This is a reference from the learned Additional Sessions Judge, Lahore, recommending the setting aside the order of the District Magistrate, dated 16-1-1965 and remanding the case to the District Magistrate for a fresh decision on merits.
2. The facts of the case as stated in the reference are as follows :-- A case under section 325/34, P. P. C. was pending in the Court of Khawaja Muhammad Yousaf, Magistrate 1st Class, (empowered under section 30, Cr. P. C.), Lahore against Ghulam Panjtan and others. Ghulam Panjtan was enlarged on bail on furnishing security in the sum of Rs. 1,000.
Muhammad Khalil Khalid stood surety. Ghulam Panjtan, however, failed to appear in Court. A notice was issued to Muhammad Khalil ? Khalid, surety, to produce Ghulam Panjtan. Muhammad Khalil Khalid undertook to produce Ghulam Panjtan on 22-6-64. On 22-6-64 he expressed his inability to produce Ghulam Panjtan. Thereupon, the Magistrate took proceedings for forfeiture of the bond. A notice was issued to Muhammad Khalil to show cause why the amount of the security should not be realized.
The surety urged that the whereabouts of Ghulam Panjtan were not known and that he did not wish to show any cause against the realization of the security amount. On 23-6-64, the Magistrate ordered that the amount of Rs. 1,000 be levied as penalty and if the surety failed to pay the amount, the attachment proceedings be taken.
On 5-8-64 Muhammad Khalil Khalid perferred an appeal to the Court of the District Magistrate, Lahore. The appeal was fixed for hearing on 16-1-65. That day, the appellant failed to appear. On 16-1-65 the learned District Magistrate ordered that on account of non-prosecution the case be consigned to the record-room.
3. It is contended by the learned counsel for the petitioner before me that the appeal before the District Magistrate was under section 515, Cr. P. C. It is contended further that after a criminal appeal is admitted for regular hearing it cannot be dismissed in default but has to be disposed of on merits, even if the appellant is absent or does not avail of the opportunity of being heard. Legally the contention is correct.
The learned State counsel supports reference and submits that the impugned order, dated 16-1- 1965 be set aside and the case be remanded to the District Magistrate.
4. In view of the above discussion the impugned order is set aside and the matter is remanded to the District Magistrate for fresh decision.
Reference accepted.
1912 P Cr. L J 68 [Karachi] Before Dorab Patel, J Kazi FAIZ MUHAMMAD and another--Applicants versus The STATE and another--Opponents Criminal Miscellaneous Application No. 270 of 1971, decided on 3rd July 1971.
Criminal Procedure Code (V of 1898), Ss. 561-A & 344-- Stay of criminal proceedings--Dispute between parties in criminal and civil litigation same--Dispute concerning title to immovable property--Criminal Court, in circumstance, should stay its hands till civil litigation disposed of irrespective of usual delay in disposal of civil litigation--Mere fact that party could seek stay of criminal proceedings under S. 344 or may have some other relief available-- No bar to petition under S. 56I-A if fit case for invoking jurisdiction therein could be made out. [pp. 71, 72]/!, B & C Khawaja RafiuUah v. The State and another PLD 1964 Kar. 311 considered.
Muhammad Akbar v. The State and another PLD 1968 SC 281 rel Maneckji v. Fakhar Iqbal and another 1969 SCMR 193 and Dr. Aziz v. Mst. Isha Rahim and another 1970 P Cr. L J 721 re/.
Shariff for Appellant No. 1.
Nooruddtn Sarki for the State.
A. Rehmati M. Qazi for Respondent No. 2.
Date of hearing : 29th June 1971.
This application under section 561-A, Cr. P. C. arises out of disputes between the applicant and the second respondent about the ownership of land in Deh Sirewari, Taluka Sanghar, District Sanghar of which particulars have been given in para. 1 of the Application. This land was originally owned by one Waris Ali and the applicants' claim to have purchased it from him by a registered sale deed executed on 4th January 1971. They further contend that on the registration of the sale deed they had immediately taken possession of the land purchased by them, constructed an otaq on it and had mutations effected in the revenue records. On the other hand, the second opponent also claims to have purchased the same land from Waris Ali by a registered sale deed the next day that is on 5-1-1971, and his case is that, although he is in possession of the disputed land the applicants, through their Haris, had forcibly tried to eject him. On 10-1-1971 he had therefore lodged an F. I. R. against the applicants at Police Station Perumal under sections 147, 447 and 506, P. P. C. The applicants, who allege political enmity between them and the second respondent, had then tried to lodge an F. I. R. against the second respondent, but their case is that the S. H. O. Perumal was friendly to the second respondent, therefore they were not able to lodge the F.
