MUHAMMAD SALEEM JESSAR, J.---By means of instant Criminal Revision Application the Applicant/State has assailed Order dated 22.10.2018, handed down by Special Judge Anti-Corruption (Provincial), at Karachi whereby he allowed five Cr. Misc. Applications bearing Nos. 137, 138, 139, 140 and 141 of 2018, under sections 249/ 249-A, Cr.P.C., filed by accused Muhammad Ahsan, Aamir Rafique, Rana Muhammad Imran, Abdul Mujeeb and Muhammad Ishfaque and Abdul Ghafoor respectively , thereby adjourning the Special Case No.35 of 2017 sine die .
2. Precisely , the facts giving rise to the filing of instant Criminal Revision Applicati on are; that in the year 2009-10 Sindh Government announced a scheme to subsidize the tractors for growers of Sindh having at least 16 acres of land so that agriculture Sector may be optimally tapped to seek more yield from crops. The subsidy was to be given from Rs. 2 to 3 Lac per tractor to the growers. In the year 20092010 and 2011-2012 Department of Agriculture had chosen 9 dealers including Messrs Shahzad Trade Link for the said purpose. Total 14433 Tractors were delivered, out of which 5780 tractors were to be delivered by Messrs Shahzad Trade Link being the leading supplier of the years 2009-2010 and 2011-2012 but he had not delivered the tractors to the growers who were declared successful in balloting, rather by issuing fake invoices as well as sale certificates, he received subsidy amounting to Rs.23,61,00,000/- fraudulently , as he sold tractors to other purchasers on the price of his choice. He engaged many dealers across Sindh province through two dummy companies Messrs AR Enterprises and Messrs MI Enterprises, which were got registered in the names of his employees namely Amir Rafiq and Muhammad Imran and got the tokens from growers and, used fake invoices and claimed subsidy , fraudulently .
Those invoices were not in accordance with prescribed scheme as numbers of pay orders/demand drafts were missing. The amount for payment of subsidy was processed by the Directors Engineering Agriculture Department without considering the missing of pay orders/demand drafts numbers on invoic es, .hence they had also been found involved in facilitating commission of the alleged offence, thus accused in collusion with each other usurped the subsidy of Rs.2 to 3 lac per tractor , therefore FIR No.29/2017 was got registe red at P.S. ACE, Karachi under sections 109/409/420/467/471/34, P.P.C. read with section 5(2) of Prevention of Corruption. Act, II, 1947, which culminated in Special Case No.35 of 2017 (State v. Shahzad Riaz and others ). During the pendency of the said case, abovesaid six accused moved applications under sections 249/249-A, Cr.P.C. which were allowed by the impugned order and consequently , the said case was adjourned sine die, hence this Criminal Revision Application by the State.
3. I have heard learned counsel for the Applicant /State, learned counsel appearing for respondents Nos.1 and 51, 23 and 52, and have also perused the material available on the record.
