dated 14-9-2011, passed by the learned Special Judge Anti Corruption (Provincial) Hyderabad, in Special Case No. 08 of 2007, whereby the proceedings were stayed under section 249 Cr.P.C, till decision of civil IInd appeal, pending for adjudication before High Court of Sindh, Hyderabad Circuit. Applicant/complainant being aggrieved and dissatisfied with the impugned order, preferred the captioned revision application, under sections 435/439 Cr.P.C, wherein he has prayed to set-aside the impugned order and to direct the learned court of Special Judge Anti corruption, Hyderabad, to conclude the trial on merits.
2. The allegations against the respondents/accused levelled by the applicant/ complainant in a complaint, incorporated into F.I.R., bearing Crime No. 19 of 2000 of Police Station ACE Sanghar, for offences under sections 217, 420, 467, 468, 34 P.P.C. Read with section 5(ii) Prevention of Corruption Act, 1947 was registered at Police Station ACE Sanghar, challaned in the court of Special Judge Anti-Corruption (P) Hyderabad, are that on 18-7-1985, one Sarfraz Rajar made application to Assistant Commissioner Khipro to change the 'khata' of 120-3 acres lands in Deh Dandh Bodlo, Deh Ranaho Taluka Khipro, which was allotted to his grandfather Haji Mir Hassan son of Parchi Khan Rajar, who forwarded the same to Muhammad Mubeen, the then Mukhtiarkar Taluka Khipro.
Accused Muhammad Mubeen directed Tapedar accused Chando Mal to visit the site on 2-4-1986, who recorded statement of witnesses namely Dilawar and Muhammad Ibrahim and accused Muhammad Mubeen attested the same and issued 'robkari' to accused Chando Mal to make entries in the name of Mir Hassan son of Parchi Rajar and accused Muhammad Mubeen attested the following entries:--
(i) In the month of March, 1987 entry No. 126 in Deh Ranaho (Makan Bodlo Tali Bodle-wari) admeasuring 100-0 acres of Government land made by Deenar, Tapedar in favour of Mir Hassan son Parachi Rajar on the basis of vouchers issued by Assistant Commissioner, Khipro and Mukhtiarkar, Khipro order No. 306 dated 7-9-1985. Such entry was attested by accused Muhammad Mubeen, the then Mukhtiarkar.
(ii) Entry No. 204 dated 3-3-1987 (Makan Bodlo from Bodio Dandh) made by Deenar, Tapedar in respect of transfer of Government land admeasuring 10 acres in the name of Adul son of Paroo Rajar and it was verified and attested by accused Muhammad Mubeen, the then Mukhtiarkar on the basis of vouchers.
(iii) Entry No. 205 dated 3-3-1987 (Makan Bodlo from Bodlo Dandh) admeasuring 20-0 acres in Deh Ranaho transferred of Government land made by Deenar, Tapedar in the name of Adul son of Paroo Rajar and same was verified and attested by Muhammad Mubeen, the then Mukhtiarkar on the basis of vouchers.
3. From perusal of the facts as mentioned by the trial court in the impugned order, it transpires that one Habib son of Gulan Dars made an application to- the land record officer Hyderabad for grant of true copies of Patas in favour of Mir Hassan Rajar and others, who intimated them under his letter No.B-91 dated 20-6-1987, that no such entries were available in the survey record in the names of above said persons and Mukhtiarkar, Khipro also issued letter No. 157 dated 27-7-1988. He intimated to applicants that no such record of above said land is available in his office. On 17-6- 1987, Habib son of Gulan made an application to the Deputy Commissioner Sanghar that above entries available in record of rights are false and bogus and requested for cancellation. The Deputy Commissioner, Sanghar after conducting enquiry through Assistant Commissioner / ' Allotment Committee, Khipro ordered for cancellation of above said entries vide his order dated 28-3-1988 and further ordered to allot the above land to applicants. The order of the Deputy Commissioner, Sanghar was never complied with, and further foti khata badal' were made in the record of rights in the names of Jian alias Sarfraz Rajar and others, vide entry No.170, dated 10-7-1996. On the death of Adul son of Paroo Raj ar, the record was further mutated in the name of Dilawar son of Adul Rajar and others and above said forged entries were fraudulently made in Deh V.F.XV of Deh and Tapa Ranaho, Taluka Khipro on the basis of false report of accused Chandomal and accused Muhammad Mubeen issued Rubkari on the basis of above false entries though they were aware that no record was available in the office of Land Record Officer and Taluka Mukhtiarkar Khipro and in this way, they gave wrongful loss to the applicant and others and got pecuniary gain to themselves and thereby committed offences punishable under sections 217, 420, 467, 468/34 P.P.C., read with section 5(2) of Prevention of Corruption Act, 1947.
3. Arguments heard. Record perused.
4. Learned counsel for the applicant while placing reliance on the following case-law submitted that the impugned order is not sustainable in law:-- Haji Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCM R 1192), Liaquat Hussain v.
The State (2009 YLR 1983) and Muhammad Tarique v.
Additional Sessions Judge, Dunyapur (2012 PCr.LJ 285).