I. R. and had to file a com plaint directly in the Court of the Mukhtiarkar Khipro. There after, the S. H. O.
Perumal, who appears to have taken great interest in the dispute between the parties, started investigations into the sale-deed on which the applicants rely, and as he came to the conclusion that the sale-deed was a forgery, he himself lodged a complaint against the applicants under section 420/474/ 471/468/109/34, P. P. C. Whilst these complaints were pending, the applicants filed a suit on 22-1-1971 in the Court of the Additional District Judge, Tharparkar at Sanghar for a declara tion that the sale-deed in their favour dated 4-1-1971, was valid, that the sale-deed dated 5-1-1971 in favour of the second respon dent was invalid, and they also sought a permanent injunction to restrain the second respondent from interfering with their possession of the land purchased by them. On the contention that they were in possession of the land purchased, together with the suit, they had also applied for interim relief, and when the suit was admitted the learned Additional District Judge had passed an order of status quo. ' The next stage in the litigation between the parties is that on 31-1-1971 the second respondent lodged another F. I. R. against the applicants under the same offences, as in the first F. I. R. Then, a couple of days later, he filed a civil suit in the same Court, namely, the Court of the Additional District Judge, Tharparkar at Sanghar for a declara tion that the sale-deed in his favour dated 5-1-1971 was valid, that the sale-deed dated 4-1-1971 in favour of the applicants was invalid, that he was in possession of the land purchased and for a permanent injunction from interfering with his possession. Together with the suit this respondent also asked for interim relief to protect his possession. With the consent of the parties, the learned Additional District Judge very properly ordered the consolidation of the two suits filed by the applicants and by the second respondent, and finally on 20th fyf arch 1971, the learned Additional District Judge dismissed the injunction application moved by the applicants in their suit and granted the injunction application moved by the second respondent in his suit. There after, the applicants filed an appeal against the learned Additional District Judge's order of 20-3-1971, which was admitted in this Court on 29-3-1971, and my learned brother Khudabux Marri, J. passed an interim order, which states : "The status quo as to possession should be maintained until the appeal of the applicants shall be disposed of." Finally on 19-4-1971 the applicants filed their application under section 561-A in which they pray that the criminal proceedings instituted against them under the two F. I. Rs. lodged by the second respondent, and the F. I. R. lodged by the S. H. O., Perumal be stayed until the disposal of the civil suits pending before the learned Additional District Judge. This application has now come up for hearing before me.
2. Mr. Shariff appeared on behalf of the applicants and submitted that, as the disputes between the parties in the civil and the criminal litigation were the same, it was proper, bearing in mind the nature of the disputes, that the criminal proceedings be stayed until the civil suits between the parties had been decided ; and in support of this submission he placed reliance on judgments of the Supreme Court reported in Muhammad Akbar v. The State and another (1), Maneckji v. Fakhar Iqbal and another (2) and Dr. Aziz v. Mst. Isha Rahim and another (3). Mr. Nooruddin Sarki appeared on behalf of the State and stated that as the aforesaid judgments of the Supreme Court supported the case of the applicants he agreed with Mr. SharifF's submission. On the other hand, Mr. Rehman Kazi appeared on behalf of the second respondent and pressed for the dismissal of the application on the ground that the applicants had not made out any case under section 561-A, Cr. P. C., and I will now consider the arguments of the learned counsel.
3. I have to repeat here that the criminal complaints filed by the second respondent are principally for criminal trespass and intimidation. As I do not wish to prejudge the case of the parties, I would only observe here that even if the complaint about criminal trespass is not determined exclusively by the finding as to which of the two sale-deeds is valid, that finding will be extremely relevant to the criminal cases filed by the second respon dent, and, if those cases are not stayed, as the possibility of [15] different findings on this issue by the civil and criminal Courts cannot be ruled out, to say the least, this would be unfortunate. Additionally, and this is extremely important, this High Court has been pleased to grant an order about the possession of the disputed land ; therefore, in these circumstances it hardly seems proper that the very question of possession should be allowed to be decided by the criminal Courts. Additionally, as pointed out by Mr. Shariff, both in the civil suits and in the criminal complaints, the Courts will have to examine the sale-deeds on which the parties rely, therefore an obvious difficulty will arise as to how the cases are to proceed if both the civil and criminal proceedings are allowed to continue with the proceeding before them. In these circumstances, the prayer for a stay by the applicants seems to be eminently reasonable.
