High court set aside ordered of session court order of stopping criminal trial .
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE.
(JUDICIAL DEPARTMENT)
Criminal Miscellaneous No.3568-M of 2024.
Zahid Maqsood Butt Versus
The State, etc.
JUDGMENT
DATE OF HEARING:
07.06.2024
PETITIONER BY:
Barrister Ahmed Raza Kazim.
STATE BY:
Ms. Asmat Parveen, Deputy District
Public Prosecutor with Bilal, SI.
RESPONDENT BY:
S.M. Zeeshan Mirza & Yamna Baig,
Advocates.
MUHAMMAD AMJAD RAFIQ, J:- Through this Criminal
Miscellaneous under Section 561-A of Cr.P.C., petitioner Zahid
Maqsood Butt, being complainant of case FIR bearing No.38 dated
02.02.2015 registered under section 408 PPC at Police Station New
Anarkali, Lahore has challenged the vires of order dated 20.12.2023
passed by learned Additional Sessions Judge, Lahore whereby a
criminal revision filed by respondent No.02 Usman Khalid, accused
of above case against the order dated 17.06.2023 passed by learned
Magistrate Section-30, Lahore, was accepted and proceedings in
criminal trial (case FIR No.38 of 2015) were ordered to be stopped
under section 249 of Cr.P.C.
02.
Criminal action was initiated against respondent No.02 (the
respondent)with the narration that he being manager/employee has
misappropriated an amount of Rs. 5 crores, therefore, matter was
pending trial on a charge under section 408 PPC when an application
was filed by the respondent to stay the criminal proceedings because
he was not the employee but the partner of the petitioner and in this
respect the respondent, his brother and mother have filed suit for
declaration, cancellation of document, rendition of accounts and
Crl. Misc. No.3568-M of 2024 2
recovery etc. titled “Mst. Robina Khalid etc. VS Zahid Maqsood Butt”
claiming therein an amount of Rs. 9 Crores due against the petitioner.
Such application though was dismissed by the trial Court yet allowed
by the learned revisional Court with following observations;
“Said suit was instituted on 22.10.2015. Process of criminal litigation
and civil litigation continued since 2015 till today side by side. Now
in criminal trial complete prosecution evidence has been recorded.
Statement of petitioner u/s 342 Cr.P.C. is also recorded and the case is
fixed for final arguments. Allegation punishable u/s 408 PPC depends
whether petitioner was an employee of complainant or not, therefore,
question of entrustment does not arise. Same question is before civil
court. If present case is decided earlier, the same would prejudice civil
suit pending between the parties while question regarding status of
petitioner as employee or business partner is a civil issue/matter to be
decided in civil suit. In para No.6 of plaint of said suit, petitioner has
contended that he invested Rs. 45 million as partner in the business of
complainant through bank draft of his account deposited in the
account of complainant. It is to be proved by the petitioner that
amount of Rs. 45 million was transferred from his bank account in the
account of complainant. In these circumstances, it is necessary that
his civil suit be decided earlier and then the present case be decided.”
(Emphasis supplied)
The learned Additional Sessions Judge has passed the impugned
order presumably on the strength of case laws cited in the impugned
order. Basic judgment was “MUHAMMAD AKBAR versus (1) THE
STATE AND (2) Maulvi MUHAMMAD YASIN KHAN” (PLD 1968
Supreme Court 281), wherein an FIR was registered for an alleged
forcible and dishonest snatching of a bus. Dispute of many buses was
already pending trial in a civil suit between the partners due to
dissolution of partnership and bus, subject matter of FIR was also
included therein. The parties have acquiesced the status of each other
in that case; whereas in the present case complainant/petitioner has
not conceded the status of accused/respondent as partner, nor brought
any suit in this respect; therefore, present case hardly had any
identical features. Thus, learned Additional Sessions Judge has
wrongly placed reliance on the cited case as well as case laws
mentioned in the impugned order.
03.
