' Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner seeks quashment of F.I.R. No,269/2002 registered on 25-7-2002 at the instance of Major (Rtd.) Atta Ullah Butt/respondent No,1 at Police Station Model Town, Gujranwala, under sections 406, 468, 471, P.P.C.
2. The brief allegations in the F.I.R. Are that the complainant is a retired Army Personnel and joined with the petitioners as his partners and they started the business of import and auction of certain goods under the name and style of "Major Enterprises and Kashif Traders" having its registered office at 30-Trust Plaza, Gujranwala. The petitioner No,1 was aware of the business dealings hence he was responsible for keeping the stock and its sale while the complainant was responsible for selection of material to be imported besides the preparation of the papers and dealing with the Customs Department. Four years this business continued. The complainant asked the petitioner No,1 repeatedly for the rendition of accounts but he started putting off the matter on one pretext or the other. On the insistence of the complainant in August, 2001, the record was shown by the petitioner and the complainant found that fraud, forgery and embezzlement has been committed as wrong entries had been made of the sale and purchase. It was also found that the petitioner No,1 Had sold the imported material to his father who was running his business in the name of Firm M/s. Al-Madina and subsequently used to receive the amount from them. When these matters were pointed out to the petitioner No,1 who partly accepted it but subsequently said to the complainant that he would arrange for a Munshi for preparing the accounts in proper form and Muhammad Sharif was introduced by him who took the registers and the relevant record to his home in order to peruse the same. Subsequently he brought the account papers and it was found that he had tampered with the same and in connivance with petitioner No,1 had incorporated forged and fabricated entries in order to deprive the complainant of his cash amounting to Rs,31,87,903 and also by embezzlement of goods valuing Rs,6,60,976 which were not accounted for the petitioner No,
1. On the basis of this application the above-said case has been registered.
3. Learned counsel for the petitioner contends that the F.I.R. Is liable to be quashed on the ground that the petitioner No,1 was admittedly a partner and being owner of the property could not be held guilty of the offence of misappropriation of the property was wrongly mentioned. Relies on Abdul Hakim and 2 others v. The State and another (PLD 1978 Karachi 359) and Kazim Ali Dossa v. Faisal Malik and 5 others (1980 PCr.LJ page 818). It is further contended that admittedly civil dispute had arisen between the petitioner and the complainant wherefor an arbitration was agreed upon between petitioner No,1 and the complainant before the registration of the criminal case and vide agreement dated 7-1-2002 the arbitrator gave the award in response whereof complainant filed an application under sections 14/15 of the Arbitration Act and petitioner No,1 filed reply on 19-6- 2002. It is also contended that civil suit was also filed by petitioner No,1 for rendition of accounts which is also pending since 21-6-2002 and the petitioner and the complainant had received the notices in the said suit hence the pendency of the civil litigation between the parties on the same issue is sufficient to quash this F.I.R. As the registration of the same is in order to pressurize the petitioner No,1 to accept the terms of the complainant. Relies on Miraj Khan v. Gul Ahmad and 3 others (2000 SCMR page 122) that due to the pendency of the civil dispute the criminal proceedings can be quashed. Also relies on Abdul Haleem v. The State and another (1982 SCMR 988) and two authorities of this Court reported as Muhammad Bashir v. Fazal Hussain and 2 others (2002 PCr.LJ page 513) and Mian Fazal Ahmad v. $.H.O., Gulberg, Liberty Market, Lahore and 3 others (PLD 2002 Lah. 164) by which the proceedings were quashed by this Court while exercising the powers under section 561-A, Cr.P.C. It is further contended that section 468 P:P.C. Is not made out as the basic ingredients of section 415, P.P.C., for the purpose of cheating are not attracted to the facts and circumstances of this case and section 468, P.P.C., is dependent upon the cheating which is not applicable in this case. It is further contended that the FIR.. Is liable to be quashed on this score alone.
4. On the other hand learned counsel for the complainant has opposed this petition on the ground that petitioner No,1 can approach to the learned trial Court, as the challan has been submitted by filing application under section 249-A, Cr.P.C. It is further contended that the facts of the criminal case have been found correct by the police during the investigation and it is not liable to be quashed by this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
5. Mr. Muhammad. Shah Gul, Advocate, appearing on behalf of the Advocate-General has also challenged this petition on the ground that this petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and the grounds being urged are under section 561-A, Cr.P.C. As after the submission of the challan the petition can be filed under section 561-A, Cr.P.C. And not under Article 199 of the Constitution. It is further contended that on this score alone this petition is liable to be dismissed. It is also contended that civil and criminal litigation can go side by side as both are independent remedies available to a person. Relies upon Syed Muhammad Ahmad v. The State (1972 SCMR page 85), Muhammad Akbar v. The State and another (PLD 1968 SC 281), Akhtar Hussain Zaidi v. The State (PLD 1985 Lah. 662) and Mst. Nasim Bibi v. Sub- Registrar, MIC, Lahore (2000 YLR page 47). Further contends that straightaway F.I.R. Was not lodged in this case but firstly the inquiry was conducted. Also relies upon Brig. (Rtd.) Imtiaz Ahmad's case reported in '1994 SCMR page 2142' that the F.I.R. Cannot be quashed.
6. In reply to these contentions learned counsel for the petitioner has argued that when the petition was filed challan had not yet been submitted hence the position at the time of filing of this petition can be taken into consideration by this Court as at that time provisions under section 561-A, Cr.P.C.