4. Mr. Nasrullah Korai, Advocate for the applicant submitted that FIR No. 29/2017 was got registered by applicant/complainant Inspector Zahid Hussain Mirani, ACE, Sindh, Karachi on behalf of the State under sections .109, 409, 420; 467, 468, 471 and 34, P.P.C. (vide page No.41). He further subm itted that since the nominated accused as well as those who subsequently joined by the investigating officer were highly influential, therefore, could not be arrested by the police: however , after completion of legal formalities. challan against them was filed by the I.O. on 01.08.2017 (vide page No. 45) in their absentia as required by section 512, Cr.P.C. Subsequently , the case was registered and instituted as Special Case No. 35/2017 before the trial Court/Special Judge, Anti- Corruption (Provincial), Karachi (Re-The State v. Agha Abdul Qadir and others). He next submitted that Provincial Government / applicant/ complainant also filed Civil Suit No. 1570/2017 before this Court on 12.06.2017 (Annexure-E available at page No.175) (re-Province of Sindh through Secretary Agriculture Department v. Shahzad Riaz and others), which is still pending. After filing of the Suit, some of the respondents/accused namely , Muhammad Ahsan (Criminal Misc. Application No.137/2018), Aamir Rafique (Criminal Misc. Application Nop 138/2018), Rana Muhammad Imran (Criminal Misc. Application No.139/2018) Abdul Mujeeb and Muhammad Ishaque (Criminal Misc. Application No. 140/2018) and Abdul Ghafoor Shaikh (Criminal Misc. Application No. 141/2018), filed separate Criminal Misc. Application(s) before the trial Court under section 249 as well under section 249-A, Cr.P.C. for stoppage of the proceedings as well premature acquittal. He next submitted that after filing of Criminal Misc. Application(s) and hearing the parties, trial Court has disposed of the same vide impugned order dated 22.10.2018 (Annexure-A available at page No. 29) in following terms: "In view of above facts and circumstances, I am of the humble opinion that unless the issue of cheating and fraud is decided by honourable Sindh High Court, this Court could not be able to reach at just and proper conclusion of any cheating and fraud committed by accused as alleged. Therefore, it would be appropriate to deicide this case after disposal of said suit, till then matter is adjourned sine die. All accused are present on bail except accused Ishaq Shaikh and Muhammad Ayoob, their absence is condoned on applications filed on their behalf."
5. He further 'submitted that there is no legal bar to the continuation of civil as well as Criminal proceedings side by side. He next submitted that respondents though had been served, have failed to file their written statements or objections as the criminal proceedings pending against them (vis-a-vis Special Case No. 35/2017) has been adjourned sine-die. He, therefore, submitted that impugned order suffers from legal infirmity as well as illegality , and cannot be maintained. He, therefore, submitted that by allowing instant Criminal Revision Application, impugned order may be set aside and the respondents may be directed to be proceeded with their trial. He next submitted that huge amount of the national exchequer has been misappropriated and such loss has been caused to the Provincial Government. In suppor t of his contention, he has placed reliance upon the case of A. Habib Ahmed v. M.K.G. Scott. Christian and 5 others (PLD 1992 Supreme Court 353), a Full Bench Judgment, and submitted that such practice was deprec ated by honourable Supreme Court of Pakistan. He also placed reliance upon the case of Seema Fareed and others v . The State (2008 SCMR 839 ) on same point.
6. On the other hand, Mr. Khawaja Shams-ul-Islam, Advocate for respondents Nos.l and 51 opposed the Criminal Revision Application on the ground that there is no illegality or infirmity in the impugned order , therefore, Revision Application filed by the complainant merits no consideration. He next submitted that alleged incident, as is manifest from FIR No. 29/2017, is said to have taken place on 2009 to 2012; whereas, FIR in question was got registered by the State on 04.05.2017 at 1615 hours. He further submitted that Messrs MTW Pak Assembling Industries (Pvt.)
Ltd., filed C.M.A. No. 8750 in Suit No. 1297 of 2016 and C.M.A. No. 2473 in Suit No. 660 of 2017 before this Court against his clients/respondent No.1 which was decided in his favour on 17th May, 2017. He next submitted that case has been reported as 2017 CLC 1140. He further pointed out that said case was heard on 11th, 12th 13th April and 2nd May, 2017 and was reserve d for Order; however , FIR in question was got registered on 04.05.2017, two days later after final hearing of the case of MTW Pak Assembling Industries (Pvt.) Ltd. (Supra). He further argued that list of beneficiaries annexed by the applicant with his application is available from pages Nos. 75 to 121, which reveals names of beneficiarie s; however , none from them has been arrayed as accused in this case; such being malicious practice, the same will fruit nothing for the prosecution /complainant except wastage of time of the Court as well as hot time for respondents/accused. He further submitted that until Civil Suit filed by the applicant/complainant before this Court is decided, the proceedings adjourned to sine die by the trial Court shall remain intact as large number of people arrayed as accused may be saved from unnecessary harassment as well as their being dragging in false case. He further submitted that respondents/accused were granted bail by this Court which was assailed by the applicant/complainant before the apex Court through Criminal Petition No. 56-K of 2018, which was dismissed as withdraw n on 14.03.2019. In support of his contention, he has placed on record photo copy of the said Order passed by the honourable Supreme Court which was taken on record. He, therefore, prayed for dismissal of the Revision Application.
