SHAHNAWAZ TARIQ, J.---Through the captioned criminal miscellaneous application, the State through Sikandar Zulqarnain, Investigating Officer has approached this Court to seek permission under section 94 Cr.P.C. Against M/s. Habib Bank Ltd and 9 others. The applicant has sought following reliefs:- i) To direct the respondents Nos.1 to 8 to provide complete details of the accounts (mentioned above in para No.4) of the memo of petition to the undersigned Investigating Officer of Case Crime No.195 of 2012. ii) To direct the respondent No.9 to provide complete details of the accounts of the accused persons through their CNICs as named below:-
(a) Muhammad KhalidCNIC No.42101-3861021- 7
(b) Neelofar Khalid CNIC No.42101-1720204- 0
(c) Muhammad UmairCNIC No.42101- 1857359-1
(d) Muhammad ZubairCNIC No.42101- 1857344-7
(e) Huzaifa Islam CNIC No.42101- 2245514-1
(f) Hamza Khalid CNIC No.42101- 2149564-1 iii) To direct the respondent No.10 to provide complete Tax deduction of M/s Islam Brothers to this Hon'ble Court and the petitioner, Investigating Officer which will be very much necessary to ascertain the actual amount of embezzlement committed by the accused persons. Iv) To direct the respondents Nos.1 to 9 to stop any sort of transaction in the accounts mentioned in Para No.4 of the memo of petition or the accounts which may be detected during search which were operating in the name of the accused persons, the details of such accused will be provided as and when detected during investigation of the case.
' Any other relief or reliefs which may deem fit and proper under the circumstances of this case.
2. Precisely, the relevant facts narrated in instant application are that petitioner is an Investigating Officer of Crime No.195 of 2012, under sections 420/406/471, P.P.C., lodged at Police Station Docks, Karachi, by the complainant namely Dr. Obaid-ur-Rehman being partner of the firm namely M/s Islam Brothers vide registration No.32681, dated 24.03.1981, against the accused persons (i)
Muhammad Khalid (ii) Muhammad Umair (iii) Muhammad Zubair and others for misappropriation and embezzlement of the company's funds by playing fraud and misrepresentation, thus, they caused losses to the firm and committed criminal breach of trust. Accused opened some fictitious accounts with respondent banks for the purpose of transfer of the funds of the firms Mis Islam Brothers and those accounts were used and operated by the accused persons in order to accomplish their nefarious designs. The details of the accounts of those banks which were detected during investigation are mentioned as below:- S.No.Title Accounts Name of Bank Branch Pakistan
1. Islam Brothers operated by M. Khalid1679-79001281-03 Habib Bank Ltd.Shahrah-e - Jehangir Branch
2. M. Khalid 1679-79001270-03 Habib Bank Ltd.Shahrah-e - Jehangir Branch
3. Islam Brothers operated by M. Khalid1060-0081-000429- 01-2Bank Al-Babib Ld.Saima Flowers Branch
4. Huzaifa Islam s/o M.
Khalid1060-0081-001022- 01-3Bank Al Habib Ltd.Saima Flowers Branch
5. Hamza Khalid s/o M.
Khalid1060-0081-002051- 01-0(2009)Bank Al Habib Ltd.Saima Flowers Branch
6. M.Umair 42101-1857359-1 Not known Bank Al-Habib Ltd.Saima Flowers Branch
7. Islam Brohers operated by M. Khalid20311-714-119247 Metropolitan Bank Ltd.Block-G, North Nazimabad, Karachi
8. Muhammad Khalid 20311-714-119551 Metropolitan Bank Ltd.Block-G, North Nazimabad, Karachi
9. Neelofar Khalid and Huzaifa Islam8600772001 Faysal Bank Ltd. (Former Bank Royal Bank)Almas Square, Block-G Karachi
10. Neelofar Khalid NIC 42401-1720204-0 andNow known Faysal Bank Ltd. (FormerAlmas Square, Block-G, Karachi Huzaifa Islam NIC 42101- 2245514-1Bank Royal Bank)