Now coming to the legal position of the case; it is trite that
civil and criminal proceedings can go side by side provided subject
matter before civil Court and criminal Court is the same and is
Crl. Misc. No.3568-M of 2024 3
required to be determined by civil court first being Court of ultimate
jurisdiction. Connotation “same subject matter” does not mean only a
fact in issue relating to such subject but the subject matter as a whole.
In the present criminal litigation subject matter is ‘misappropriation
of amount’ whether as an employee or partner whereas in civil
litigation matter is of ‘entitlement of amount’. Law does not permit
any person to acquire disputed amount through misappropriation. If it
is permitted, this would open an absurd practice of taking the law into
one’s own hands, giving an air to a mechanism of private vengeance
parallel to constitutional arrangement for judicial system of the
country. Even in civil jurisdiction when possession is unlawfully
taken from an illegal occupant of land, Court is bound to restore it to
man in possession as per section 9 of the specific Relief Act, 1877;
same is the mandate of section 145 of Cr.P.C. Thus, law is very clear
on the subject. The observation of learned Additional Sessions Judge
that “If present case is decided earlier, the same would prejudice
civil suit pending between the parties while question regarding status
of petitioner as employee or business partner is a civil issue/matter to
be decided in civil suit” shows his lack of knowledge on the subject.
It is settled principle of law that decision of a criminal Court does not
affect any question pending in civil Court between same parties
because the outcomes and standard of proof in both proceedings are
different, i.e., ‘preponderance of evidence’ in civil cases and ‘proof
beyond reasonable doubt’ in criminal cases. Thus, neither the
principle of Res-judicata nor principle of Double jeopardy is applied
in any manner. Case reported as “TARIQ IRSHAD Versus SPECIAL
JUDGE and others” (2022 P Cr. L J 1050), and case approved for
reporting as “Rasoolan Bibi versus The State etc.” (Writ Petition No.
82843 of 2023) decided on 14.05.2024 are referred in this respect.
04.
Learned Counsel for the petitioner while referring cases
reported as “THE STATE through Prosecutor General Sindh Versus
SHAHZAD RIAZ and others” (2021 P Cr. L J 656):“GULAN Versus
The STATE and 2 others” (2015 YLR 190): “S. MASOODUL
Crl. Misc. No.3568-M of 2024 4
HASSAN NAQVI Versus THE STATE” (1986 P Cr. L J 1272) urged
that when the evidence was complete and case was fixed for final
arguments, the learned revisional Court should have directed the trial
Court for decision of case on merits because if the fact in issue
‘criminal breach of trust by an employee’ is not proved, then Court
can see under sections 237/238 of the Code of Criminal Procedure,
1898 (Cr.P.C.) as to what offence has in fact been committed, or at
the most can acquit the accused but not to stop the proceedings under
section 249 of Cr.P.C., which is meant for a situation when evidence
on record is not sufficient to convict the offender but Court expects a
later progress or development into the matter. Learned Deputy
District Public Prosecutor also supported the above contention.
However, learned Counsel for the respondent defended the impugned
order on the ground that it is discretionary with the Court to order for
stay of proceedings which cannot be interfered, and in this respect
placed reliance on reported cases referred in the impugned order as
“MUHAMMAD AKBAR versus (1) THE STATE AND (2) Maulvi
MUHAMMAD YASIN KHAN” (PLD 1968 Supreme Court 281),
“MUHAMMAD TUFAIL versus THE STATE AND ANOTHER”
(1979 SCMR 437), “ABDUL HALEEM Versus THE STATE AND
OTHERS”(1982 SCMR 988), “RIAZ-UL-HAQ versus MUHAMMAD
ASHIQ JORAH, JUDICIAL MAGISTRATE, PIND DADAN KHAN
and 2 others” (2000 SCMR 991), “A. HABIB AHMED versus
M.K.G. SCOTT CHRISTIAN and 5 others” (PLD 1992 Supreme
Court 353), “SHERAZ AHMAD and others Versus FAYYAZ-UD-DIN
and others” (2005 SCMR 1599), “ABDUL AHAD Versus AMJAD
ALI and others” (PLD 2006 Supreme Court 771), “AKHLAQ
HUSSAIN KAYANI Versus ZAFAR IQBAL KIYANI and others”
(2010 SCMR 1835).The learned Counsel for the respondent however
conceded that such discretion has not been exercised by the learned
trial Court. It has been observed that the learned Additional Sessions
Judge has also not discussed in the impugned order the contours of
order of trial Court so as to override or supersede the discretion
exercised by the Magistrate. The cited judgments were examined
Crl. Misc. No.3568-M of 2024 5
carefully which hardly apply on the facts of present case. Gist of such
judgments has been referred in later part of this order to show in what
situations the criminal proceedings can be stayed. However, in
following two judgments from above cluster, Supreme Court has
declined to order for stay of criminal proceedings; they are as under;
Petitioner obtained an amount of Rs. 83,000/- for sending the respondent
abroad and issued a receipt in this respect. Petitioner claimed such
receipt as forged and sought stay of criminal proceedings, which request
was turned down even by the Supreme Court. (1995 SCMR 1621).