5. Conversely, learned counsel for the respondents/accused supported the impugned order and submitted that where same matter was subjudice before the civil court, criminal proceedings would remain stayed till decision of civil court. To support his contention, learned counsel referred the following case-law:-- Abdul Haleem v. The State (1982 SCM R 988), Rasool Khan v. Haji Banaras Khan PLD 2004 SC 364), Mushtaq Ahmad v. S.H.O. And others (2004 M LD 1502), Rasool Khan and others v. Haji Banaras Khan PLD 2004 SC 364; Hyder Ali Bhimji v. The State (2009 PCr.LJ 989) and A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353)
6. The controversy in issue in this case is whether pendency of civil proceedings may be a ground to stay the criminal proceedings, as the law on the subject has now been set at rest by the honourable Apex Court in the case of Hall Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCM R 1192), wherein on the strength of cases reported as PLD 1985 SC 134 and 1993 SCM R 2177 ruled that criminal proceedings are not barred in presence of civil proceedings and that civil and criminal proceedings can be proceeded simultaneously.
7. Perusal of the record shows that on 19-9-2010 the Criminal Revision No. S-146 of 2009 Re- Muhammad Mubeen v. The State was disposed of by this court with the direction to the learned trial court to dispose of the case within three months from the date of receiving the copy of the order which was received on 22-2-2010 and thereafter on framing the charge against the respondents Nos. 2 and 3 on 9-3-2010, the prosecution examined the complainant Gulan and 8 others P.Ws. Learned counsel for the applicants submitted that the case was adjourned from time to time and the reference filed by the learned Judge Special Court Anti corruption was disposed of by this court with direction to the trial court to dispose of the case latest by 31-10-2011 but instead of disposing of the above case on merits and complying with the orders of this court in letter and spirit, passed the impugned order dated 14-9-2011, on the application dated 11-8-2011, moved by the learned advocate for accused, seeking the adjournment sine die, which is contrary to law, facts, procedure and directions of this court, rather it is perverse, arbitrary and void on the grounds narrated in the instant petition.
8. Need arises to reproduce the earlier order dated 29-8-2011, whereby the reference made by the learned trial court for enlargement of time, was disposed of by this court, with the following observations:- "29-8-2011 Mr. Mohammad Iqbal Kalhoro, A.P.G.
By order dated 19-2-2010 this court had disposed of criminal revision application with directions to the trial Court to dispose of the case within three months from the date of receiving the copy of the order. According to this reference the order was received on 22-2-2010 and therefore the revision and to be disposed of by 22nd May, 2010 but Reference is now being made on 16-8-2011 i.e. Almost fifteen months for further extension of two months to finalize the trial. This state of affairs is not acceptable to this court and, therefore, the learned Judge is warned that in future if any Reference for extension of time is to be filed it should be filed on the date when it was due and not after passing of the date.
In the interest of justice the request is allowed and the learned Judge is directed to dispose of the revision latest by 31st October 2011 and the office is directed to immediately fax this order to the learned Judge. The learned Judge is cautioned that if he does not dispose of the case by 31st October 2011 and inform the Additional Registrar of this court of the compliance of such disposal then perhaps he may not be let off with only a warning.
This reference is disposed of.
Sd/- Muhammad Ather Saeed Judge "
9. In the case of Seema Fareed and another v. The State and another (2008 SCM R 839) it was held that criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to some transaction had been instituted, it had never been considered to be a legal bar to the maintainability of criminal proceedings which could proceed concurrently because conviction for a criminal offence was altogether a different matter from the civil liability. In view of the dicta as laid down by the apex Court, both proceedings of civil and criminal can be carried out simultaneously. The pendency of IInd Appeal before this court creates no legal bar at all, to initiate criminal proceedings. Undisputedly, after framing of charge complainant and eight witnesses have been examined by the prosecution and there remains formal witnesses and the court instead to stay the proceedings under section 249, Cr.P.C. Can decide the matter on its own merits or to proceed under section 249-A, Cr.P.C., strictly on merits, if the charge was found groundless or there is no probability of conviction of the accused on conclusion of the trial. Even otherwise, learned counsel for the applicant has rightly submitted that section 249, Cr.P.C., whereby the proceedings were stayed by the trial court is alien to stay the proceedings, as section 249 Cr.P.C. Enunciates that a magistrate of the 1st class or any other magistrate with the previous sanction or the district magistrate, for reasons to be recorded by him, may stop the proceedings at any stage, without pronouncing any judgment either of acquittal or conviction and thereupon release the accused. It appears that instead to stop the proceedings, the learned trial Judge has stayed the proceedings till decision of civil appeal, arising from F.C. Suit No. 72 of 1988, pending before this court. Moreso, it is submitted that the respondent Nos. 2 and 3, accused in this revision application are not party to civil proceedings based involved 1st Appeal No.5 of 1998. As mentioned supra, the request for extension of time to dispose of the Special Case on merits upto 31-10-2011 by the learned Judge Special Court (Provincial) Anti Corruption, Hyderabad was acceded by this court but instead of disposing of the case on merits he has stayed the proceedings on an application of accused persons, which order is not sustainable in law, mainly on the ground that as many as 9 prosecution witnesses have since been examined by the prosecution and there remains only few witnesses to be examined, therefore, the impugned order apparently is arbitrary and void, causing miscarriage of justice to the parties. Resultantly, the impugned order is set aside with direction to the trial court to decide the matter strictly on merits, within a period of 60 days on receipt of this order and result of disposal of the case be intimated to the Additional Registrar of this court. It need not to iterate that in case of non-compliance of directions of this court necessary proceedings of insubordination of court's order shall be initiated, as admittedly, the nine witnesses of the prosecution have already been examined and now there remains evidence of three witnesses to be examined, in such peculiar facts and circumstances of the case, the case cannot be kept pending unnecessarily as every accused has a right of speedy justice and where justice is delayed it amounts to denial of justice. In the present case the learned trial court has seriously erred to stay the proceedings, more particularly the prosecution is not to be blamed for the non-production of the witnesses.
Captioned Revision Application is disposed of in the terms indicated above.