1. ' In the events that happened, the 2nd respondent had filed a complaint on 11th June 1972, against the petitioner under section 147/148/447, P. P. C., and the dispute in that complaint relates to land specified in Para. 1 of the petition before me. The case of the petitioner is that this land was leased to him by one Wadero Ali Muhammad on 8-6-1972, whilst the case of the 2nd respondent, namely the complainant in the trial Court, is that he was in possession of this land under a lease for 5 years executed on 24-9-1967, hence the complaint. The case against the petitioner is pending in the Court of the City Magistrate, Khairpur and it would appear that he had filed an application for his discharge under section 253, Cr. P. C. On the ground that a civil suit was pending between the parties. This application was dismissed with the observation that no case-law had been cited in support of the submission that the applicant had to be discharged because of the pendency of the civil litigation and the second ground was "the case in this Court has not yet proceeded with.
2. Neither the complainant nor any of the P. Ws. Has so far been examined. As such questions of discharge of the accused at this stage does not arise and application is accordingly rejected."
3. Aggrieved by this order the applicant filed an application in this Court for its quashment which I had admitted on 5-1-1973. Now this application has come up for hearing before me.
4. ' Mr. Qamar Muhammad Khan's main plea was that the existence of civil litigation between the parties was sufficient to oust the jurisdiction of the City Magistrate and alternatively he submitted that in view of that civil litigation this Court should at least stay the proceedings in the criminal case against the petitioner. It is therefore necessary to refer to this civil litigation.
5. ' The petitioner claims to be in possession of the disputed land under a lease executed by its owner Wadero Ali Muhammad on 8-6-1972, and the learned counsel relies on the assertion in the agreement that possession had been handed over to the petitioner, but the lease is for 5 years and it is admitted that it was not registered. However, on the basis of the lease agreement, learned counsel's claim is that the petitioner has proved his possession of the disputed land. But according to the F. I. R. Lodged by the 2nd respondent he had been in possession of the same land under a lease for 5 years executed on 24th September 1967, and it is admitted before me that this lease agreement also had been executed by the same lessor, namely Wadero Ali Muhammad. Therefore, the submission of the learned counsel for the State was that the lessor was not competent to grant a second lease to anybody during the pendency of the earlier lease or lease agreement executed by him. I would refrain from making any observations on this submission, and I would only point out that the lease agreement relied upon by the petitioner is dated 8th June 1972. However, about a month later, the lessor filed a suit against the petitioner in which his contention was that the lease agreement of 8-6-1972 had been obtained from him by the petitioner whilst he was under the influence of intoxicants. The suit therefore is for a declaration that the lease agreement in the petitioner's favour was illegal and void. As this suit is pending once again I will refrain, as far as possible, from making any observations which might affect it. Finally, in November 1972, about 5 months after the F.
1. R. Had been lodged against him, the petitioner filed a suit against Wadero Ali Muhammad, respondent No, 2 and another for a permanent injunction to restrain the defendants in that suit from interfering with his rights with regard to the land in dispute. This suit is also pending in the District Court, and Mr. Qamar Zaman Khan's contention is that the complaint against the petitioner has to be quashed or the proceedings stayed because of judgments of the Supreme Court reported in Muhammad Akbar v. State (1) and in N. Manak Ji v. Fakhar Iqbal (2). I would therefore consider these two authorities.
6. ' In Muhammad Akbar's case, Hamoodur Rehman, J. As he then was, now the Chief Justice observed : "Normally it is true, that criminal proceedings should not be postponed pending the disposal of civil litigation connected with the same subject-matter. But where 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 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 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." I am in respectful agreement with these observations, but the facts in the judgment cited are distinguishable because there had been prolonged civil litigation between the parties which had been going on for several years before the criminal proceedings sought to be stayed had been commenced. As to the other case cited, the facts were that there was a dispute between the parties about a cheque. A criminal complaint was filed against the respondent who later filed a civil suit, and Yaqub Ali, J. Who delivered the judgment of the Court stayed the criminal proceedings with the following observations : "It is thus apparent serious questions of fact and law arise in the civil suit for determination of the Court and the plea that it was a mere counterblast to the criminal case has little force. The time factor is also against the appellant's contention The complaint made by the appellant was received on the same day. The more material date is 2-10-1966 when the report under section 173, Cr. P. C. Was submitted by the police in the Court of a local Magistrate".
7. ' I would now apply the principle laid down if these authorities to the present case. Mr. Qamar Muhammad Khan submitted that the decisions of the criminal Court would turn on the very dispute which was also pending in the civil Courts, namely the validity of the lease agreement in the petitioner's favour. Now if this submission had been correct, learned counsel's reliance on the authorities cited would have been justifiable. But learned counsel for the State submitted that even if the petitioner proved his claim in the civil litigation, it might not be sufficient for his defence in the criminal case against him. The submission is supported by the plain language of section 441, P. P. C.
8. As I would not like to prejudge the case of the parties 1 would only observe here that the pleas taken by the petitioner in the suit filed by him and his pleas in his defence in the suit against him may be sufficient to exonerate him under section 447, P. P. C. But on the other hand if he was aware of the rights of the 2nd respondent the mere fact that his lease agreement was valid might not be sufficient for his defence in the criminal case against him, therefore two conclusions follow. The first is that the question in issue is one of fact, and as rightly observed by the learned City Magistrate the application for discharge was premature. A Secondly, the disputes in the civil suit might not be relevant to the criminal case against the petitioner. But I must emphasize that my observations are {{FOOT NOTE}}
(1) PLD 1968 SC 281 (2) 1969 SCM R 198 {{FOOT NOTE}} of a tentative nature, and any decision to be taken by the Courts below should be on the basis of evidence recorded by them.
9. ' I have referred earlier to the observations of the learned City Magistrate that the petitioner's application for discharge was premature because evidence had not been recorded under section 252, Cr. P. C. I would only observe here that this view was based on a sound appreciation of the principles governing section 253, Cr. P. C., but it may be open to the petitioner to file a fresh application after evidence has been recorded under section 252. With these observations the application is dismissed.