1. ' This is an application under section 561-A, Cr.P.C., for stay of criminal proceedings pending against the applicant and the co-accused under sections 406, 420, 419/34, P.P.C. Before the learned 1st Additional Sessions Judge, Karachi (South).
2. ' The brief facts giving rise to the present application are that one Rauf Jafrani, Secretary/Principal Officer, Cherat Cement Limited lodged a report at Police Station Civil Lines, Karachi, on 13-10-1984 which reads follows: "Dear Sir, ' Complaint against Mr. Ghazanfar Ali son of late Muhammad Ghaous, residing at 1/30 C-Block 6 P.E.C.H.S., Karachi. Embezzlement, criminal breach of trust, misappropriation of funds.
3. ' It is submitted for your immediate action as under:-
(1) That Mr. Ghazanfar Ali son of Late Muhammad Ghuos above named accused was employed by this Company since 2-1-1982 as Accounts Assistant.
(2) That Mr. Ghazanfar Ali fraudulently and dishonestly misappropriated over Rs,9,00,000 (Rupees nine lacs) of Company's funds and converted the same into his own use. The detail of the sums fraudulently misappropriated is given below: That on 18th April, 1983, he made voucher for Rs,25,000 (Rupees twenty-five thousand) for sending T.T. To Site Nowshera M.C.B. C/D A/C No, 627 for project expenses. Then he made out a cheque No, 245100 for the said amount from A/C No, 161 M.C.B. Shaikh Sultan Trust Branch, Karachi, on the counterfoil of the cheque wrote M.C.B. C/D Account No, 627 Nowshera Branch, but made out cheque a cash cheque which he encashed from the bank personally and kept for the own personal use. The T.T. Accordingly was not sent to Nowshera. In the same manner he made out the following cheques and encashed them, personally misappropriated and converted the money for this own use.
4. Cheque No.Date A/c No.AmountActual payee 78654016-6-83 (counter-- foil dateM.C.B. 33050,000 M.C.B. Nowshera 49773007-11-83 counter-foil date-do- 15.249-37Associated constructed Ltd.
5. 714244 16-11-83 MCB 1611,769-13Ryan Agencies 498210 4-12-83 MCB 33025,000MCB C/D No.627 Nowshera 716297 28-5-84 MCB 1612,540 Machinnens 717124 16-4-84 MCB 1616,424-06MCB Custom Debenture 917186 21-5-84 MCB 1619,270 Jorry Travel On the 29th August, 1983 he made out a cheque No, 3575 for Rs,1,00,000 (Rupees one lac) for T.T. To be sent to M.C.B. C/D No, 627 Nowshera Branch for project expenses but he made the actual cheque in the name of Abdul Jalil Bintory. He deposited this cheque in the A/C No, 989-7 which he had especially opened impersonating himself as Abdul Jalil Bintory with Habib Bank Ltd.
6. Commercial Branch, Karachi. The money was thus collected in the said account for his own use. He admits he opened the said account himself and operated the same as A. Jalil Bintory. In the same manner he collected the following cheques in A/No, 989-7 and kept the money for his personal use.
7. Cheque No.Date A C No.Amount 497479 5-10-83MCB 330Rs. 1,00,000 500745 21-3-84-do- Rs.5,00,000 55446 13-6-84-do- Rs.2,00,000
3. The following cheques were made out by him and cash was collected by Mr. Tasneem Zaki from the bank. In all cases he acknowledged to have received the cash from his colleague Mr. Tasneem Zaki and he kept these sums for his own use:- Cheque No.Date A/C No.Amount 715504 27-12-83MCB 161Rs. 9,000 716225 22-2-84-do- Rs.22,520 716246 5-4-84-do- Rs.17,350 716260 15-3-84-do- Rs.19,927 717737 13-6-84-do- Rs.15,94 717770 20-6-84-do- Rs. 7,01 717783 29-7-84-do- Rs.5,741 717800 23-7-84-do- Rs. 7,10 5 criminal breach of trust, misappropriation, cheating and committing forgery thereby depriving the company of the abovementioned funds by his dishonest means and converting the same into his own use. Yours faithfully, (Sd.)
8. Rauf Jafrani Secretary/Principal Officer."
9. ' That after necessary investigation the case was challaned before the Court. The co-accused Tasneem Zaki filed an application under section 265-K, Cr.P.C. Before the learned trial Judge, and instead waiting for the result, he filed an application for quashment of the above case being Criminal Miscellaneous No, 320 of 1987.
10. ' While the present application was filed on 13th May, 1987, the matter came up before the Court for hearing on number of dates but it was adjourned at the request of one or the other party. However, since the application filed by Tasneem Zaki before the trial Court under section 265-K, Cr.P.C. Was still sub judice before the learned trial Judge, therefore, his quashment application was dismissed by consent, and it was ordered that the applicant Tasneem Zaki would press his application under section 265-K, Cr.P.C. Before the learned trial Judge after two material witnesses were examined.
