' Muhammad Aslam Banatwala, and Fareed Banatwala applicants Nos.1 and 2 herein are facing trial in Criminal Case No,158 of 1997, wherein they have been sent up to face trial under sections '408 and 506, P.P.C. Read with section 34, P.P.C. The said case is presently pending in the Court of 1Vth Judicial Magistrate, Police Station Azizabad, District (Central) Karachi.
2. The F.I.R. Of this case was registered on 11-5-1996 on the basis of a complaint made by Feroz Ali Rasheed, Director of E.N.A.R. (Pvt.) Limited/Cot Bag (Pvt.) Ltd. Which run factories situated on Plots Nos.26 and 27 at Azizabad-2 within the jurisdiction of Azizabad Police Station.
3. The applicant No,1 Muhammad Aslam Banatwala was appointed as a General Manager of the said Factory wherein cotton bags were manufactured for export. All of a sudden the said Muhammad Aslam Banatwala disappeared on 17-4-1996, on the pretext that he no longer warranted to serve with the complainant. The Director Feroz Ali Rasheed, thereupon made enquiry and started checking. It was found that the said Muhammad Aslam Banatwala in his capacity as General Manager committed criminal breach of trust in respect of properties of the said factories, which were entrusted to him in such capacity and over which he had dominion. The said Muhammad Aslam Banatwala was getting salary from both the factories. It is alleged that during the period from January, 1996 to Mid April 1996, the said Muhammad Aslam Banatwala obtained sum of Rs,49,31,000 from the Cashier of the factory, namely, Muhammad Zakria through' various vouchers. It is further alleged that 20,000 bags were also taken away by the said Muhammad Aslam Banatwala without any Gate Pass, besides different type of cloth which was taken out by him through Gate Pass Nos.54 to 62 but the said cloth was never returned back to the factories and it was misappropriated by him. Apart from the above, the said Muhammad Aslam Banatwala also took away other factory property consisting of two cutting machines, three 'stitching machines, printing screen etc., etc. Thus, applicant No,1 Muhammad Aslam Banatwala misappropriated the above amount and properties of factory which were entrusted to him and were under his dominion and control as paid employee of the said factories in his capacity as General Manager thereof. The applicant No,2 Fareed Banatwala went to the factory premises on 775-1996 at 3-30 p.m. And issued threats of dire consequences to P.W. Muhammad Raza. Upon the allegations stated hereinabove, the police made investigation and after thorough probe into these allegations, the applicants Muhammad Aslam Banatwala and Fareed Banatwala were sent up to stand trial under sections 408 and 506, P.P.C. Read with section 34, P.P.C. In the trial Court mentioned above.
4. The learned Trial Magistrate framed charge against the applicant Muhammad Aslam Banatwala under section 408, P.P.C. And under section 506, P.P.C. Only against applicant No,2 Fareed Banatwala on 14-2-1998. This position is admitted by both the learned counsel for applicants as well as by the learned counsel for the complainant.
5. Though the charge was framed about a year pack but the trial has not yet commenced. The learned counsel for the complainant stated that the proceedings in this case were being adjourned on each date of hearing upon such request made by the learned counsel for the applicant/accused who appeared for the applicants/accused in the trial Court. The learned counsel for the applicant did not controvert this statement.
6. The applicants moved an application under section 249-A, Cr.P.C., before the learned trial Magistrate, who after hearing the learned counsel for the applicants/accused and that of complainant who appeared on his behalf, rejected the said application on 9-5-1998. The last para. Of the said order, is reproduced herein below: "I have gone carefully through the R&P and arguments advanced by the learned defence counsel and have reached to the conclusion that prosecution have sufficient material that is to come on record in shape of evidence, which is not recorded. The matter is of criminal nature, prima facie accused have committed criminal breach of trust and accused have extended threat, therefore, at this stage it is difficult to say that there is no probability of conviction, therefore, application stands dismissed."
7. After dismissal of application under section 249-A, Cr. P. C. Both the applicants filed the above application under section 561-A, Cr.P.C. In this Court wherein they sought the relief of quashment of the proceedings in the above criminal case.
8. This matter initially came up before my learned brother Amanullah Abbasi, J. On 26-10-1998 for admission and orders on Miscellaneous Application No,3262 of 1998 for stay of proceeding in the trial Court pending the final disposal of main quashment application. On the said date pre- admission notice was issued to the complainant as well as to the Advocate-General and the hearing was adjourned to 16-11-1998 when it was again adjourned to a date in office. Thereafter, the matter came up before different Benches and it was adjourned from time to time.
9. The matter came up for admission before me on 25-2-1999 when I have heard Mr. Abdul Haleem Pirzada, learned counsel for both applicants and Mr. A.Q. Halepota, learned .Counsel for complainant. None appeared on behalf of the State. At the very outset Mr. Abdul Haleem Pirzada.