An agreement to sell for a landed property between Bahawal Khan and
Sharif Hussain was brought before civil court against the legal heirs of
Sharif Hussain for specific performance and legal heir got lodged
criminal case against Bahawal Khan for forgery. Quashing and stay of
criminal proceedings were refused up to the Supreme Court. (1979
SCMR 437).
05.
Learned counsel for the petitioner urged that section 249
Cr.P.C. though empowers the Magistrate to stop the proceedings but
guidelines are not available as to when, where and in what situations
it can be invoked. It was attended accordingly, reading of section and
relevant provisions of Cr.P.C. coupled with examining of relevant
case laws, contours of section 249 Cr.P.C. needs to be looked again.
For the sake of reference section is reproduced;
249. Power to stop proceeding when no complaint: In any
case instituted otherwise than upon complaint, a Magistrate
of the First Class, or with the previous-sanction of the
Sessions Judge, any other Magistrate may for reasons to be
recorded by him, stop the proceedings at any stage without
pronouncing any judgment either of acquittal or conviction;
and may thereupon release the accused.
This section authorizes the Magistrate to stop the criminal
proceeding, at any stage, initiated through any mode expect through
private complaint, without pronouncing the judgment either of
acquittal or conviction and then release the accused. Order passed by
Magistrate under this section is required to be backed by reasons
which makes it a judicial order, amenable to revisional jurisdiction;
however, it does not seek execution of bond by the accused
conditional to his release. This connotation is very strong because
wherever in Cr.P.C. the word ‘release’ appears it is made conditional
to executing a bond or sufficient security. Sections 57(2), 124(6),
Crl. Misc. No.3568-M of 2024 6
173, 426, 435, 466, 496 and 497 of Cr.P.C., are referred in this
respect. Whereas like section 249 of Cr.P.C., sections 59(3) and
124(1) Cr.P.C., also talk about a simple release without executing a
bond or providing sufficient security. Bond is executed by the
accused as an assurance to appear before the Court but when he does
not remain in the process any more, execution of bond is not
required. Cases reported as “S. MASOODUL HASSAN NAQVI
Versus THE STATE” (1986 P Cr. L J 1272); “MUHAMMAD
YAMIN Versus The STATE” (2022 YLR Note 10); “Mst.
SARDARAN BIBI versus THE STATE” (PLD 1990 Karachi 233),
are referred in this respect.
6. Section 249 of Cr.P.C., cannot be think of a remedy available to
order for stay of criminal proceedings because firstly, if the
proceedings are pending through a private complaint, rescue under
this section is not available; secondly, not requiring a bond for release
of accused is an indicator that a novel situation has arisen in the
proceedings which require a sine die adjournment of case without a
time-bound schedule. Case reported as “GULAN Versus The STATE
and 2 others” (2015 YLR 190), is referred in this respect. Thus, ‘to
stop the proceeding’ stands distinguished to ‘stay of proceedings’ and
‘stay of prosecution’. Stay of proceedings is done to meet the
situation when further proceeding is conditional to an order to be
made by other Court, the higher Court or by the government.
