MUHAMMAD SAJID MEHMOOD SETHI, J. This consolidated order shall dispose of instant petition alongwith following connected petitions as common questions of law and facts are involved in these cases:-
1. W.P. No. 254091 of 2018 titled Abid Ahmad Khan Bhatti v. Federal Board of Revenue, Islamabad through its Chairman & others .
2. W.P. No. 254096 of 2018 titled Abdul Latif v. Federal Board of Revenue, Islamabad through its Chairman and others .
3. W.P. No. 254101 of 2018 titled Tanveer Maqbool v. Federal .Board of Revenue, Islamabad through its Chairman & others .
4. W.P. No. 254103 of 2018 titled Muhammad Amjad Hanif v. Federal Boar d of Revenue, Islamabad through its Chairman & others.
5. W.P. No. 2541 12 of 2018 titled Abdul Hameed v. Federal Board of Revenue, Islamabad through its Chairman & others.
6. W.P. No. 254127 of 2018 titled Irfan Qamar v. Federal Board of Revenue, Islamabad through its Chairman & others .
7. W.P. No. 11912 of 2019 titled M/s. KLK Textile (Pvt) Limited & others v. Federal Board of Revenue, Islamabad through its Chairman & others .
2. Through instant petition, petitioner seeks quashment of criminal proceedings/FIR No. 02 of 2018, dated 30.11.2018, registered against petitioner by respondents, with the following prayer:- "It is therefore, most respectfully prayed in consideration of foregoing submissions and in the interest of equity , justice besides propriety as well as fairness that: The writ petition may graciously be accepted. The impugned FIR No. 2-2018, dated 30.11.2018 registered by respondent No. 3 at the behest of and in connivance with respondents No. 1 & 2 be graciously set aside, quashed for being unconstitutional, violative of fundamental rights, ultra vires of the Sales Tax Act, 1990 and declared illegal as well as Without lawful authority.
It is also prayed that in the meanwhile the operation of the impugned FIR No. 2-18 dated 30.11.2018 registered by respondent No. 3 may graciously be suspended with the direction to the respondents to restrain from taking any adverse and coercive action against the petitioner as well as harassment, till the decision of the present matter by this Hon'ble Court, in the interest of equity and justice besides propriety ."
3. Learned counsel for petitioners, at the very outset, submit that issue in hand has already been settled by learned Division Bench of this Court in Taj International (Pvt.) Ltd. and others v. Federal Board of Revenue and others (2014 PTD 1807 ), later on followed by this Court in a number of cases including Kashif Zia v. Federation of Pakistan, etc. (W.P. No. 34364 of 2015), E.M. Textile Mills and others v. Federal Board of Revenue and others (2017 PTD 1875 ), Muhammad Saeed, etc. v. The State etc. (W.P. No. 11106 of 2016) and Mts. Firdous Cloth Mills (Pvt.) Limited & others v. Federation of Pakistan & others (ICA No. 913 of 2015), therefore, these petitions may also .be decided in terms of decisions referred above.
4. Conversely , learned Legal Advisors for respondents submit that tax fraud has been committed by petitioners by suppressing the sales and actual stock. They add that assessment of tax and completion of assessment proceedings are not pre-requisites for initiation of criminal proceedings and as per well-settled principles of law, as civil and criminal proceedings may procee d side by side, thus, FIR is not liable to be quashed. They further submit that decisions per incurium do not constitute binding precedent and in view of conflicting judgments by different Bench of same strength, the matter needs to be decided by a Bench of higher strength. They have placed reliance upon Sh. Muhammad Rafique Goreja and others v. Islamic Republic of Pakistan and others (2006 SCMR 1317 ), Dr. Ghulam Mustafa v. The State and others (2008 SCMR 76), Rana Shahid Ahmad Khan v. Tanveer Ahmed and others (2011 SCMR 1937 ), Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others (PLD 2013 Supreme Court 401), Muhammad lqbal v. Station House Officer and others (2010 PCr.LJ 357), Muhammad Hassan v. Judge Family Court, Bhalwal and another (2008 YLR 1826 ), Naeem Abbas v. Director General, Federal Investigation Agency (FIA), Islamabad and 7 others (2015 PCr .LJ 1592) and Messrs Advance Business System and others v . FOP and others (2015 PTD 2004 ).