11. ' I have heard Mr. Z.U. Ahmed, leared counsel appearing for the applicants, Messrs MA. Kazi and Abdur Rauf appearing for the respondents in the present application, Mr. Imam Bux Shaikh for the State.
12. ' It was contended by Mr. Z.U. Ahmed, learned counsel appearing for the applicants that in view of the fact that the allegations regarding forgery were withdrawn by Mr. Abdul Rauf, learned counsel appearing for the respondent in Suit No, 752 of 1984, on 22-9-1986 it will be in the interest of justice that the criminal proceedings pending against the applicant be stayed till the final disposal of the Suit No, 752 of 1984, pending before this Court. Otherwise, there was likelihood conflict of judicial decisions in the case.
13. ' In support of his contentions, the learned counsel appearing for the applicants has relied upon number of decision of the superior Courts.
14. ' On the other hand Mr. M.S. Kazi, learned counsel appearing for the defendant has contended that the charge has been framed against the accused under sections 408, 419, 420, 467, 471 and 109, P.P.C. That the civil proceedings are likely to take long time in its disposal and, therefore, it will not be appropriate to stay the criminal proceedings till the disposal of the civil suits. That the applicant had not moved the trial Court for stay of proceedings or for their acquittal and, therefore, the present application was premature.
15. ' Mr. Imam Bux Shaikh, learned counsel appearing for the State, has adopted the argument of Mr. MA. Kazi learned counsel appearing for the respondent, so also Mr. Abdul Rauf learned counsel appearing for the respondent.
16. ' I have considered the contentions of the learned counsel. No doubt civil suits being Suits Nos. 652 of 1984 and 358 of 1985 are pending in this Court between the same parties.
17. In the criminal case the allegations against the applicant No,1 and co-accused Tasneem Zaki are that the applicant No,1 had prepared voucher of Rs,25,000 for sending T.T. To site Nowshera M.C.B.
18. For project expenses but withdrew the amount personally and used the same and the T.T. Was not sent. In the same manner, he made out other cheques, encashed them personally, and misappropriated and converted the amounts withdrawn for his own use. On 29th August, 1983, he prepared cheque No, 3575, for Rs,1,00,000 (Rupees one lac) to be sent to M.C.B., Nowshera through T.T. But in fact he issued the actual cheque in the name of Abdul Jalil Bintory. It is further alleged that he had opened Account No, 989-7 with Habib Bank Commercial Branch, Karachi impersonating himself as Abdul Bintori and deposited the above cheque of Rs,1,00,000 in the said amount, and later on collected the money himself. In some of the cases, cheques were prepared by the applicant No,1, and cash was collected by co-accused Tasneem Zaki from the Bank, and according to the F.I.R. The applicant No, 1 has acknowledged to have received the cash from his co- accused Tasneem Zaki and converted the above amount towards his own use. As far as contention of Mr. A.U. Ahmed was concerned, there is no doubt that Mr. Abdul Rauf learned counsel appearing for the respondent in Suit No, 752 of 1984 had withdrawn the allegation regarding forgery on 22-9-1985, but the allegations regarding defalcation/breach of trust are still there. As far as the decisions cited by Mr. Z.U. Ahmed were concerned, there is no cavil with the principles laid down in the above decisions, but each case has to be decided on its own facts. There is no doubt that in appropriate cases the Court can stay criminal proceedings till the decision of the civil suit if it is found that the criminal liability is dependent upon the result of civil litigation or is so intimately connected with it that there is danger of grave injustice being done in case the criminal case is allowed to proceed, and in cash circumstances, the proceedings in criminal cases can be stayed.
19. However, in view of the fact that the applicants have not applied to the trial Court for stay of proceedings, and in view of my order passed in Criminal Miscellaneous No, 320 of 1987, filed by co- accused Tasneem Zaki, I am not inclined to allow the present application. The order passed by me in Criminal No, 320 of 1987 reads as follows:- "From the perusal of abashment application it appears that the applicant had moved application under section 265-K, Cr.P.C. Before the learned trial Judge and the same is still pending. This fact has not been controverted by any of the parties. Moreover, it is a case in which disputed questions of fact are also involved, therefore, the present application is premature and is accordingly dismissed as not pressed.
20. ' However, the applicant can press his application under section 265-K, Cr.P.C. Which is already pending before the learned trial Judge after complainant and one witness are examined."
21. ' In view of the above position the present application is dismissed for the time being. However, the applicants can move the learned trial Judge for acquittal or stay of proceedings if so advised after complainant and one witness is examined.