7. Mr. Nadir Khan Burdi, Advocate for respondent No.52 also opposed Criminal Revision Application and submitted that there is no illegality in the impugned order; hence he also prayed for dismis sal of Revision Application. He further submitted that honourable Supreme Court of Pakistan in the case of Muhammad Akbar v. The State and Maulvi Muhammad Yasin Khan (PLD 1968 Supreme Court 281) has held that criminal proceedings should be stayed pending decision of the Civil Suit. He further placed reliance upon the case of Muhammad Aslam v. The State (2017 SCMR 390 ) and the case of Abdul Haleem v . The State and others (1982 SCMR 988 ).
8. In rebuttal, Mr. Nasrullah Korai, Advocate for the applicant, submitted that arguments advanced by learned counsel for respondents require deeper appreciation through recording of evidence. He next submitted that it will be appropriate for all the parties to lead evidence instead of choosing shortcut routs. He emphasized that if the impugned order is not be set aside and the criminal proceedings are stayed in such cases, then entire judicial system will be collapsed and every accused would come and seek premature acquittal or restraining order from the Superior Forum. He lastly submitted when there is no stay or restraining order operating in the Civil Suit, then adjourning the criminal case sine die is not justified.
9. From the perusal of impugned order , it reveals that the same has been passed on the sole ground that unless the issue of cheating and fraud is decided by this Court in Suit No.1570 of 2017 filed by Province of Sindh through Secretary Agricultural Department, the trial Court could not be able to reach at just and proper conclusion of any cheating and fraud allegedly committed by 'the accused, therefore, it would be appropriate to decide the criminal case after disposal of said suit. It would be advantageous to reproduce hereunder the relevant observations of the trial Court made in the impugned order: "Needless to mention here that Shere is no bar that civil suit and criminal case may not be proceeded simultaneously . But according to my humble view, where findings of criminal case is based upon the findings of civil suit, hence in order to avoid from conflicting judgments, it is expedient to stay the criminal case until decision of civil suit. In this regard guidance can be taken from the case law reported in 2017 SCMR 390 , wherein it was held that:- "---Concurrent civil and criminal proceedings---Stay of criminal proceedings---Scope---No universal principle that whenever a civil suit and a criminal case involved similar or identical subject matters the proceedings before the criminal court must necessarily be stayed---"
Since issue before civil Court goes to the root of this case, hence to avoid from conflicting judgment, it is better for this Court to adjudicate the issue of cheating and fraud unless same is decided by honourable Sindh High Court. At this stage guidance can be taken from the case law reported in PLD 1968 Suprem e Court 281, wherein it was held that:- "---Normally criminal proceedings should not be postponed pending the disposal of civil litigation connected with the same subject-matter . But where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so intimately connected with it that there is a danger of grave injustic e being done in the case if there be a conflict of decision between the civil Court and the criminal Court then in such event it is equally clear that the criminal Court has not only the right to but should also stay its hands until the civil litigation is disposed of, for, it is not desirable that when the title to the property itself is in dispute, the criminal Courts should give a finding in respect of the same question---"
In view of above facts and circumstances. I am of the humble opinion that unless the issue of cheating and fraud is decided by honourable Sindh High Court, this Court could not be able to reach at just and proper conclusion of any cheating and fraud committed by accused as alleged. Therefore, it would be appropriate to decide this case after disposal of said suit, till then matter is adjourned sine die."
