1. ' Applicants abovenamed have filed the above petition under section 561-A, Cr. P. C., seeking directions for stay of case, State V. Nasib Khan and others, vide F. I. R. No, 273/81, in the Court IX Additional Sessions Judge, Karachi, on the following facts and grounds :- ' Brief facts of the case are, that complainant Nasib Khan son of Fateh Muhammad submitted an application to S. P., A. C. E., Karachi dated 11th November, 1981 alleging therein that he and one Ch. Mumtaz have transport business. Ch. Mumtaz wanted to involve him and his brother falsely in a criminal case. The said Mumtaz instigated A. S.-I. Mairaj Shah of P. S. Joharabad after giving bribe of Rs, 5,000 to register a false case against him and his brothers namely Yaqoob, Nasir and Altaf.
2. The said A. S.-I. On 2nd October, 1981, with the collusion of said Ch. Mumtaz registered a false case, vide F. I. R. No, 273/81 under section 365/34, P. P. C. Through his driver Safeer. The facts made for this case that on the said date Mini Bus WagoncMazda No, 345-191 belong to us was forcibly kidnapped with his said driver. In this case A. S.-I. Arrested him as well as his brother Altaf and took personal search. From their search Rs, 7,064/50 cash, one wrist watch Rado, one ring of gold, one bill of poultry etc. Were recovered from his personal search and Rs, 1,431 in cash, key of Motor Cycle, key of show-case, one Note Book, etc. Were recovered from the personal search of his brother Altaf. Again on 27th October, 1981 in the evening A. S.-I. Mairaj came to their shop situated at Water Pump and arrested his brothers namely Yaqoob and Muhammad Naseer and took them to the Police Station and kept them confined in the Police Station, when they were already on bail from the Court in the above-noted cases registered by the A. S.-1. On the instigation of Ch. Mumtaz. That on the above- mentioned date after enquiry, he had gone to the Police Station Joharabad alongwith Haji Shabbir, Gulistan and Nawaz where he found A. S.-1. Mairaj Shah present and his two brothers were sitting in the lock-up. He enquired from the said A. S.-I., who demanded a bribe of Rs, 5,000 for their release.
3. On this he hardly arranged Rs, 3,000 after getting Rs, 1,000 from Gulistan and Rs, 1,200 from Haji Shabbir and balance of Rs, 800 from his own pocket. The balance of Rs, 2,000 was promised to be paid later on, but on the next day he submitted an application to the A. I.-G. Police, Karachi and did not pay the same. That after 3/4 days one Taxi driver namely Zaman told him that the kidnapping case was registered by A. S.-I. Mairaj Ali on the instigation of Ch. Mumtaz after taking bribe of Rs, 5,000 and on 27th October, 1981 his brothers were detained wrongfully by A. S.-I. After acceptance of Rs, 2,000 also quoted the name of one Ghulam Muhammad, who had gone to P. S. Joharabad and had seen the recovery of the articles and cash from his personal search and his brother's personal search.
4. ' The above-referred application was marked to D. S. P. Mr. Abdul Razzaq for verification and accordingly the applicant Mr. Nasib Khan was examined, who confirmed the contents of his application. After that Mumtaz the D. S. P. After obtaining permission from S. P., A. C. E., Karachi made open enquiry into the matter. After making open enquiry, the D. S. P. Prepared C. F. R. With the recommendation to register a case against A. S.-I. Mairaj Ali and Ch. Mumtaz and after obtaining permission for registration of the case, the D. S. P. Registered the above case and investigated. After completion of the investigation the D. S. P. Abdul Razzaq found, that applicant A. S.-I. Mairaj Ali of Joharabad and Ch. Mumtaz have committed offences punishable under section 161/217/218/ 409/120-B, have been committed by them, therefore this case was placed before Anti-Corruption Committee No, HI in its meeting on 6th July, 1982 and the Committee decided that both the above- mentioned applicants should be prosecuted in the Court of Law.