11. Zubair Khalid 0216-122250-001 Faysal Bank Ltd. (Former Bank Royal Bank.)Almas square, Block-G, Karachi
12. Muhammad Khalid 01-010-0232-6 Faysal Bank Ltd. (Former Bank Royal Bank)Barkat-e-Hydri
13. Muhammad Khalid and Neelofar Khalid01-010-1180-1 Faysal Bank Ltd.Barkat-e-Hydri
14. Islam Brothers operated by M. Khalid6710731000 Faysal Bank Ltd. (Formerly Bolan Bank)Jodia Bazar Branch
15. Muhammad Khalid 05886- 3001801010058863MCB Bank Ltd. Bunder Road Branch
16. Muhammad Umair 05372-4 MCB Bank Ltd. Bunder Road Branch
17. Muhammad Khalid 1002367234 CITI Bank Ltd. Shahrah-e-Faisal Branch now AWT.
Chundrigar Road, Karachi
18. Islam Brothers Real Firm Accounts1001183857 CITI Bank Ltd. Shahrah-e-Faisal Branch now AWT.
Chundrigar Road, Karachi
3. The petitioner wrote letters to the respondents for the purpose of cooperation in the investigation to provide the details of the accounts of .The accused persons, but they did not supply the same.
The petitioner also wrote letter to the respondent No.10, Commissioner Inland Revenue Zone-I (RTO), Karachi, in order to provide details of Tax deduction of the firm M/s Islam Brothers which would be very material to ascertain that how much amount of the firm was misappropriated by the accused persons, but the respondent No.10 did not cooperate.
4. Learned APG contended that interim Challan was submitted before the concerned Court and investigating officer approached nine respondent banks but they failed to furnish the required details of accounts opened by the accused. He contended that during the course of investigation, accused persons have no right to intervene or obstruct the said process as the Investigating Officer has to file final Challan, as such objections filed by the accused have no legal substance.
5. Mr. Umar Soomro, learned counsel for the complainant contended that the complainant and the accused are real brothers and they were carrying their business under the name and style of M/s Islam Brothers along with their two other brothers. He further submitted that the accused persons became dishonest and opened certain accounts in different banks and instead of depositing cheques in the company's account, dishonestly deposited the same in their own accounts as such committed cheating with other co-sharers, whereupon the widow of one brother has already filed Suit No.649/2004, before this Court.
6. Learned counsel for the complainant further contended that the pendency of the civil proceedings will not debar the proceedings of the pending criminal case as well as the investigation under the process to detect the details of the accounts of the accused and to ascertain the actual amount misappropriated by them which otherwise is the case property of the subject FIR. He also contended that the details of accounts will not cause any harm to the accused as police is legally empowered to investigate the subject FIR and after completion of investigation, final Challan will be submitted by the Investigating Officer. He further submitted that the accused filed quashment petition which was dismissed as withdrawn and even application under section 249-A, Cr.P.C. Filed by the accused before the learned trial Court was declined.
7. Learned counsel for the complainant relied upon the case of Syed Mohammad Ahmed v. The State 1972 SCMR 85, wherein the Hon'ble Supreme Court has observed that there is no invariable rule that criminal proceedings be postponed pending disposal of civil litigation. He relied upon the case of Akhtar Hussain Zaidi v. The State PLD 1985 Lahore 662, wherein it was held that mere filing of a civil suit is not a bar to the continuation of the criminal case and even if the civil case as well as the criminal proceedings relate to the same subject matter, there is no inflexible rule, that the criminal proceedings must be quashed. He relied upon the case of Ahmed Bin Saleem v. The State and 3 others 1990 PCr.LJ 838, wherein it was observed that main question involving in criminal case as well as in civil suit being one and the same, proceedings in criminal Court deserved to be stayed till disposal of civil suit, was repelled as there was no invariable rule that criminal proceedings be postponed pending disposal of civil litigation.
8. Mr. Mehmood Alam Rizvi, learned counsel for the accused vehemently contended that police has already submitted Challan and the trial Court has framed charge against the accused, as such the complainant with ulterior motives to strengthen his case has managed to file instant criminal application only to pressurize and cause harassment to the accused.
