This application made under section 561-A, Cr.P.C. Seeking quashment of the proceedings against applicants and respondents Nos.3 to 8, arising out of Crime No.595 of 1986, Liaquatabad Police Station, under sections 419-420 and 471-474-468/109, P.P.C., pending in the Court of IInd Additional Sessions Judge (Central), Karachi, has been filed in somewhat unusual circumstances.
2. Zahid Hussain, the respondent No.8 was a tenant of Abdul Qadir, respondent No.2 in respect of premises bearing No.3/50, Liaquatabad, Karachi, which was got vacated by Abdul Qadir, respondent No.2 in terms of the order of this Court passed in F.R.A. No.431 of 1985. It is alleged that Abdul Qadir, respondent No.2 entered into a sale agreement with Siraj-ud-Din, applicant No.1, in respell of this premises, but subsequently resiled from it, with the result that Siraj-ud-Din, applicant No.1 filed a Suit against Abdul Qadir, respondent No.2, for declaration, specific performance of contract, possession and injunction.
Abdul Qadir, respondent No.2, contested the suit and alleged therein that the sale agreement and the receipts produced by Sirajuddin, applicant No.1 were forged documents. On 23-9-1986 Abdul Qadir, the respondent No.2 filed a complaint against Sirajuddin, Abdul Hafeez, applicants Nos.1 and 2, and Hassan Zahid, Saifuddin, Baboo Khan, Musharaf Ahmad Khan, Mohiuddin and Zahid Hussain, respondents Nos.3 to 8 in the Court of A.C.M. XI (West) Karachi, for the offence under sections 419- 420-471-468/109, P.P.C., which was sent to S.H.O. Liaquatabad Police Station in terms of section 156(3), Cr.P.C. Accordingly a case being Crime No.595 of 1986 was registered at Liaquatabad Police Station. After usual investigation Sirajuddin, Abdul Hafeez, applicants Nos.1 and 2, Hassan Zahid, Saifuddin, Baboo Khan, Musharaf Ahmed Khan, Mohiuddm and Zahid Hussain were sent up to stand trial for the said offence. Zahid Hussain, the respondent No.8, then approached this Court seeking quashment of proceedings (Criminal Miscellaneous Application No.7 of 1989) by filing an application under section 561-A, Cr.P.C. This application was dismissed by this Court on 20-11-1989.
Zahid Hussain filed a review application which too was dismissed on 16-1-1990 after i.e same was nut pressed. Siraj-ud-Din and Abdul Hafeez, the applicants Nos.1 and 2, who were respondents Nos.3 and 8 respectively in Criminal Application No. 7 of 1989 have now invoked the inherent jurisdiction by riling the present application under section 561-A, Cr.P.C.
3. I have heard Mr. Imran Ahmad, learned counsel for applicants, Mr. Gul Zaman Khan, learned counsel for respondent No.2 and Mr. Jalal-ud-Din Baloch, learned counsel for the State. Mr. Baloch has opposed the application made under section 561-A, Cr.P.C. Seeking quashment of the proceedings.
4. It is contended on behalf of applicants that the previous application filed by Zahid Hussain, respondent No.8 being Criminal Miscellaneous Application No.7 of 1989 was dismissed by this Court on the sole ground that the photostat copies of the disputed documents were placed on record of the Civil Court and consequently the provisions of section 195(1)(c), Cr.P.C. Were not attracted, and since the original sale agreement is now placed on record in civil proceedings, the infirmity pointed out above no more exists.
5. Para 5 of the judgment in Criminal Miscellaneous A plicatiori"No9 of 1989 is relevant and for the sake of convenience is reproduced below:- "The object of this provision of law is to prevent improper or reckless prosecution by private persons for offences in connection with the administration of justice. To attract the applicability of clause
(c) the fulfilment of following requirements are necessary:-
(i) That the offence is alleged to have been committed by a party to any proceeding in any Court.
(ii) That the offence is committed in respect of a document produced or given in evidence.
(i.e) That the said offence falls under section 463, or 471 or 475 or 476, P.P.C.
It is, however, essential that all these conditions should be satisfied before invoking the provisions of section 195(1)(c), Cr.P.C."
6. Admittedly the original agreement was placed on record of the Civil Court on 25-11-1989. The F.I.R.
In this case was lodged on 24-9-1986 long before the production of the original sale agreement in Court. On the face of the record the provisions of section 195(1)(c), Cr.P.C. Were not attracted when the cognizance was taken in this case against the applicants and respondents Nos.3 to 8. The respondent No.8 instead of challenging the order of this Court before the Hon'ble Supreme Court once again invoked the jurisdiction of this Court through applicants Nos.1 and 2 by twisting the facts. An indirect attempt has been made to get the earlier judgment reviewed from this Court through this application filed under section 561-A, Cr. P.C. (Criminal Miscellaneous Application No.356 of 1989) touching the same subject-matter. There is ample authority in respect of the proposition that right of review is not available in criminal proceedings and the following cases may be cited with advantage:- (1)Raju and another v. Emperor AIR 1928 Lahore 462; (2)Rehmat Ali alias Lunda v. The State 1971 SCMR 513;
(3) Juan Sullivan v. The State 1971 SCMR 618; (4)Khan Muhammad v. The State 1985 P Cr. L J 578; (5)Rahim Jan v. Ahmad Jan and another 1986 P Cr. L J 122; (6)Faizullah and another v. Mst. Pervez Akhtar and 3 others PLD 1987 Azad J and K 29; (7)Niazi and 3 others v. Ghulam Dastgir and another 1987 P Cr. L J 1432; and (8)Muhammad Akbar alias Akoo v. Shakoor Alam and 2 others 1988 P Cr. L J 2428.
7. It may further be added that by merely placing the original sale agreement on record of the civil suit on a date subsequent to the registration of the case and after the decision of the earlier application filed under section 561-A, Cr.P.C., the bar of section 195, Cr.P.C. Will not be attracted and the legal position will be the same which existed at the time of decision of earlier, application (Criminal Miscellaneous Application No.7 of 1989).
8. During the course of arguments Mr. Imran Ahmed, learned counsel for applicants has contended that in order to avoid conflict of decisions, the criminal proceedings pending against the above persons may be stayed till the civil suit pending between the parties is finally adjudicated upon. He has placed reliance upon the case of Abdul Haleem v. The State reported in 1982 SCMR 988. Mr. Gul Zaman Khan, learned counsel for respondent No.2, while opposing the prayer of stay of the proceedings made on behalf of applicants has submitted that no such application was moved Before the trial Court, and consequently it will be premature to consider it in these proceedings filed under section 561-A, Cr.P.C.' It was also pleaded on behalf of respondent No.2 that the stay of proceedings can only be directed where judgment in the civil suit as well as in criminal case will almost be the same. Reliance is placed upon the cases of Mst. Muni v. Habib Khan, reported in PLD 1956 Lah. 403, Syed Muhammad Ahmed v. The State reported in 1972 SCMR 85 and Rehmat Ullah v. Abdul Aziz and another, reported in 1974 P Cr. L J 541.
9. Since the prayer of stay was not made before the trial Court, I am unable to consider this prayer at this stage. It will, however, be open to applicants or any of respondents Nos.3 to 8 to seek such relief before the trial Court, which will be considered on its own merits.
10. In the result the application filed under section 561-A, Cr.P.C. Fails, and is dismissed accordingly.