10. In view of above, the only point to be decided in this Criminal Revision Application is as to whether criminal and civil proceedings relating to same case/transaction could be proceeded with side by side/simultaneously or not and as to whether both continuation of criminal as well as civil proceedings simultaneously , any miscarriage of justice would be caused to the accused/respondents?
11. In order to determine this issue, it would be appropriate to refer to the dictum laid down by the Superior Courts on this point.
12. On this point learned counsel for the respondent placed reliance on the cases reported as Muhammad Akbar v.
The State and another (PLD 1968 SC 281), Abdul Haleem v. The State and others (1982 SCMR 988) and Muhammad Aslam v . The State and others (2017 SCMR 390 ).
13. The decision in the first case of Muhammad Akbar (supra) honourable Supreme Court, while dealing with similar situation, held as under: "Normally it is true, that criminal proceedings should not be postponed pending the disposal of Civil litigation connected with the same subject-matter . But where it is clear that the criminal liability is dependent upon the result of the Civil litigation or is so intimately concerned with it that there is a danger of grave injustice being done in the case if there be a conflict of decision between the Civil Court and the Criminal Court. In such event it is equally clear that the Criminal Court has not only the right to but should also stay its hands until the Civil litigation is disposed of, for, it is not desirable that when the title to the property itself is in dispute, the Criminal Courts should give a finding in respect of the same question."
It was further held as under: "There can be no doubt that the High Court has this power under section 561-A, Cr. P. C. but the only question is as to whether it should exercise this powe r where civil proceedings in respect of the same or substantially the same subject-matter are also pending. There is now consensus of opinion that there is no invariable rule that a criminal proceeding should be stayed pending the decision of the Civil suit but the matter is one of discretion entirely . In exercising this discretion the guiding princ iple should be to see as to whether the accused is likely to be prejudiced if the criminal proceeding is not stayed. In case of disputed title where it is difficul t to draw a line between a bona fide claim and the criminal action alleged, a stay can be made in the proper exercise of that discretion."
14. In the second case of Abdul Haleem (supra) honourable Supreme Court held as under: "The respondent moved the High Court under section 561-A of the Criminal Procedure Code for quashing the criminal proceedings mainly on the ground that the dispute between the parties was primarily of a civil nature. As already stated, this prayer was allowed by the High Court on the 14th of May , 1975.
Leave to appeal was granted to examine the contention that the initiation of civil litigation between the parties could not negative the allegation made by the appellant that the two respondents had forged the agreement of sale, and that the quashment order made by the High Court had the effect of stifling their prosecution against the established principles of the administration of criminal justice in such matters.
In support of these submissions Mr. Muhammad Nawaz, learned counsel for the appellant, has drawn our attention to Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317), Muhammad Akbar v. State (PLD 1968 SC 281), Muhammad Ahmed v. State (1972 SCMR 85), Dodo Khan v. Jalaluddin and another (PLD 1973 Karachi 564), Manzoor Hussain and another v. Manzoo r Hussain (PLD 1974 Lahore 202), Ghulam Akbar v. Muhammad Ilyas (PLD 1975 Karachi 231) and Muhammad Tufail v. The State and another (1979 SCMR 437), all of which purport to lay down that the mere pendency of civil litigation does not have the effect of negativing the criminal liability of the accused, if the facts alleged disclose the commission of criminal offences, even if the impugned documents are the same in both civil and criminal cases. The general rule approved in these authorities is to the effect that it may, however , be advisable to stay criminal proceedings until the conclusion of civil litigation between the parties so as to avoid a conflict of findings on the same questions by civil and criminal Courts."
15. The last case of Muhammad Aslam (supra), although has been relied upon by learned counsel for the respondent, but perusal of the same shows that the same goes against the respondents and, rather , it supports the plea of the applicant. In fact, in the said case it was observed by honourable Supreme Court that there is no universal principle that whenever a civil suit and a criminal case involved similar or identical subject matters, the proceedings before the criminal court must necessarily be stayed.
