' IFTIKHAR MUHAMMAD CHAUDHRY, J.---This appeal by leave of the Court is directed against the judgment, dated 14-12-1993 passed by the Lahore High Court, Lahore whereby Criminal.
Miscellaneous Application No,341-M of 1993 filed by the respondents has been allowed, as a result whereof order, dated 18-1-1993 passed by the Additional Sessions Judge, Sheikhupura summoning them to face trial has been quashed.
2. Briefly stating facts of the case are that appellant initially instituted F.I.R. No,382 of 1989 at Police Station Factory Area, District Sheikhupura against the respondents under sections 420, 468 and 471, P.P.C. Which was subsequently cancelled allegedly on account of influence of the respondents. As such, appellant thereafter on 4-5-1992 filed a complaint under sections 420, 468 and 471, P.P.C.
Against the respondents alleging that they have removed machinery, which was lying in the warehouse of Messrs Taj Company, fraudulently without his permission. The complaint was initially entertained but it was dismissed by the Magistrate on 31-5-1992. Against the said order appellant preferred a revision petition under section 439, Cr.P.C. Before the Additional Sessions Judge, Sheikhupura, who allowed the same vide order, dated 18-1-1993. Respondents feeling dissatisfied from the judgment of the Additional Sessions Judge filed a criminal miscellaneous application under section 561-A, Cr.P.C. Before the Lahore High Court. Lahore for the quashment of order of summoning them to face the trial.
' Learned Single Judge in Chambers of the Lahore High Court, vide impugned judgment, quashed the order of Additional Sessions Judge, as such instant petition has been filed. It would be appropriate to reproduce hereunder relevant para. From the impugned judgment for sake of convenience:-- "4. Learned counsel for the petitioner has drawn the attention of the Court to the agreements, dated 3-2-1987 and 4-2-1987 executed between the parties which clearly contain an arbitration clause in case of any dispute arising therefrom between the parties. Lengthy arguments have been addressed as to the conduct of the parties in Germany and then after the receipt of the machinery in Pakistan and how the same was obtained by one party causing loss to the other. In this very connection learned counsel for the petitioner has drawn the attention of the Court to the two cheques issued in favour of the respondents, dated 7-10-1986 (Rs,3,00,000) and dated 4-1-1987 (for Rs,10,50,000) which were encashed to show their bona fide. Looked at from whatever angle, leaving aside the implications of the petitioner moved by the petitioner for winding-up of his company C.O.
No,22/91 suffice it to say that the question involved is about the claim of one party against the other and that is clearly covered by the arbitration clause. No criminal case, in any case, would succeed whatever amount of evidence or the documents annexed with the petition is formally proved on the record."
3. Learned counsel appearing in support of the appeal contended that view of the High Court that in presence of arbitration clause in the agreement, dated 3-2-1987, criminal case is not maintainable is not sustainable because the appellant had produced overwhelming evidence and prima facie it is established that the respondents are guilty for the offence falling within the mischief of sections 420, 468, 409 and 471, P . P . C .
4. On the other hand, learned counsel for the respondents stated that as per the documents, respondents are the owners of the machinery and in fact fraud has been committed by the appellant because he was exporter's Agent, therefore, on his persuasion the machinery imported by respondents was kept in the warehouse of Messrs Taj Company and subsequently the same was legally removed by the respondents being owners and as such, prima facie, they have not committed any offence falling within sections 420, 468, 409 and 471, P.P.C. In support of his contention he has placed reliance on the judgments reported as Javed Iqbal v. Muhammad Din (1990 SCM R 1309) and Muhammad Siddique Sabir v. Kh. Muhammad Naeem Lone (1988 PCr.LJ 1229).
5. Mr. Muhammad Zaman Bhatti, learned State Counsel supported the arguments advanced by appellant's counsel and contended that Additional Sessions Judge, after having gone through the available material has found that prima facie case is made out against the respondents, therefore, according to him, the High Court, was not right in quashing the order directing the respondents to face the trial merely for the reasons that there is an arbitration clause in the agreements executed between the parties. He placed reliance on Mian Munir Ahmad v. State (1985 SCM R 257) and Siraj Din v. Peer Salim (1989 SCM R 1385).
6. After hearing learned counsel for the parties, we are inclined to hold that opinion formed by the High Court to the effect that in presence of arbitration clause in an agreement allegedly executed between the parties, no criminal action is maintainable is not sustainable in the eyes of law. So far, as criminal liability is concerned, it is always treated distinct and different from the civil liability between the parties. However, the complainant, who has initiated the criminal action, is required to prove the accusation against the respondents-accused by producing evidence, which of course can be recorded at stage of the trial by the Court, therefore, High Court had no jurisdiction to make premature opinion that whatsoever evidence will be produced it will not improve the case of the appellant. In our opinion without touching merits of the case, order of the High Court quashing order of the Additional Sessions Judge, dated 18-1-1993 is not sustainable. Thus, impugned judgment is set aside. Learned counsel for the respondents stated that an observation be made that respondents shall be free to move application under section 249-A, Cr.P.C. Before the Court seized with matter at the stage of trial. Needless to observe that such remedy can always be availed by a party if it considers that no useful purpose will be served if the evidence is recorded or accused is put to trial because there is no chance of recording of sentence on the material, which is brought before the Court by the opponent side.
7. For the foregoing reasons, appeal is allowed, impugned judgment is set aside and the case is sent back to the concerned Court for trial keeping in view the observations made by the Additional Sessions Judge in the order, dated 18-1-1993. Trial Court is directed to dispose of the matter expeditiously as far as possible within a period of three months because it is lingering on between the parties since 1989.