Advocate stated that in case the prayer in the main application in respect of relief of quashment of proceeding that he had initially, sought there in did not find, favour with the Court, he orally prayed that pending final disposal of Suits Nos.728 of 1996, 1269 of 1996 and 1275 of 1996 which were pending in this Court on its original side, the proceedings pending before the trial Court in the above criminal case may be 'stayed. Mr. A.Q. Halepota appearing on behalf of the complainant vehemently opposed this oral prayer and submitted that the applicant/ accused are not entitled to any of the reliefs sought by them. He argued that this is not fit case for either quashment of the proceedings pending against the applicants/accused in the trial Court or for grant of indefinite stay of criminal proceedings till final disposal of three Suits Nos.728 of 1996, 1269 of 1996 and 1275 of 1996 pending in this Court, on its original side. In support of the oral prayer for stay of proceeding of the above criminal case till final disposal of three suits mentioned hereinabove, Mr. Abdul Haleem Pirzada, learned counsel for the applicants argued that' the subject-matter of the suits referred to hereinabove and that of the criminal case pending against both applicants, is same. He, therefore, submitted that it will be in the interest of justice to stay criminal proceeding pending against the applicants in the trial Court, till final disposal of the above suits. Mr. Abdul Haleem Pirzada, learned counsel for the applicants relied on the case of A. Habib Ahmed M.K.G. Scott Christian and 5 others (PLD 1992 SC 353).
10. Mr.A.Q. Halepota, learned counsel for the complainant submitted that the applicants have been formally charged for offences under sections 408 and 506, P.P.C. Read with section 34, P.P.C. And such charge have been framed against them, and that it is not invariable rule that criminal proceeding must he stayed because of, civil litigation between the parties. It appears from the record which I have perused that Fareed Banatwala is charged only under section 506, P.P.C. Which is not subject-matter of adjudication before this Court in the three suits mentioned above. It is a charge of criminal intimidation, which is yet to be proved after evidence is brought by the prosecution on record. Thus, the applicant 2 Fareed Banatwala has nothing to fear if no credible evidence is forthcoming against him. Even if there is some evidence against this accused the criminal case can proceed against him.
11. For, the applicant/accused Fareed Banatwala oral prayer for stay of proceeding against, him in the trial Court till conclusion of above suit .Was made by Mr. .Abdul Haleem Pirzada learned Advocate although the allegations made against this accused in the above criminal case are < not directly subject-matter of adjudication ,before this Court in suits filed on its original side. This request is, therefore, on the face of it misconceived. Besides merely because civil suits are filed against him there is no bar to the continuation of criminal proceeding against him.
12, Applicant Muhammad Asiam Banatwala was serving as General Manager in the factories of complainant. In that capacity he was allegedly entrusted with all the properties of these factories and had dominion over them. After thorough investigate which was preceded by litigation in the of Constitution petitions flied in this Cent by the parties. The investigating police sent up the applicant/accused Muhammad Aslam Banatwala to face trial for offence of criminal breach of trust under section 408, P.P.C. As stated above the charge under section 408, P.P.C. Has also been framed by the trial Court against him.
13. It appears to me that the criminal liability of both the applicants/accused is quite distinct and separate from civil liability to give pay back. To the complainant the properties that the applicant No,1 is alleged to have converted to his own use. Mere filing of civil suit is no bar to continuation of criminal proceedings. If a civil suit is filed during pendency of criminal case, and if the complainant showed a prima -facie, mere filing of civil suit was no bar to continuation of criminal proceeding.
There is no invariable ' rule that criminal proceeding be postponed pending disposal of civil litigation. I am fortified in this view by the decision in case of Syed Muhammad Ahmed v. The State reported in 1972 SCMR 85 and in case of Dodo Khan v. Jalaluddin and another (PLD 1973 Kar. Page 564).
14. It will not be out of place to mention here that Suit No,728 of 1996 was filed by the applicant No,1 Muhammad Aslam. Banatwala in this Court on 8-8-1996 after the criminal prosecution started against both the applicants herein. Likewise Suit No,1269 of 1996 and. 1275 of 1996 were filed by M/s. Cot Bags (Pvt.) Limited and E.N.A.R. (Pvt.) Ltd. Against the applicants on 9-12-1996 and 12-12-1996 respectively. Thus, these suits were filed after the registration of F.I.R. On 11-5-1996 being Crime No,148 of 1996, against both the applicants and after they were sent up to stand trial for the above offence vide charge-sheet filed against them on 11-11-1997.
15. The authority in case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353) quoted by the learned counsel for the applicant is distinguishable from the facts and circumstances of the present case.
16. The facts - on record prima facie connect the applicants with the commission of above offences. In such a situation it will be premature to prejudge of case of prosecution at this stage. If prima facie offence had been committed, ordinary course of trial before the Court was not to be allowed to be deflected through approach to inherent jurisdiction of this Court.
17. In view of the above facts and circumstances, I am not inclined to exercise discretionary jurisdiction in this case under section 561-A, Cr.P.C. And decline to grant. Prayer for quashment of proceeding in the above criminal case at this premature stage. I am also not inclined to stay the proceedings of the above criminal case, as orally prayed by Mr. Abdul Haleem Pirzada learned counsel for the applicants.
18. In the result, the above Criminal Miscellaneous Application No,380 of 1998 is dismissed. As a result, the Miscellaneous Application No,3262 of 1998 has become infructuous and it stands dismissed automatically.
19. It will, however, be open to the applicants to move a fresh application under section 249-A, Cr.P.C., praying for their acquittal after material evidence is recorded by the trial Court.
20. The observations made hereinabove are of tentative nature and the trial Magistrate will not be, in any way, influenced thereby at the time of recording of evidence which will be independently evaluated by him at the time of final conclusion of the proceedings in the above case.