Abdul Hameed Khera petitioner brought a complaint against one Nathe Khan under section 427 of the Pakistan Penal Code, in the Court of Mr. Masood Hassan Khan, Magistrate 1Class, Lahore, on 17th November 1970. The petitioner's case is that he is owner of house No. S. W-111-90-S-11, situated in Krishan Nagar, Lahore. It was transferred to him by the Settlement Department. There are four shops on the ground floor of this house, which have been transferred to its occupants, one of them being Mst. Rehmat Bibi, wife of the accused. The petitioner, who was a Commissioned Officer in the Pakistan Naval Forces, retired from service in 1970. He learnt that during his absence, while he vas serving in the Pakistan Navy at Karachi, the accused constructed bath rooms (Hamams) in the shop belonging to his wife without his consent and knowledge. On account of the excessive use of water in the said bath rooms, the northern portion of the house of the petitioner got damaged.
There was seepage and dampness on account of leakage of water in the walls. The complainant's case is that he has suffered a loss of Rs, 5,000 inasmuch as, his property has been damaged.
2. After recording preliminary evidence of the complainant, the learned Magistrate dismissed the complaint under section 203 of the Code of Criminal Procedure, on 28th December,1970 observing that since the complainant had proceeded against Nathe Khan accused In a civil Court claiming damages and had informed the Corporation of unauthorised construction, and action was being taken against the accused, there will be no justification in summoning him.
3. Aggrieved with the aforesaid order of the learned. Magistrate, the petitioner filed a revision petition in the Court of Mr. Faiz Ahmad Aslam, Additional Sessions Judge, Lahore. The learned Additional Sessions Judge, after agreeing with the learned counsel for the petitioner, that pendency of civil proceeding concerning the matter in dispute was no bar to the initiation of criminalst proceedings, declined to interfere in the order of the trial Magistrate, for the same reasons for which the trial Magistrate bad declined to summon the accused. He observed: - "The petitioner has already initiated proceedings against the present respondent before the Corporation Authorities on the same facts and is also seeking his remedy in civil Court, by claiming damages against him, and, therefore, it is not justified to summon the respondent in the present complaint."
His finding thus is that since the Magistrate has given reasons, which do not appear to be either foolish or perverse, his order cannot be interfered with. Aggrieved with this order, the petitioner has come to this Court.
4. Counsel for the petitioner and the State have been heard. I am not inclined to agree with the learned Additional Session Judge that the pendency on Civil proceedings against the accused at the instance of the complainant are a bur to the initiation of criminal proceedings. If any authority for that proposition is needed, I may quote the case of Nur Muhammad Khan v. Sh. Sabz Ali and another (PLD 1965 Lab. 345). In this case, Mr. Justice Sardar Muhammad Iqbal, Chief Justice, then a Judge of this; Court, observed: -"
"The learned Magistrate was, in fact, influenced by the fact that a civil suit was pending between the parties. This again could not be valid basis for discharge unless the Magistrate comes to a clear conclusion on the grounds to be recorded that the allegations disclose a dispute of a civil nature which is distorted into a criminal case. The fact that a civil suit is pending between the same parties, in respect of the sale transaction by itself does not bar criminal proceedings on the same facts. A particular act may give rise to proceedings both under the civil and criminal law. Whereas the civil suit is to determine the rights of the parties and may entitle the plaintiff to a decree; in criminal matters, particularly in cognizable cases, the accused is liable to the State and the society for the offence which he has committed."
5. The mere fact that the Corporation has also taken action against the accused for unauthorised construction, would be no g ground for the dismissal of the complaint. The Magistrate has given no reason, why he declined to issue process on the basis of the evidence adduced before him. I am thus of the opinion that the orders of the learned Additional Sessions Judge and the Magistrate must be set aside. These are set aside and the case is sent back to the, trial Court to determine it in accordance with law.