16. Now dealing with the case-law relied upon by learned counsel for the Applicant/State, it seems that he has relied upon the cases reported as A. Habib Ahmed v. M.K.G.Scott Christian and 5 others (PLD 1992 Supreme Court 353) and Seema Fareed and others v. The State (2008 SCMR 839). In the case of A. Habib Ahmed (supra), while dealing with the said point, it was 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 learn ed counsel for the appellants 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. See the case of Abdul Haleem v. The State (1982 SCMR 988 ) wherein this rule was followed.
In the light of the foregoing discussion we allow these appeals, set aside the impugned judgments and direct that the accused/respondents shall be tried by the Special Courts (Banks) for Offences under the Banks (Special Courts) Ordinance IX of 1984. It is further directed the proceedings before the said Court shall remain stayed till the decision of the civil matter , the information regarding which decision, would be laid before the Criminal Court by the parties concerned including the appellants."
17. Again the same situation has arisen i.e. although the above case of A. Habib Ahmed (supra) has been relied upon by learned counsel for the Applicant/State but, on the other hand, it supports the case of the respondents that in such like situation the proceedings in the Criminal Court would remain stayed till the decision of the Civil Court .
18. Next case relied upon by the learne d counsel for the Applicant State is Seema Fareed and others v. The State and another reported in 2008 SCMR 839 wherein honourable Supreme Court held as under: "It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability . While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction ."
19. In this connection it would be advantageous to refer to the judgment passe d by five honourable Judges of Supreme Court of Pakistan in the case of Sheikh Muhammad Naseem v. Mst. Farida Gul reported in 2016 SCMR 1931 wherein it was held under:- "In the impugned judgment, it was also held that where -civil litigation with regard to illegal dispossession from immovable property is pending between the parties, the proceedings under the Illegal Dispossession Act, 2005 cannot be maintained. This finding is also based on the decision of the Lahore High Court in Zahoor Ahmed's case (PLD 2007 Lahore 231), reasoning of which was adopted by three member bench of this Court in Bashir Ahmed's case (PLD 2010 SC 661). We are of the 'view such a finding is also not sustainable in law. Any act which entails civil liability under civil law as well as criminal penalty under criminal law, such as the Illegal Dispossession Act, 2005 then a person can be tried under both kinds of proceedings, which are independent of each other . Once the offence reported in the complaint stands proved against the accused within the confines of the provisions of the Illegal Dispossession Act, 2005 then he cannot escape punishment on the ground that some civil litigation on the same issue is pending adjudication between the parties . No one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property and then seek to thwart the criminal proceedings initiated against him under the Illegal Dispossession Act, 2005 on the pretext that civil litigation on the issue is pending adjudication between the parties in a court of law. Therefore, irrespective of any civil litigation that may be pending in any Court, where an offence, as described in the Illegal Dispossession Act, 2005, has been committed, the proceedings under the said Act can be initiated as the same would be maintainable in law".
(Emphasis is supplied for the sake of convenience)
20. Yet in another case reported as Muhammad Aslam v. The State and others (2017 SCMR 390), honourable Supreme Court held as under: "The law is settled that there is no universal principle that whenever a civil suit and a criminal case involve similar or identical subject matters the proceedings before the criminal court must necessa rily be stayed and a reference in this respect may be made to the cases of Syed Muhammad Ahmad v. The State (1972 SCMR 85), Muhammad Akbar v. The State and another (PLD 1968 SC 281), Soofi Muhammad Anwar v. Mst. Badshah Begum and 6 others (1999 SCMR 1475 ), M. Aslam Zaheer v. Ch. Shah Muhammad and another (2003 SCMR 1691 ), Rafique Bibi v. Muhammad Sharif and others (2006 SCMR 512), Haji Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192), Abdul Ahad v. Amjad Ali and others (PLD 2006 SC 771) and Seema Fareed and others v. The State and another ( 2008 SCMR 839 )."