5. Heard. Available record perused.
6. Undeniably , High Court as well as learn ed Division Bench of this Court disposed of various cases on the basis of ratio decidendi of T aj International (Pvt.) Ltd., supra . The relevant observations of the said case are as under:-- "28. In of the above, we hold that the pre-trial steps including arrest and detention cannot be given effect to unless the tax liability of the taxpayer is determined in accordance with Section 11 of the Act. In this background, criminal proceedings initiated against the petitioners, and documented as the First Information Report in this case and cases mentioned in Schedule-A is quashed as being unconstitutional, 'violative of fundamental rights, ultra vires the Act and, hence illegal and without lawful authority . For the above reasons all these petitions are allowed . In the light of the above discussion, we see no need to answer the question regarding the jurisdiction or competence of the of ficer who initiated the criminal proceedings in these cases."
The above observations have further been followed by learned Division Bench of High Court, vide order dated 31.01.2018, passed in I.C.A. No. 913 of 2015, which are reproduced hereunder:- "9.... Undoubtedly , whenever civil and criminal cases involve similar or identical subject-matters, the proceedings before the criminal Court must not necessarily be stayed. However , where the subject-matter of both the proceedings is so closely inter-related that outcome of the civil/tax proceedings might have a material bearing on the criminal proceedings, safer course in such a situation is to stay the criminal proceedings till the finalization of civil/tax matter . Especially , when learned Division Bench of this Court in the case of Taj International (Pvt.) Ltd. supra , has ruled that liability of a person under the penal provisions is quite a civil liability , entailing determination of the amount specified in the show-cause notice and without adjudication of liability by the hierarchy of taxing authority created under the Act of 1990, registration of FIR is illegal and without lawful authority ."
10. Learned counsel for respondents has argued that judgment passed by learned Division Bench of this Court in Taj International (Pvt.) Ltd. supra , has been suspended by Hon'ble Supreme Court of Pakistan and leave has been granted. Suffice it to say that when an appeal against order of the High 'Court is preferred before Hon'ble Supreme Court of Pakistan and Supreme Court while granting leave to appeal suspends the operation of the order impugned, such suspension operates only between the petitioner and respondent s and does not detract from the binding effect of the order impugned as precedent unless the impugned order is finally set-aside. Therefore, even if stay has been granted by Hon'ble Supreme Court of Pakistan, the same will apply inter-se parties only, and original order , as far as non-parties are concerned, remains binding on the Courts as precedent.
11 .....
12. Keeping in view the fact that a learned Division Bench of this Court has already ruled and that tax liability has to be determined first before lodging the FIR in the case of Taj International (Pvt.) Ltd. supra , and first appellate authority has partly accepted the pleas of appellants as a result whereof, its liability has considerably been reduced. Since the appeal filed by appellants is pending before learned Appellate Tribunal, we are inclined to dispose of these appeals with the following observations:--
(i) Trial before learned Special Judge shall remain stayed till the decision of appeal filed against the decision rendered in Taj International (Pvt.) Ltd. supra , pending before Hon'ble Supreme Court or pending appeal before Appellate Tribunal, whichever i's earlier .
(ii) If judgment rendered in Taj International (Pvt.) Ltd. supra , is upheld by august Supreme Court or appeal filed by appellants is accepted by Appellate Tribunal, appellants shall be at liberty to approach learned Special Judge seeking acquittal under Section 265-K, Cr .P.C.
(iii) In case allegations levelled in the show-cause notice qua tax fraud are established in the proceedings pending before Appellate Tribunal or decision rendered in Taj International (Pvt.) Ltd. supra , is reversed, the department shall be at liberty to re-activate the criminal proceedings pending before learned Special Judge.
13. Appellate Tribunal shall conclude the pending proceedings within a period of three months from the date of receipt of' certified copy of this order , under intimation to this Court through Deputy Registrar (Judicial)."
7. So far as the submissions of learned Legal Advisors for respondent-FBR, noted in paragraph 3, are concerned, suffice it to say that all those objections have already been dealt with in the case of Taj International (Pvt.) Ltd. supra , hence, same are repelled in the terms thereof.
8. Since the decision in Taj International (Pvt.) Ltd. supra , is under-challenge before Hon'ble Supreme Court, which is still sub judice and respondents have also not initiated any recovery proceedings by issuing show-cause notice/adjudication process, I am inclined to dispose of instant petition as well as connected petitions, following the ratio that proceedings pending pursuant to impugned FIR shall remain stayed till decision either by Hon'ble apex Court or determination of amount due through adjudication process, if any initiated by respondent department through show-cause notice, whichever is earlier , as per observations contained in para 12, reproduced supra .