4. I now turn to the judgments of the Supreme Court on which Mr. Shariff relied. In Muhammad AkbaAs case Hamoodur Rehman, J., as he then was, now the Chief Justice, stated at page 285 as follows :-- "But where it is clear that the criminal liability is dependent upon the result of the civil litigation or is so intimately con nected 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 dis posed 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."
I am in respectful agreement with these observations which, as rightly submitted by Mr. Sarki, fully support the case of the applicants. However, because in the case cited, the civil litiga tion had been instituted before the criminal cases, Mr. Rehman Kazi submitted that the observations quoted were distinguishable. I am not able to agree with Mr. Rehman Kazi's submission. The declaration of the law of the Supreme Court is not subject to any qualification and is fully applicable to the facts of the present case.
5. Mr. Rehman Kazi then submitted that delays in civil litigation were proverbial, therefore, it would not be proper to stay criminal proceedings merely on account of the pendency of civil litigation, specially when the civil litigation had been instituted after the criminal complaints by the second respon dent. As the F. I. Rs. lodged by the second respondent were lodged only a few days before the suit filed by the applicants, the fact that the criminal complaints were filed before the civil suit is not very material. I am conscious of the possible delays in civil litigation. However this very submission that criminal proceedings should not be stayed on account of delays in civil litigation had been raised before the Supreme Court in Maneckji's case, but their Lordships rejected this plea and followed the view taken by them earlier in Muhammad AkbaPs case which I have quoted. Mr. Rehman Kazi then referred me to a judgment of Nana, J. reported in Khawaja Rafiullah v. The State and another (1). In this case on the basis of earlier rulings of the Sind Chief Court, Nana, J. had accepted the argument now advanced and held that criminal proceedings should not ordinarily be stayed when a civil suit has been instituted in respect of the same prosecution. With great respect for the learned Single Judge, he did not have the benefit of the declara tion of the law by the Supreme Court, and in view of the judg ments of the Supreme Court, in my humble opinion, this judgment can no longer be followed.
6. Mr. Rehman Kazi then submitted that it was open to the applicants to move the lower Court for a stay under section 344, Cr. P. C., therefore they were not entitled to invoke this Court's extraordinary jurisdiction under section 561-A, Cr. P. C. Merely because the applicants may have other relief this would not debar them from seeking relief from this Court, and the only question is whether a fit case has been made out for the grant of relief under section 561-A, Cr. P. C. I am aware that the powers of this Court under section 561-A, Cr. P. C. are not to be exercised lightly but, to say the least, having heard Mr. Rehman Kazi's arguments on the question of the conflicting sale-deeds, I have no doubt whatever that this is a fit case for invoking this Court's jurisdiction under section 561-A, Cr. P.
C.
7. Mr. Rehman Kazi then submitted that if the criminal complaints were stayed, as prayed, it would encourage the appli cants to continue with their illegal acts of criminal trespass and intimidation ; and in support of this submission he wanted time to show that the second respondent had been compelled to lodge further F. I. Rs. against the applicants. I refused learned counsel's request for time, and I have to record here that Mr. Shariff denied as false the allegation of the second respondent that the applicants had been breaking the law. Be that as it may, an order about possession has been granted by this Court, and if there is any truth in the allegations of the second respon dent it is open to him to move this Court for relief. Further, in the circumstances discussed, it would appear that this would be the only proper course for the second respondent to take.
8. Mr. Rehman Kazi then stated that the applicants had themselves filed revisions in this Court against the dismissal of their direct complaints and that it would not be just if this Court stayed the criminal proceedings instituted by the second respon dent without staying the criminal proceedings instituted by the applicants themselves. Mr. Shariff immediately gave an under taking that the applicants would be willing to apply for a stay of their own complaints. I record his submission, and learned counsel should repeat this undertaking when the criminal revisions come up for hearing.
9. Mr. Rehman Kazi then submitted that proceedings under section 107, Cr. P, C. had been filed by the second respondent [16] against the applicants, and it would lead to grave injustice if these proceedings were stayed. Mr. Shariff rightly pointed out that he had not sought the stay of these proceedings, therefore it is not necessary to consider learned counsel's arguments further.
10. No other argument was advanced. I, therefore, allow the application and direct that the criminal proceedings commenced under the F. I. Rs. dated 2/1971, 6/1971 and 8/1971 shall be stayed until the disposal of the suits filed by the applicants and by the second respondent in the Court of the learned Additional District Judge, Tharparkar at Sanghar. .