Instances are like as under;
1. Where any person denies the existence of public right pursuant to
an order made by magistrate for removal of nuisance and
magistrate considers that there is reliable evidence of such denial,
he shall stay the proceeding until the matter of the existence of
such right has been decided by a competent Civil Court. (Section
139-A Cr.P.C.).
2. On information that a dispute likely to cause a breach of the
peace exists concerning any land or water or the boundaries,
Magistrate after inquiry can pass an order in favour of the party
but if later finds that no such dispute exist, he shall stay the
proceedings. (Section 145(5) of Cr.P.C.).
3. Stay of proceedings if prosecution of offence in altered charge
requires previous sanction (Section 230 of Cr.P.C.).
Crl. Misc. No.3568-M of 2024 7
4. When during the course of an inquiry or trial, it appears to a
magistrate that case is one which should be tried or sent for trial
to the Court of Session or the High Court or by some other
Magistrate in such district, he shall stay proceedings and submit
the case, with a brief report explaining its nature, to the Sessions
Judge or to such other Magistrate, having jurisdiction, as the
Sessions Judge, directs. (Section 346 Cr.P.C.)
5. If any party intends and intimates the Court for filing of a transfer
application of case, though it shall not require the Court to
adjourn the case, but the Court shall not pronounce its final
judgment or order until the application has been finally disposed
of by the High Court. Section 526 (8) Cr.P.C.
6. Any matter pending before higher Court with an injunctive order
as not to pronounce final judgment.
7. Matter for witness protection is pending with government under
Witness Protection Act, 2018.
8. Stay of criminal proceedings due to pending matter in any other
Court conditional to further proceedings.
7. Though there is no express provision in Cr.P.C., for stay of
criminal proceedings on the ground that subject matter is pending
determination before civil Court yet there is no specific prohibition in
this respect. Therefore, trial Court is competent to stay criminal
proceedings as held in case reported as “MUHAMMAD AKBAR
versus (1) THE STATE AND (2) Maulvi MUHAMMAD YASIN
KHAN” (PLD 1968 Supreme Court 281).
8.
‘Stay of prosecution’ is discontinuation of criminal
prosecution on all or any of charges in order to give a go to
government decision based on public policy which is regulated
through section 10(3)(f) of the Punjab Criminal Prosecution Service
(Constitution, Functions and Powers) Act, 2006 which says;
“at any stage of a trial before any trial court subordinate to the High
Court before the judgment is passed, the Prosecutor General or any
Prosecutor specifically authorized by him, may, for reasons to be
recorded in writing, inform the court on behalf of the Government that
the Prosecutor shall not prosecute the accused upon the charge and
thereupon all proceedings against the accused shall be stayed and he
shall be discharged of and from the same:
Provided that such discharge shall not amount to an acquittal unless the
court directs otherwise.”
Crl. Misc. No.3568-M of 2024 8
The above section is verbatim of section 265-L of Cr.P.C., which
empowers the Advocate-General to seek stay of prosecution before
the High Court.
Likewise, when an accused is facing a charge containing one
or more heads and is convicted in any of them, the rest of the charges
can be withdrawn by the prosecution or the Court at its own can stay
the inquiry into, or trial of such charges till the conviction attains
finality through Court of appeal. (Section 240 Cr.P.C.)
9.
From the practice and procedure, it can be summarized that
the most suitable situations to stop the proceedings under section 249
Cr.P.C. could be like as under but are not exhaustive;
1) During the trial witnesses of case are reported to have gone
abroad, or
2) Whereabouts of witnesses are not known, or
3) Witnesses have become absconders in another case.
4) Sanction for prosecution has not been received to the Court for
taking cognizance.
5) Prosecution has recommended the case as not fit for trial in the
case review report under section 9(7) of the Punjab Criminal
Prosecution Service (Constitution, Functions and Powers) Act,
2006, (the CPS Act 2006) and Court considers that the
evidence is forthcoming.
