This quashmerit petition has been preferred by Jehanzeb Shinwari etc. Under section 561-A, Cr.P.C.
For quashment of criminal proceedings titled Muhammad Azim and others v. Rehmatullah pending in the Court of Judge, Anti-Corruption (Provincial), N.-W.F.P., Peshawar or in the alternative to suspend or stay the aforesaid criminal proceedings till final decision of the civil suit titled Muhammad Azim and others v. Rehmatullah Khan and others pending in the Court of Civil Judge, Peshawar.
2. Brief facts of the case are that respondents 1 to 3 alongwith five others instituted a civil suit in the Court of Civil Judge, Peshawar against the petitioners and respondents 5 and 6 and others for a declaration/permanent injunction and possession about the disputed property to the effect that they have cancelled the general power of attorney given to respondent No,4 and after the said cancellation of the general power of attorney, the alleged agent in collusion with the Sub-Registrar had alienated the disputed property owned by the plaintiffs by way of gift in favour of the present petitioners. According to the petitioners the aforesaid civil suit is still pending for final adjudication in the Court of Civil Judge, Peshawar and on the same facts and allegations respondents 1 to 3 had instituted a complaint under sections 419/ 420/467/468/161/162, P.P.C. Read with section 5 (2) of the Prevention of Corruption Act, 1947 and on the said complaint the Anti-Corruption Judge, N.-W.F.P.
Had taken the cognizance and the petitioners and respondents have been summoned to face trial in the said criminal case. According to the present petitioners, the institution of criminal case is totally mala fide and has been brought to victimize, terrorise and humiliate the petitioners through a dispute which is of civil nature and respondents 1 to 3 have themselves admitted that it is a civil liability because they had instituted a civil suit still pending in the Court of Civil Judge, Peshawar.
The petitioners have prayed for the quashment of the proceedings pending in the Court of Judge, Anti-Corruption, Peshawar or in the alternative to stay or suspend the said proceedings till the final decision of the civil dispute between the parties.
3. I have heard the learned counsel for the petitioners as well as respondents and counsel for the State and with their assistance I have perused the whole record. It is to be noted that Muhammad Azim Khan Durrani etc. Instituted a suit in the Court of Civil Judge, Peshawar for a declaration to the effect that the plaintiffs are owners of land measuring 1 Kanal and 17-1/2 Marlas comprising so many Khasra numbers mentioned in detail in the heading of the plaint situated in village Sufaid Dheri, District Peshawar and that defendants 1 to 6 have got no concern whatsoever with the land mentioned above, The gift deed No,4997 executed on 8-12-1996 by defendant No,1 in favour of defendant No,2, is fake , illegal, forged, ultra vires and void ab initio and is inoperative against the right of the plaintiffs and is liable to be cancelled. Similarly Mutation No,7337 dated 18-11-1997 made on the basis of so-called gift deed in favour of defendant No,2 as well as subsequent Mutation No,7427 dated 25-9-1998 by defendant No,2 in favour of defendants Nos.3 to 6 is illegal, unlawful and ineffective on the rights of the plaintiffs and needs cancellation. The allegations of the plaintiffs in the civil suits are that one Rehmatullah was their general attorney and after some time his power of attorney was cancelled in accordance with law but even after the cancellation of the said power of attorney, he transferred some land of the plaintiffs in favour of the present petitioner Jehanzeb Shinwari etc. In collusion with the Sub-Registrar Dost Muhammad Khan who is also the petitioner in the connected quashment proceedings. It is to be noted that the Sub-Registrar Dost Muhammad Khan, who is now retired from service has also preferred a Quashment Petition No,220 of 2001 titled Dost Muhammad Khan v. The State and others, in which he has alleged that the sections of law applied in his case are not established and that he has never accepted any illegal gratification and has done his official duty according to rule 135 of the Registration Rules. As the parties, facts and question of law in the two quashment petitions are one and the same, so my this judgment shall dispose of the instant petition as well as Quashment Petition No,220 of 2001.
4. The contention of the learned counsel for the petitioners is that the dispute is purely of civil nature and the criminal complaint has been lodged only to humiliate and harass the present petitioners. So, is the case of petitioner Dost Muhammad Khan, who strenuously argued that he has performed his official duty and was not in the knowledge of cancellation of the power of attorney and has discharged his duty in accordance with law. Counsel for the respondents mainly argued that there is no bar for criminal and civil proceedings to proceed at the same time and the quashment proceedings have been initiated just to prolong the agonies of the plaintiff/respondents.
