' This order will dispose of Criminal Miscellaneous No, 165-Q/1977 and No, 316-Q/1977. These petitions have been filed for quashment of proceedings in a case under section 420/471/468, P. P.
C. "State v. Muhammad Jamil Shah" pending before a Magistrate 1st Class, Shalwal, District Sargodha. The basis of the challan is the First Information Report No, 118 dated 14-5-1976 recorded at the instance of the husband of Mst. Piari Begum.
2. The relevant facts are there was an arbitration without the intervention of the Court allegedly between Piari Begum on the one hand and Mst. Wajida Begum on the other. It was alleged before the Arbitrator that the land in dispute has been sold by Mst. Piari Begum in favour of Mst. Wajida Begum (petitioner in Criminal Miscellaneous No, 316-Q/1977) and the latter had become owner of the land.
3. The arbitrator gave an award in favour of Mst. Wajida Begum and a judgment and decree dated 4-5-1975 followed on the basis of that award.
4. Mst. Piari Begum filed a suit before the civil Court for declaration that these arbitration proceedings and the award were illegal, void and ineffective since she was never a party to the reference to the arbitrator. The suit was dismissed as incompetent and the plaint of Mst. Piari Begum was rejected on the 17th of June 1976, under Order VII, rule 11, C. P. C. Her appeal was dismissed on the same ground by the learned District Judge on the 8th of December 1976. Mst. Piari Begum thereafter filed an application under section 33 of the Arbitration Act before the Court which had passed the decree on the basis of the award and the same is pending.
5. During the pendency of the civil suit which, as stated above, culminated in the rejection of the plaint, the above-mentioned F. I. R. Was registered by the police. The police submitted a challan against Mst. Wajida Begum as well as several other persons including Jamshed Ali Shah and Mashooq Hussain, petitioners in Criminal Miscellaneous No, 165-Q/1977.
6. It is clear from the facts stated above, that the question whether Mst. Piari Begum was in fact a party to the reference before the Arbitrator, or those proceedings were initiated by forging the record or by somebody impersonating Mst. Piari Begum is sub judice not only before the Criminal Court, but also before the civil Court in the application filed by Mst. Piari Begum under section 33 of the Arbitration Act.
7. Jamshed Ali Shah and Mashooq Hussain, petitioners in Criminal Misc. No, 165Q/1977 have filed this petition inter alia on the ground that neither the First Information Report was against them nor any case is made out so as to involve them in the above-mentioned criminal case. Ant. Wajida Begum on the other hand relies upon the authenticity of the proceedings before the Arbitrator and also the pendency of the same matter before the civil Court. The arguments of the learned counsel for the petitioners are to the same effect.
8. The learned counsel for the respondent on the other hand submitted on the basis of Ghulam Muhammad v. Muzammal Khan (1) that the High Court should not stiffle the prosecution at this stage when the matter can be decided after full evidence by the trial Court.
9. After hearing the learned counsel for the parties I am of the view that it would not be appropriate for me to interfere in the criminal matter at the stage and quash it. However, since there is decree in favour of Mst. Wajida Begum, petitioner against Mst. Piari Begum, the criminal Court cannot be expected to set aside that decree particularly when the question of its authenticity or of its having been obtained fraudulently, is also sub judice before the civil Court. Although according to law, there are cases where the criminal prosecution and a civil Court can continue simultaneously, but in my view this is not a case of that type. In this case as stated above, the prosecution of the criminal case will ultimately depend upon the decision of the civil Court, since the criminal Court cannot be expected to set aside the decree passed by the civil Court. In my view the criminal proceedings should be stayed for so low as the matter under section 33 of the Arbitration Act is not decided finally.
10. The question whether the case against Jamshed Ali Shah and Mashooq Hussain should be allowed to continue, can be decided by the learned Magistrate notwithstanding the stay order which I propose to pass. It was conceded before me by the learned counsel for the respondent that neither the First Information Report is against these persons nor the report under section 173, Cr. P.
C. Submitted by police to the learned Magistrate disclosing the part played by these petitioners. In fact if there is any evidence against the petitioners, the report under section 173, Cr. P. C. Should have disclosed, however, briefly the part played by these persons in the alleged commission of the offence attributed to them. In these circumstances I would leave it to the learned Magistrate to go through the record including the police record and find out whether there is any case against these persons. If he be of the view that no case is made out against them, he can discharge or acquit them straightaway without being influenced by the order of stay of the proceedings since the order of stay is subject to this direction. {{FOOT NOTE}}
(1) PLD 1967 SC 317 {{FOOT NOTE}}
11. II therefore, direct that the proceedings in the criminal case shall remain stayed till the final order is passed on an application under section 33 of the Arbitration Act filed by Mst. Piari Begum, but this will not bar the jurisdiction of the learned Magistrate to go into the question whether there is any case against the other petitioners. The parties are left to bear their own costs.
Criminal proceedings stayed.