Could not be invoked. Relies on Shahnaz Begum v. The Hon'ble Judge of the High Court of Sindh and Baluchistan and another (PLD 1971 SC page 677 at page 692), hence there is no alternative except to file a petition under Article 199 of the Constitution. It is further contended that there is no hindrance to this Court to meet the ends of justice to decide this petition by converting this petition under section 561-A, Cr.P.C. Relies upon Asghar Ali v. Punjab Local Council Election Authority and 4 others (1999 SCMR page 1123) and Ata Ullah Malik v. The Custodian, Evacuee Property, West Pakistan and 5 others (PLD 1964 SC 236 at page 258). Further argues that no cheating was committed while allegation of tampering with the record is already subjudice in the civil suit for rendition of accounts and is part and parcel of the civil litigation between the parties.
7. I have heard the arguments of learned counsel for the parties and also perused the record as also contents of this petition carefully. First of all I would like to decide the issue whether the writ petition is maintainable or not. When this writ petition was filed, challan had not yet been submitted hence the petitioner had no remedy except to avail under Article 199 of the Constitution as remedy under section 561-A, Cr.P.C. Could not be availed in view of the judgment cited by the learned counsel for the petitioner i,e, Begum Shahnaz's case which was endorsed by the Supreme Court of Pakistan in Ahmad Saeed's case reported in '1996 SCMR page 186' but during the pendency of this petition and it was in the knowledge of the Investigating Officer that the petition has been filed, the challan has been submitted which cannot hamper this Court from deciding this case by treating this petition under section 561-A, Cr.P.C. As laid down in Asghar Ali's case reported in `1999 SCMR page 1123' by which the Supreme Court of Pakistan on the objection of the respondent converted the civil petition into an appeal and remitted the same before the Election Tribunal for its decision on merits. I am fortified by the view taken by the Supreme Court of Pakistan in Ata Ullah Malik's case reported in "PLD 1964 SC 236". The relevant portion is as under:-- "Ordinary Courts have no objection to treat proceedings of one kind as proceedings of another kind if that become necessary for doing justice between the parties."
' Hence this petition being treated under section 561-A, Cr.P.C. Is decided so on merits. I have considered the arguments of both the D parties. It is an admitted fact that a partnership between the petitioner and the complainant remained intact for four years and the disp9te had arisen between them on the rendition of accounts for which the complainant himself had entered into an agreement with the petitioner No,1 for the appointment of arbitrator on 9-1-2002. Award was given by the Arbitrator which is Annex. B/2' of this petition and the complainant himself filed an application under section 14/15 of the. Arbitration Act, for making the award as rule of the Court which is attached with this petition as Annex. `C/1' .The petitioner No,1 has filed reply to this award alleging that the complainant has prepared these documents himself which are forged and fabricated documents and has denied the contents of the award. The complainant has also got registered criminal case F.I.R. No,153/2002 on 22-4-2002 under section 506, P.P.C., against the petitioner No,
1. The petitioner No,1 has also filed a suit for rendition of accounts on 21-6-2002 which is admittedly pending in the Court of competent jurisdiction between the parties. In such circumstances it is established that the civil litigation between the parties regarding civil dispute of the same matter which has been referred by the complainant is already pending. The objection of the learned counsel for the State is that civil and criminal litigation can go side by side and reliance placed on the case-law cited by him. There is no dispute that there are two views in this connection. The case-law is available on both the sides but this Court can interfere if it feels that the pendency of the criminal proceedings initiated. Subsequently after the civil litigation can be a permanent pressure on one party/accused party for settlement of dispute with the complainant party and it will amount to put pressure on one party to settle the dispute according to the wishes of the complainant party. Similarly it cannot be taken out of consideration that when some dispute is subject-matter of the civil proceedings and whether the fraud has been committed or the record has been tampered with or not has to be decided by the Court of competent jurisdiction merely on the allegations levelled by the complainant the other party cannot be dragged into criminal litigation which will definitely amount to favoring one party by allowing that party to pressurize the second party hence in such circumstances this Court can interfere and pass appropriate orders for providing equal opportunities to both the parties to contest their civil litigation on equal footing.
The Supreme Court of Pakistan in "1982 SCMR page 988" (supra) has held that the criminal proceedings shall remain stayed during the pendency of the civil litigation between the parties on the same subject-matter. The relevant portion is as under:-- "Criminal complaint instituted by the appellant should remain stayed during pendency of civil litigation between the parties on same subject-matter. Order of High Court quashing criminal proceedings modified accordingly."
' This Court has also come to the same view and stayed the proceedings in the complaint filed by one party till the disposal of the civil dispute. In Muhammad Bashir v. Fazal Hussain and 2 others (2002 PCr.LJ page 513) relying upon A. Habib Ahmad v. M.K.G. Scott Christian and 5 others (PLD 1992-SC 53). The relevant portion is as under:- "The second question raised in this petition is that admittedly civil litigation on the same subject is pending before the Courts of competent jurisdiction and the subject-matter is the same which has been subsequently converted into a criminal offence hence where the Civil Court has taken the cognizance and is deciding the same issue, the filing of private complaint and the pendency of the same before the trial Court is abuse of process of law. The consistent view of the superior Courts is that if the matter is sub judice then the proceedings before the trial Court shall be stayed till the final disposal of the civil suits."
' The facts and circumstances of this case also demand the same relief hence this petition is accepted and the proceedings before the Criminal Court till the disposal of the civil dispute pending shall remain stayed.