21. In the case of Sheikh Muhammad Nafees v. Additional Sessions Judge Hafizabad reported in 2010 PCr.LJ 1442 [LAHORE] it was held as under: "Respondents/accused contended that during pendency of civil suit, criminal proceedings could not be initiated about the same matter between the same parties and that the petitioner had filed complaint to pressurise them. Pendency of civil suit was no bar to initiation of criminal proceedings and both civil and criminal cases could proceed simultaneously ."
22. In view of above legal position, it is clear that there is no legal bar if both, civil as well as criminal proceedings, relating to same or similar/identical subje ct-matter proceed simultaneously . Even in those cases which have been relied upon by learned counsel for the respondents/accused, the ratio decidendi is that there is no universal principle that whenever a civil suit and a criminal case involve similar or identical subject matters, the proceedings before the criminal court must necessarily be stayed. In the first case of Muhammad Akbar (supra) relied upon by learned counsel for the respondent honourable Supreme Court held, "Normally it is true, that criminal proceedings should not be postponed pending the disposal of Civil litigation connected with the same subject-matter"........... "There is now consensus of opinion that there is no invariable rule that a criminal proceeding should be stayed pending the decision of the Civil suit..."
23. In the second case of Abdul Haleem (supra) relied upon by the learned counsel for the respondents, after referring to various decisions of the Superior Courts on this point, it was observed. "....all of which purport to lay down that the mere pendency of civil litigation does not have the effect of negativing the criminal liability of the accused, if the facts alleged disclose the commission of criminal offences, even if the impugned documents are the same in both civil and criminal cases."
24. The third case of Muhammad Aslam (supra) relied upon by learned counsel for the respondents, as stated above, goes against the respondents and, rather , it supports the plea of the Applicant/State. In fact, In the said case it was observed by honourable Supreme Court that there is no universal principle that whenever a civil suit and a criminal case involved similar or identical subject matters, the proceedings before the criminal court must necessarily be stayed.
25. Even otherwise, it seems that in the instant case if the criminal proceedings are allowed to be continued, even in such an eventuality , at the trial stage the respondents/accused would be afforded sufficient opportunity of hearing to disprove the allegations levelled against them. Besides, other remedies admissible under the law, they would also be entitled to initiate appropriate proceedings against the complainant and/or other responsible persons; besides making claim for awarding compensation to them, if ultimately it is found and concluded that the allegations levelled against them were frivolous and vexatious and had been filed with ulterior motives only to victimize the respondents/accused. In the case of Noor Muhammad v. The State and others reported in PLD 2007 SC 9 , honourable Supreme Court held as under: "Moreover , section 250, Cr.P.C. also provides sufficient safeguard to an accuse d against la false and frivolous accusation by the complainant, which envisages that the court while acquitting an accused at the trial stage, holding that the charge brought against him, was false, frivolous or vexatious has sufficient power to award adequate compensation."
26. The upshot of above discussion is that in view of aforesaid factual as well as legal position, instant Criminal Revision Application is allowed. Consequently , the impugned Order dated 22.10.2018, handed down by Special Judge Anti-Corruption (Provincial), at Karachi whereby he allowed five Cr. Misc. Applications bearing Nos.137, 138, 139, 140 and 141 of 2018, under sections 249/249-A, Cr.P.C. filed by accused Muhammad Ahsan, Aamir Rafique, Rana Muhammad Imran, Abdul Mujeeb and Muhammad Ishfaque and Abdul Ghafoor respectively , thereby adjourning the Special Case No."35 of 2017 sine die, is hereby set aside and the matter is remanded back to the trial Court with direction to proceed with the trial of the case on merits against all the accused persons, including the respondents; herein.
27. Since the case is old one, therefore, the learned trial Court is directed to expedite its trial and conclude it within shortest possible time under intimation to this Court through MIT -II.