6) On receipt of an interim police report under section 173 of
Cr.P.C. when prosecutor examines the reasons assigned for the
delay in the completion of investigation and considers the
reasons compelling, can request the Court for the
postponement of trial as authorized under section 9(6) of the
CPS Act, 2006.
Of course, before resorting to stop the proceedings in situations
mentioned at serial No.1 to 3, the Court in order to procure the
attendance of witnesses shall adopt coercive measures of the nature
as mentioned in a case reported as “MUHAMMAD SHAFI Versus
ADDITIONAL SESSIONS JUDGE, KHARIAN DISTRICT GUJRAT
and 8 others” (PLD 2011 Lahore 551). Stoppage of proceedings is
always contingent to return of witnesses for revival of situation from
Crl. Misc. No.3568-M of 2024 9
the stage it was discontinued. Case reported as “Mst. SHIREEN TAJA
versus THE STATE and 2 others” (2002 P Cr. L J 159) is referred in
this respect.
10.
No settled criterion is available to stay criminal proceedings
and it varies from case to case confining to pure discretion of the
Court; however, for guidance we have some precedents of Supreme
Court which the learned Counsel for the complainant has highlighted
and learned judge has made it part of impugned order and are also
referred in para-4 of this order; gist of such precedents is as follows;
Forged promissory note for the sale of motor car by father of petitioner
was prepared in year 1997 while his father has already died in year 1992.
Stay of criminal proceedings. (2010 SCMR 1835).
Civil suit regarding ownership of property had already been filed…
proceedings in private complaint stayed. (PLD 2006 Supreme Court
771).
An allottee of disputed quarter entered into agreement to sell with
respondent and delivered the possession, both parties filed civil suits.
Interim injunction was granted in favour of respondent. Quashing of
criminal proceedings by High Court was converted to one stay of
criminal proceedings by the Supreme Court. (1999 SCMR 1475).
In order to return overdraft facility availed of, petitioner surrendered his
30% shares in favour of bank but same were sold out to persons dealing
in stock market, such criminal misappropriation was brought into notice
through criminal action by the petitioner but Special Judge (offences in
banks) quashed the criminal proceedings, but Supreme Court converted
it into stay of criminal proceedings till decision of civil matter. (PLD
1992 Supreme Court 353).
Power of Attorney executed in favour of respondent was misused by
him, civil suit was brought for cancellation of said document and
criminal action was also initiated for preparation of forged agreement to
sell on the basis of said power of attorney. Proceedings quashed by the
High Court but stood converted to stay of criminal proceedings by the
Supreme Court till the decision of civil suit. (1982 SCMR 988).
Company lodged a complaint of embezzlement against his employee
who claimed that he was coerced upon and got documents signed
therefore, on the very next day he had brought a civil suit. Criminal
proceedings were ordered to be stayed. (2000 SCMR 991).
Acquittal of accused under section 249-A of Cr.P.C. on the ground that
on same subject matter civil suit is pending was set aside by the Supreme
Court with the consent of parties that pending civil suit, criminal
proceedings shall remain stayed. (2005 SCMR 1599).
Petitioner obtained an amount of Rs. 83,000/- for sending the respondent
abroad and issued a receipt in this respect. Petitioner claimed such
Crl. Misc. No.3568-M of 2024 10
receipt as forged and sought stay of criminal proceedings, which request
was turned down even by the Supreme Court. (1995 SCMR 1621).
An agreement to sell for a landed property between Bahawal Khan and
Sharif Hussain was brought before civil court against the legal heirs of
Sharif Hussain for specific performance and legal heir got lodged
criminal case against Bahawal Khan for forgery. Quashing and stay of
criminal proceedings were refused up to the Supreme Court. (1979
SCMR 437).
11.
Keeping in view the observations made in paragraph 3 & 4
above, this Criminal Miscellaneous is allowed and impugned order
passed by learned Additional Sessions Judge is, therefore, set aside
with the direction to learned trial Court to decide the pending
criminal case forthwith.
(MUHAMMAD AMJAD RAFIQ)
JUDGE
Approved for reporting:
Judge
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