This is a petition under section 561-A of the Code of Criminal Procedure filed by Dost Muhammad against (1) Rozi Khan and (2) the State for quashing the criminal case pending against the petitioner in the Court of the S. D. M., Cantonment under section 379/411/34, P. P. C. During the pendency of this petition an application under section 561-A, Cr. P. C. Read with section 344, Cr. P. C.
Has also been moved for staying the proceedings of this criminal case until final decision of the pending suit between the parties which has been filed by the petitioner Dost Muhammad against the respondent No. 1 Rozi Khan being Suit No. 305/1971 pending in the Court of the Civil Judge. First Class, Karachi.
2. The learned counsel appearing on behalf of the petitioner does not press the relief for quashing the proceedings of the criminal case i.e. State v. Dost Muhammad and another aforesaid. Thus, this prayer of the petitioner is rejected.
3. The only question to be determined is whether this criminal case State v. Dost Muhammad (present petitioner) and another pending in the Court of the S. D. M., Cantonment should be stayed as prayed. The brief facts are that Dost Muhammad was the owner of the truck in question and the respondent No. 1 Rozi Khan took it on hire-purchase agreement for a sum of Rs. 35,000. He had to pay instalments every month of Rs. 1,200 by the 5th of each calendar month and 10 days grace period was also allowed, It was also a term of the agreement that if he failed to pay any one of the instalments the truck would be recovered back from him by the seller (present petitioner) Dost Muhammad and the balance Of the amount to be paid was also to be forfeited to him. After purchasing the truck, respondent No. 1 Rozi Khan did not even pay a single instalment as it was due in the first month by the 5th of that month. However, the case of the present petitioner is that Rozi Khan thereafter returned the truck to him and also its document of registration etc. As he said that he could not make the payment. On the other hand Rozi Khan lodged a report with the police that the truck, to question had been taken away from the possession of the driver while the driver was having tea in a restaurant while the truck was standing outside which was driven away by the driver of the present petitioner Dost Muhammad and thereby stolen.
4. Soon after the criminal case was initiated before the criminal Court decided about the custody of the truck which was being threatened to be taken over by the police from the petitioner, the petitioner, therefore, filed a civil suit against the respondent No. 1 Rozi Khan for declaration and injunction that the truck belonged to the plaintiff, i.e. The present petitioner and that the defendant, respondent No. 1 herein, should be restrained by an injunction from taking the possession from the plaintiff, i.e. The petitioner. The civil Court accordingly, grunted the injunction. But despite this order of injunction the police seized the truck from the possession of the petitioner. The petitioner, therefore, moved the trial Court for possession of the truck to him on the basis of the injunction order by the civil Court in 'his favour but his request was rejected. He then moved theSessions Court in revision and the Sessions Court granted by the custody of the truck to him which is still with him.
From the above recital of the facts it will be seen that' the subject-spatter of the litigation i.e., the Civil Suit and the Criminal Case of State v. Host Muhammad and another pending in the Court of S. D. M., Cantonment involves determination of identical issues of ownership and possession of the truck in dispute. In this event it is prayed by counsel for the petitioner that since this whole question is pending adjudication ire the civil Court, there--f6re, the proceedings in the criminal Court should be stayed until the decision of the civil suit. In support of his contention he has relied upon a decision of the Supreme Court in the case of 'Muhammad Akbar v. The State and others (PLD 1968 SC 281). At page 285 'of this report their Lordships have observed in a more or less similar case of a dispute about ownership of a motor bus between certain parties 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 here 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 injustice being done in the case if there be a conflict of decision between the civil Courts and the criminal Courts.
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."
6. The above observations apply on all fours to the facts of the present case as regards the litigation between the parties as such I would stay the proceedings of the criminal case State v.
Dost Muhammad and another under section 479/411/34, P. P. C. Now pending in the Court of the S. D. M., Cantonment till the disposed of the suit of the present petitioner Dost Muhammad against the respondent Rozi Khan.
Ordered accordingly.