9. Learned counsel for accused further contended that subject controversy is already sub-judice before this Court in Civil Suit No.649/2004, whereby Nazir was appointed to collect details of properties and accounts and also appointed .Mr. Justice (R) S. Ali Aslam Jaffery as sole Arbitrator, who vide order dated 01.03.2014, directed the parties to expedite the process of the recording of evidence and its conclusion. He further contended that the date of incident in FIR is mentioned as unknown, which was lodged on 04.08.2012. This shows mala fide on the part of the complainant as such instant application is liable to be dismissed being devoid of any merits. He relied upon the case of Central Bank of India ) Ltd v. P.D Shamdasani AIR 1938 Bombay 33, wherein it was observed that usually inspection should only be given of particular documents shown to be relevant, and not of documents in bulk i.e. The bank pursuant to the order produced a lorry filled of books. He relied upon the case of Hail Muhammad Latif v. Farman All and another 1990 SCM R 1299, wherein the Hon'ble Supreme Court has observed that a Civil Suit with regard to the loan was pending between the parties and matter on mutual consent of the parties the matter was referred to arbitration which on an appeal on technical point was pending before the High Court. The matter involved in the petition was purely of civil nature. Order of High Court regarding the quashment of criminal proceedings against respondent thus needed no interference. The case law cited by the learned counsel for the accused are distinguishable as in present case the quashment application was dismissed by this Court.
10. Perusal of the available record and consideration of the arguments reflect that the petitioner is investigating the case vide FIR No.195 of 2012, whereby the complainant has alleged the commission of embezzlement of amount of the firm M/s Islam Brothers, by the accused who instead of depositing cheques in the account of the firm, has been depositing the same in their personal accounts. The petitioner has traced out 18 accounts of the accused persons which were opened in respondent banks, but the required details were not provided to him.
11. It is significant to mention that the widow of one partner brother filed Civil Suit No.649 of 2004, which is still sub judice before this Court, whereby Nazir was directed to take over the affairs of the company along with the assets, and Mr. Justice (R) Ali Aslam Jaffery was appointed as sole Arbitrator to decide the matter relating to movable and immovable properties as well as ostensible business/partnership accounts. During the pendency of civil proceedings, the complainant has lodged instant FIR and the petitioner has been investigating the allegations of embezzlement and misappropriation of the accounts of the firm. The petitioner has filed interim Challan before the concerned Court and charge has been framed against the accused persons, but the same would not debar the process of investigation to collect further necessary evidence.
12. The bone of contention related to the controversy is that whether the required, permission can be granted at this stage or otherwise. It is worthwhile to mention that section 94(b), Cr.P.C.
Empowers the High Court to grant permission to police to investigate the question of embezzlement and misappropriation of the money allegedly belonging to the claimant, therefore, while granting such permission Court has to exercise such powers compassionately, keeping in mind the fairness and transparency of the process of investigation. Furthermore, accused persons allegedly committed cheating and dishonestly deposited the amount in the accounts other than the account of the firm. The Investigating Officer has already discovered 18 such accounts and collected their details to complete the process of investigation so that the final Challan may be submitted. At this stage, if on mere plea of pendency of civil suit, the process of investigation is restricted and the prayed permission is declined, it would defeat the very purpose of the investigation and cause deviation from the settled norms of administration of criminal justice.
13. It is well settled that the institution of civil proceedings place no restriction or embargo upon the lodgment of FIR against the accused regarding the commission of fraud, cheating and misappropriation by the party defrauded. Likewise, the pendency of the civil suit will also not obstruct and hamper the process of the investigations to collect the necessary and essential evidence from the concerned forums. Through the civil suit the aggrieved person can seek the settlement of the accounts and recovery of deprived amount, while by the lodgment of FIR the accused be punished for committing the offence of cheating, fraud and misappropriation of the amount. Therefore, the civil proceedings and the criminal prosecution pertaining to the same cause of action or dispute can be continued simultaneously before the appropriate forums and the criminal proceedings could not be stopped for the final decision of the civil proceedings or vice versa.
14. For the reasons depicted supra, instant criminal miscellaneous application stands allowed as prayed and the permission in the terms of section 94(b), Cr.P.C. Is granted and respondents are directed to provide all required details of accounts to the petitioner instantly.