5. The moot question in the two quashment petitions is that whether criminal proceedings can be initiated when a civil suit is already pending regarding the same facts and rights. In this behalf a plethora of authorities pro and contra are available, some of which can be reproduced as under:-
1. In 1984 P.S.C. (Supreme Court of Pakistan) 701 (Tahinil Islam v. The State and another), the apex Court upheld that each and every case depends on its own facts and thus in the said authority the criminal proceedings have been stayed by the Supreme Court till the decision of civil suit.
2. Another authority is 1969 SCMR 198 (N.Manak Ji v. Fakhar Iqbal and another), in which the apex Court upheld that the exercise of power under section 561-A, Cr.P.C. By the High Court will depend on facts of each case. The Hon'ble Court has upheld that the High Court has rightly stayed the criminal proceedings.
3. In PLD 1963 (West Pakistan) Karachi, 868, (R.C.P. Guignard v. The State and another), it was upheld that if the criminal case which is based entirely on contractual liability, the Civil Court is the best forum for settling dispute unless circumstances discloses criminal liability.
4. In another authority i,e, PLD 1963 (West Pakistan) Lahore, 481 (Mahmoodul Hassan v. Imtiaz Khan and another) it was upheld that enforcing civil liability through criminal Court is an abuse of the legal process and the criminal proceedings were quashed.
5. In 2000 SCMR 122 (Miraj Khan v. GuI Ahmad and 3 others ), it was upheld that there is no absolute bar on the power of High Court to quash an F.I.R and it is not always necessary to direct the aggrieved person to exhaust remedy available to him under section 249-A, Cr.P.C. As every criminal case should be adjudged on its own facts and upheld that the High Court was very much correct in quashing the F.I.R..
6. In PLD 1976 Lahore 214 (Raja Muhammad Akram Khan v. The State and another), it was upheld by Lahore High Court that genuineness of a sale-deed pending determination before a Civil Court is purely a matter of civil nature and thus proceedings in the criminal Court were ordered to be stayed till the decision of the civil suit.
7. Another authority was referred which is PLD 1997 Karachi 165 (Sajjad Hussain v. The State), in which the Judge of the learned High Court has upheld that no invariable Rules exist to the effect that if the subject-matter of proceedings in criminal and civil cases is the same, there is no legal bar available in law, however, if after recording some evidence it transpires that the proceedings before the criminal Court was the abuse of the process of law, the applicant can apply for the .Stay of the same and the same can even be quashed by the High Court during the pendency of civil litigation.
8. One of the authorities referred in this case by the respondent is PLD 1997 SC 275 (Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A), Lahore, in which the Hon'ble apex Court has upheld that High Courts are ordinarily reluctant to quash proceedings under section 561- A, Cr.P.C. Unless trial Court exercises its power under section 249-A or 265-K, Cr.P.C. Which are incidentally of the same nature and in a way akin to and co-related with quashing of proceedings as envisaged under section 561-A, Cr.P.C. However, the High Court in exceptional cases can exercise its jurisdiction under section 561-A, Cr.P.C. Without waiting for the trial Court to pass an order under sections 249-A and 265-K, Cr.P.C. If the facts of the case so warrant and to prevent the abuse of process of any Court or to secure the ends of justice.
The crux of all these authorities by the High Court and Hon'ble Supreme Court of Pakistan clearly established one fact and that is that although there is no express bar on a civil and a criminal case to go side by side, yet each and every case depends on its own facts and the Courts are vigilant to see that no abuse of process should be followed and no rights of a person should be affected through these proceedings.
6. In the instant case one Rehmatullah, who is stated to be anabsconder who was given general power of attorney by Azim Khan Durrani etc. And later on when they suspected some four play, they cancelled their general power of attorney in due course of law but the said Rehmatullah in spite of the cancellation of the general power of attorney in his favour transferred some property through mutations in favour of Jehanzeb Shinwari etc. Which is the bone of contention in the civil suit. Azim Khan etc. Have instituted a. Civil suit in the Court of Civil Judge, Peshawar for declaration, perpetual injunction and cancellation of those mutations which according to them have been attested by Rehmatullah in favour of Jehanzeb Shinwari etc. When his general power of attorney was already cancelled by Azim Khan etc. The plaintiff has also stated that Dost Muhammad Khan, who was then Sub Registrar was in full knowledge of the cancellation and even then he took part in the proceedings and in the transfer of property. Admittedly, the instant matter is purely a matter of civil nature and if the criminal proceedings are allowed for the time being, it will create complications instead of facilitating the matter, so in this background of the case it will be better for the ends of justice and for the protection of the guaranteed rights of the parties that criminal proceedings pending in the Court of Special Judge, Anti-Corruption (Provincial), N.-W.F.P., Peshawar be stayed till the decision of the civil suit. The two quashment petitions are accepted accordingly.