1. 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.
2. The petitioner claims to be in possession of the disputed land under a lease executed by its owner Wadero A.I 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 A.I Muhammad. Therefore, the submission of the learned counsel for the State was that the lessor was not competent to grant a second lease to any body during the pendency of the earlier lease or lease agreement executed by hits. 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.I.R. Had been lodged against him, the petitioner filed a suit against Wadero A.I 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 disputed. 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 (PLD 1968 SC 281) and in N. Manak Ji v.
3. Fakhar Iqbal (1969 SCM R 198). I would therefore consider these two authorities.
4. I would now apply the principle Laid down in 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.
5. As I would not like to prejudge the case of the parties I 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 emphasise that my observations are of a tentative nature, and any decision to betaken by the Courts below should be on the basis of evidence recorded by them.
6. 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.