5. ' The learned Advocates of the parties in view of the law laid down by Honourable Supreme Court in case reported in 1972 SCM R 473 agreed that by consent learned trial Court be directed to record the evidence, but not to pronounce any judgment till disposal of civil suits pending between the parties, in respect of offences under section 17 (3), Hudood Ordinance, 468/471, P. P. C. They further agreed, that case in respect of 365/34, P. P. C. May be tried and disposed of by learned trial Court, as this case has no bearing at all with the results of the civil suits filed by both the parties, in respect of truck in question.
6. ' As far as disposal/custody of truck in question, both the learned Advocates agreed, that keeping in view judgment dated 5th October, 1982 passed on Criminal Miscellaneous Application 186/82 and order of Honourable Supreme Court in Petition No, 1254/82, approximate orders may be passed, as it may be deemed fit by this Court.
7. ' 1 have carefully considered the above submissions of the learned counsels before me and have gone through the F. I. R., judgment in Criminal Miscellaneous 186/82 and taken into consideration orders of the Hon'ble Supreme Court passed on Petition K-54/82. I have also taken into consideration that Civil Suits 641/81 and 261/82 filed by both the parties are also pending disposal, in this Court on original side, in respect of alleged ownership of truck.
8. In view of the law laid down by the Honourable Supreme Court in case reported in 1969 P Cr. L J 411 and others, the case against the present applicants in respect of offences under section 17 (3) of Hudood Ordinance. 1979 and under section 468/471, P. P. C. Will have to be stayed pending disposal of two civil suits namely Civil Suits Nos. 641/81 and 261/82 filed by both the parties, which are pending disposal in this Court, on the original side. In view of this, keeping in view the provisions section 235, Cr. P. C. Part 11, it is not necessary that the applicants be tried for all the charges levelled against them at one trial, as in my opinion the said section is enabling section and not mandatory and consequently in the interest of justice, I would direct the learned trial Court to separate the charges against the applicants in respect of section 365/34, P. P. C. And try them separately in respect thereof from other charges levelled against the applicants in F. I. R. No, 273/81, as staying of trial on this account would be unfair to the applicants, as the civil suits between the parties in respect of dispute of ownership of the truck in question are bound to take considerable time, before they are finally disposed of.
9. ' Therefore I direct the learned trial Court as follows :-
(a) to try the applicants in respect of alleged offences committed by them under sections 365/34, P. P. C., vide F. I. R. 273/81 separately and immediately proceed with the said portion of trial and dispose of the same within 4 months from the receipt of the copy of this order, on merits, in accordance with the law.
(b) to stay the trial of the applicants in respect of offences under section 17 (3), Hudood Ordinance, 1979 and under section 468/471, P. P. C. Connected therewith, pending final disposal of civil suits Nos. 641/81 and 261/82, which are pending on the original side of this Court. However, the learned trial Court is also directed, that before staying the proceedings for the result of the decision in the civil suits in question, to record all the evidence that may be produced by the prosecution as well as applicants in respect of these charges also, within 4 months from the receipt of the copy of this order, but not to pronounce any judgment in these proceedings, till final disposal of the above- mentioned two civil suits pending between the parties, regarding the ownership of the truck in question.
(c) In view of judgment dated 24th August, 1982 of my learned brother B. G. N. Kazi, J. In Criminal Miscellaneous Application No, 186/82, by which order, dated 7th March, 1982 of the learned Vth Additional Sessions Judge, Karachi passed in Criminal Revision Application No, 253/81 was confirmed, by which the learned trial Court was directed that the mini bus (truck) in question be kept in custody of the police till the parties get their title established from civil Court of the competent jurisdiction, the learned trial Court has no jurisdiction to pass any orders in respect of said mini bus (truck) by handing over the same on Superdag-i-Nama to either parties and consequently to dispose of any such applications which may be pending before the learned trial Court, in the light of the orders dated 7th March, 1982 of the learned Vth Additional Sessions Judge, Karachi, which was upheld by this Court in Criminal Miscellaneous Application No, 186/82.
10. ' However, before parting with the above matter I would like to make it clear, that both the parties are at liberty to move any appropriate applications which they may deem fit. In the two civil suits in question, for getting possession of the mini bus (truck) in question, pending disposal of the said suits and the learned trial Court shall implement such decision if and when communicated to it and are brought to its notice by either parties.
11. ' The above petition stands disposed of in terms of the above judgment.